Form of Nominating Agreement by and among BWAY Holding Company



 Exhibit 10.36 
 NOMINATING AGREEMENT 
 NOMINATING AGREEMENT, dated as of [ ], 2007 (this
“Agreement”), by and among BWAY Holding Company, a Delaware corporation (the “Company”), Kelso Investment Associates VI, L.P., a Delaware limited partnership (“KIA VI”) and KEP
VI, LLC, a Delaware limited liability company (“KEP VI”; and, together with KIA VI, “Kelso”). 
 WHEREAS, the Company has determined that it is in its best interests to effect an initial public offering (“IPO”) of shares of common stock, par value $0.01 per share, of the Company (the “Common
Stock”); 
 WHEREAS, in connection with the IPO, the Company and Kelso desire to enter into this Agreement setting forth certain
rights and obligations with respect to the shares of Common Stock owned by Kelso. 
 NOW, THEREFORE, for good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows: 
 SECTION
1. Definitions. As used in this Agreement, the following terms shall have the meanings ascribed to them below: 
 (a) Affiliate:
a Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the Person specified. 
 (b) Board of Directors: the Board of Directors of the Company. 
 (c) Bylaws: the Amended and
Restated Bylaws of the Company, as may be amended from time to time. 
 (d) Certificate of Incorporation: the Amended and Restated
Certificate of Incorporation of the Company, as may be amended from time to time. 
 (e) Kelso Group: means Kelso, Affiliates of Kelso
and any shares of Common Stock over which Kelso or any Affiliate of Kelso has voting or dispositive power. 
 (f) Person: an
individual, corporation, partnership, limited liability company, joint venture, association, trust or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof. 







 SECTION 2. Board Representation. 
 (a) Until such time as the Kelso Group no longer beneficially owns at least 30% of the total number of shares of Common Stock outstanding at any time, the
Company and the Board of Directors shall, acting through the Nominating and Corporate Governance Committee of the Board of Directors, include in the slate of nominees recommended to stockholders of the Company (the “Stockholders”) for
election as directors at any annual or special meeting of the Stockholders at which directors of the Company are to be elected, not less than three individuals designated by Kelso (the “Kelso Nominees”). 
 (b) Until such time as the Kelso Group no longer beneficially owns at least 15% but less than 30% of the total number of shares of Common Stock
outstanding at any time, the Company and the Board of Directors shall include, acting through the Nominating and Corporate Governance Committee of the Board of Directors, in the slate of nominees recommended to Stockholders for election as directors
at any annual or special meeting of the Stockholders at which directors of the Company are to be elected, not less than two Kelso Nominees. 
 (c) Until such time as the Kelso Group no longer beneficially owns at least 5% but less than 15% of the total number of shares of Common Stock outstanding at any time, the Company and the Board of Directors shall, acting through the
Nominating and Corporate Governance Committee of the Board of Directors, include in the slate of nominees recommended to Stockholders for election as directors at any annual or special meeting of the Stockholders at which directors of the Company
are to be elected, not less than one Kelso Nominee. 
 (d) Vacancies arising through the death, resignation or removal of a Kelso Nominee
nominated by Kelso to the Board of Directors pursuant to Section 2(a), 2(b) or 2(c) hereof may be filled by the Board of Directors only with a Kelso Nominee and the director so chosen shall hold office until the next election and until his or
her successor is duly elected and qualified, or until his or her earlier death, resignation or removal. 
 (e) Notwithstanding the provisions
of this Section 2, Kelso shall not be entitled to designate a person as a nominee to the Board of Directors upon a written determination by the Nominating and Corporate Governance Committee of the Company (which determination shall set forth in
writing reasonable grounds for such determination) that such person would not be qualified under any applicable law, rule or regulation to serve as a director of the Company. Other than with respect to the issue set forth in the preceding sentence,
neither the Company nor any other Stockholder shall have the right to object to any Kelso Nominee. 
 (f) The Company shall notify Kelso in
writing of the date on which proxy materials are expected to be mailed by the Company in connection with an election 

  

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of directors at an annual or special meeting of the Stockholders (and such notice shall be delivered to Kelso at least 120 days prior to such expected
mailing date). The Company shall provide Kelso with a reasonable opportunity to review and provide comments on any portion of the proxy materials relating to the Kelso Nominees or the rights and obligations provided under this Agreement and to
discuss any such comments with the Company. The Company shall notify Kelso of any opposition to a Kelso Nominee in accordance with Section 2(e) sufficiently in advance of the date on which such proxy materials are to be mailed by the Company in
connection with such election of directors so as to enable Kelso to propose a replacement Kelso Nominee, if necessary, in accordance with the terms of this Agreement, and Kelso shall have 10 business days to designate another nominee. 
 (g) So long as this Agreement shall remain in effect, subject to applicable legal requirements, the Bylaws and the Certificate of Incorporation shall
accommodate the rights and obligations set forth herein. 
 SECTION 3. Miscellaneous. 
 (a) Governing Law. This Agreement and the rights and obligations of the parties hereunder and the Persons subject hereto shall be governed by, and
construed and interpreted in accordance with, the laws of the State of Delaware, without giving effect to the choice of law principles thereof. 
 (b) Certain Adjustments. The provisions of this Agreement shall apply to the full extent set forth herein with respect to any and all shares of capital stock of the Company or any successor or assign of the Company (whether by
merger, consolidation, sale of assets or otherwise) which may be issued in respect of, in exchange for, or in substitution for the shares of Common Stock, by combination, recapitalization, reclassification, merger, consolidation or otherwise and the
term “Common Stock” shall include all such other securities. 
 (c) Enforcement. Each of the parties agrees that in the
event of a breach of any provision of this Agreement, the aggrieved party may elect to institute and prosecute proceedings in any court of competent jurisdiction to enforce specific performance or to enjoin the continuing breach of this Agreement.
Such remedies shall, however, be cumulative and not exclusive, and shall be in addition to any other remedy which any party hereto may have. Each party hereto hereby irrevocably submits to the non-exclusive jurisdiction of the state and federal
courts in New York for the purposes of any suit, action or other proceeding arising out of or based upon this Agreement or the subject matter hereof. Each party hereto hereby consents to service of process made in accordance with Section 3(f).

  

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 (d) Successors and Assigns. Except as otherwise provided herein, the provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, legal representatives, successors and assigns. 
 (e) Entire Agreement. This Agreement constitutes the full and entire understanding and agreement between the parties with regard to the subject matter hereof and supersedes all prior oral or written (and all contemporaneous oral)
agreements or understandings with respect to the subject matter hereof. 
 (f) Notices. All notices, requests, demands, waivers and
other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given if (a) delivered personally, (b) mailed, certified or registered mail with postage
prepaid, (c) sent by next-day or overnight mail or delivery or (d) sent by fax, as follows (or to such other address as the party entitled to notice shall hereafter designate in accordance with the terms hereof): 

 

			
	 (i)
	 	If to the Company, to it at:
		
		 	BWAY Holding Company
		 	8607 Roberts Drive, Suite 250
		 	Atlanta, Georgia 30350
		 	Telephone: (770) 645-4800
		 	Fax: (770) 587-0186
		 	Attention: Jean-Pierre Ergas or Kevin Kern
		
	 (ii)
	 	If to Kelso, to it at:
		
		 	Kelso & Company
		 	320 Park Avenue, 24th Floor
		 	New York, New York 10022
		 	Telephone: (212) 751-3939
		 	Fax: (212) 223-2379
		 	Attention: General Counsel
		
		 	with a copy (which shall not constitute notice) to:
		 	Debevoise & Plimpton
		 	919 Third Avenue
		 	New York, NY 10022
		 	Telephone: (212) 909-6000
		 	Fax: (212) 909-6836
		 	Attention: Steven J. Slutzky

 All such notices, requests, demands, waivers and other communications shall be deemed to have been received by
(w) if by personal delivery, on the day delivered, (x) if by 

  

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certified or registered mail, on the fifth business day after the mailing thereof, (y) if by next-day or overnight mail or delivery, on the day
delivered, or (z) if by fax, on the day delivered, provided that such delivery is confirmed. 
 (g) Waiver. Waiver
by any party hereto of any breach or default by the other party of any of the terms of this Agreement shall not operate as a waiver of any other breach or default, whether similar to or different from the breach or default waived. No waiver of any
provision of this Agreement shall be implied from any course of dealing between the parties hereto or from any failure by either party to assert its or his or her rights hereunder on any occasion or series of occasions. 
 (h) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. 
 (i) Headings. The headings to sections in this Agreement are for the
convenience of the parties only and shall not control or affect the meaning or construction of any provision hereof. 
 (j) Invalidity of
Provision. The invalidity or unenforceability of any provision of this Agreement in any jurisdiction shall not affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability of
this Agreement, including that provision, in any other jurisdiction. 
 (k) Amendments and Waivers. The provisions of this Agreement
may be amended at any time and from time to time, and particular provisions of this Agreement may be waived or modified, with and only with an agreement or consent in writing signed by each of the parties hereto. 
 (l) Further Assurances. Each party hereto shall do and perform or cause to be done and performed all such further acts and things and shall
execute and deliver all such other agreements, certificates, instruments and documents as any other party hereto or Person subject hereto may reasonably request in order to carry out the intent and accomplish the purposes of this Agreement.

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 IN WITNESS WHEREOF this Agreement has been signed by each of the parties hereto, and shall be effective
as of the date first above written. 
  

			
	BWAY HOLDING COMPANY
		
	By:	 	  

	Name:	 	
	Title:	 	
	
	KELSO INVESTMENT ASSOCIATES VI, L.P.
		
	By:	 	KELSO GP VI, LLC
		 	its General Partner
		
	By:	 	  

	Name:	 	
	Title:	 	
	
	KEP VI, LLC
		
	By:	 	  

	Name:	 	
	Title: