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Exhibit 10
VOTING AGREEMENT
by and between
FORTUNE BRANDS,
INC.,
ACCO WORLD
CORPORATION
and
LANE INDUSTRIES,
INC.
March 15, 2005
VOTING AGREEMENT
VOTING AGREEMENT (this
“ Agreement ”), dated as of March 15, 2005, by
and among FORTUNE BRANDS, INC., a Delaware corporation (“
Fortune ”), ACCO WORLD CORPORATION, a Delaware
corporation (“ ACCO ”), and LANE INDUSTRIES,
INC., a Delaware Corporation (the “ Stockholder
”).
WITNESSETH
:
WHEREAS, Fortune, ACCO,
Gemini Acquisition Sub, Inc., a Delaware corporation (“
Acquisition Sub ”), and General Binding Corporation, a
Delaware corporation (“ GBC ”), propose to enter
into an Agreement and Plan of Merger, dated as of the date hereof
(as amended in accordance with its terms, the “ Merger
Agreement ”; capitalized terms used but not defined
herein shall have the meanings set forth in the Merger Agreement)
providing for a merger of Acquisition Sub with and into GBC, upon
the terms and subject to the conditions set forth in the Merger
Agreement;
WHEREAS, the Stockholder
owns, beneficially and of record, the number of shares of GBC
Common Stock and GBC Class B Common Stock set forth on Exhibit A
hereto (such shares of GBC Common Stock and GBC Class B Common
Stock, together with any other shares of GBC Common Stock and GBC
Class B Common Stock of which the Stockholder acquires beneficial
or record ownership after the date hereof and during the term of
this Agreement, whether upon the exercise of options, warrants or
rights, the conversion or exchange of convertible or exchangeable
securities, or by means of purchase, dividend, distribution or
otherwise, being collectively referred to herein as the “
Subject Shares ”);
WHEREAS, the Stockholder,
Fortune and ACCO desire to enter into this Agreement to provide
for, among other things, (i) the obligation of the Stockholder to
vote its Subject Shares to approve the Merger Agreement, the Merger
and any other transactions contemplated by the Merger Agreement and
(ii) certain restrictions on the sale or other transfer of the
record ownership or the beneficial ownership, or both, of the
Subject Shares by the Stockholder until the termination of this
Agreement;
WHEREAS, as a condition to
the willingness of Fortune and ACCO to enter into the Merger
Agreement, Fortune and ACCO have required that the Stockholder
enter into this Agreement; and
WHEREAS, as a condition to,
and in consideration of, the Stockholder’s willingness to
enter into this Agreement, concurrently with execution of this
Agreement ACCO and the Stockholder have entered into a registration
rights agreement (the “ Registration Rights Agreement
”).
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NOW, THEREFORE, to induce
Fortune and ACCO to enter into, and in consideration of their
entering into, the Merger Agreement, and in consideration of the
premises and the representations, warranties and agreements
contained herein and in the Registration Rights Agreement, the
parties agree as follows:
ARTICLE I
COVENANTS OF THE
STOCKHOLDER
Until the termination of this
Agreement in accordance with Article 7, the Stockholder agrees as
follows:
Section 1.01 Voting of
Subject Shares .
(a) Subject to the second
sentence of Section 8.01 of this Agreement, at any meeting (whether
annual or special, and whether or not an adjourned or postponed
meeting) of stockholders of GBC, however called, or in connection
with any written consent of the stockholders of GBC, to vote upon,
or deliver a written consent with respect to the Merger Agreement,
the Merger and any other transactions contemplated by the Merger
Agreement, or in any other circumstances upon which a vote or other
approval with respect to the Merger Agreement, the Merger and any
other transactions contemplated thereby is sought, the Stockholder
shall vote all Subject Shares in favor of the Merger Agreement, the
Merger and any other transactions contemplated by the Merger
Agreement, as applicable, and shall vote all Subject Shares in
favor of any other actions presented to stockholders that are
necessary or desirable in furtherance of the Merger Agreement, the
Merger and all other transactions contemplated thereby. The
agreements set forth in the immediately preceding sentence shall
equally apply if such approvals were to be sought by the
solicitation of written consents. It is understood and agreed that
the Stockholder shall have no obligation hereunder to (i) call any
meeting of stockholders of GBC, (ii) submit matters for approval of
stockholders of GBC by written consent, or (iii) otherwise present
matters to the vote or approval of stockholders of GBC.
(b) At any meeting of
stockholders of GBC or at any adjournment thereof or in any other
circumstances upon which the Stockholder’s vote, consent or
other approval is sought, the Stockholder shall vote all Subject
Shares against (i) any action or agreement that would reasonably be
expected to result in a breach in any material respect of any
covenant, representation or warranty or any other obligation or
agreement of GBC under the Merger Agreement and (ii) except with
the prior written consent of Fortune, any action or agreement that
would reasonably be expected to adversely affect or delay the
Merger in any respect including, but not limited to: (A) any GBC
Acquisition Proposal; (B) any amendment of GBC’s certificate
of incorporation or bylaws other than as specifically contemplated
by the Merger Agreement, any other proposal, action or transaction
involving GBC or any of its Subsidiaries, which amendment or
other
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proposal, action or transaction would
reasonably be expected to in any manner impede, frustrate, prevent
or nullify the Merger Agreement, the Merger or any of the other
transactions contemplated by the Merger Agreement or change in any
manner the voting rights of any class of GBC’s capital stock;
(C) any change in the Persons who constitute the board of directors
of GBC that is not approved in advance by at least a majority of
the Persons who were directors of GBC as of the date of this
Agreement (or their successors who were so approved); (D) any
material change in the present capitalization or dividend policy of
GBC; or (E) any other material change in GBC’s corporate
structure or business that would reasonably be expected to
adversely affect or delay the Merger in any respect. The
Stockholder further agrees not to commit or agree to take any
action inconsistent with the foregoing.
Section 1.02 Proxies .
The Stockholder hereby irrevocably, but subject to the termination
provisions set forth in Article 7 hereof and the provisions of the
second sentence of Section 8.01, appoints and constitutes
Christopher J. Klein and Mark A. Roche (the “ Proxy
Holders ”), and each of them, with full power of
substitution and resubstitution, as proxy for and attorney in fact
of the Stockholder to act with respect to and vote the Subject
Shares for and in the name, place and stead of the Stockholder at
any annual, special or other meeting of the holders of shares of
GBC Common Stock and GBC Class B Common Stock and at any
adjournment or postponement thereof or pursuant to any written
consent in lieu of meeting, to the fullest extent that the Subject
Shares are entitled to be voted, on the matters specified in
Section 1.01 (the “ Specified Matters ”). The
Stockholder agrees that (i) this proxy shall be irrevocable, but
subject to the termination provisions set forth in Article 7 hereof
and the provisions of the second sentence of Section 8.01, and
coupled with an interest and shall survive the insolvency or
liquidation of the Stockholder and (ii) the Stockholder will take
such further action or execute such other instruments as may be
necessary to effectuate the intent of this proxy and hereby revokes
any proxy or power of attorney previously granted by the
Stockholder with respect to the Subject Shares. Without limiting
the Stockholder’s obligations under Section 1.01, the
Stockholder shall not during the term of this Agreement in
connection with any of the Specified Matters grant any other proxy
or power of attorney with respect to any of the Subject Shares in
respect of the Specified Matters, deposit any of the Subject Shares
into a voting trust or enter into any agreement (other than this
Agreement), arrangement or understanding with any Person, directly
or indirectly, to vote, grant any proxy or give instructions with
respect to the voting of any of the Subject Shares in connection
with any of the Specified Matters. The Stockholder shall be
permitted to vote the Subject Shares in connection with any of the
Specified Matters provided that such vote is in compliance with
Section 1.01 hereof, and in the case of a vote at a meeting is
submitted at least three business days prior to such meeting or in
the case of delivery of a consent is delivered to Fortune for
submission to GBC at least three business days prior to the due
date for submission to GBC, and in any such circumstance in which
the Stockholder’s vote or consent complies with Section 1.01
hereof and the foregoing submission and delivery requirements, the
Proxy Holders will
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not use the proxy granted pursuant to
this Section 1.02 unless the Stockholder’s vote or consent is
subsequently withdrawn. The Stockholder will retain at all times
the right to vote the Subject Shares, in the Stockholder’s
discretion, on all matters other than the Specified Matters that
are at any time or from time to time presented to GBC’s
stockholders generally. For the avoidance of doubt, the proxy
granted pursuant to this Section 1.02 shall be revoked
automatically upon termination of this Agreement pursuant to
Article 7 hereof.
Section 1.03 Transfer
Restrictions . From and after the date hereof and until the
termination of this Agreement pursuant to Article 7, the
Stockholder agrees not to (i) sell, transfer, pledge (except to the
extent that such Subject Shares are pledged as of the date hereof
(the “ Pledged Shares ”)), encumber, assign or
otherwise dispose of (including by gift) (collectively, “
Transfer ”), or enter into any contract, option or
other arrangement or understanding (including any profit sharing
arrangement) with respect to the Transfer of, any of the Subject
Shares to any Person other than pursuant to the Merger Agreement,
(ii) deposit the Subject Shares into a voting trust, enter into any
voting arrangement or understanding, or otherwise Transfer, whether
by proxy, voting agreement or otherwise the right to vote the
Subject Shares or (iii) take any action that would make any of its
representations or warranties contained herein untrue or incorrect
or have the effect of preventing, disabling or impeding the
Stockholder from performing its obligations under this Agreement.
The foregoing restrictions will not apply to (x) Transfers to
affiliates (other than GBC and its Subsidiaries) of the Stockholder
and the entry into related agreements by and among the Stockholder
and/or its affiliates provided that such affiliates have executed
an instrument or instruments, in form and substance reasonably
satisfactory to ACCO, agreeing to be bound by this Agreement to the
same extent as the Stockholder with respect to the Subject Shares
to which such Transfer relates or (y) Transfers pursuant to the
exercise of options to purchase any of the Subject Shares that have
been granted and are outstanding as of the date of this Agreement
(“ Subject Share Options ”), provided that the
Stockholder will use commercially reasonable efforts to cause the
Person exercising such an option to execute an instrument or
instruments, in form and substance reasonably satisfactory to ACCO,
agreeing to be bound by this Agreement to the same extent as the
Stockholder with respect to the Subject Shares to which such
Transfer relates, or (z) Transfers of Pledged Shares as part of the
exercise of remedies under the Amended and Restated Pledge
Agreement dated as of April 26, 2002, as amended, between the
Stockholder and Harris Trust and Savings Bank, as agent (the
“ Pledge Agreement ”) following an Event of
Default (as such term is used in the Pledge Agreement), provided
that at all times prior to the Effective Time the Subject Shares to
which such Transfers relate will be, and any transferee of such
Subject Shares will hold such shares, subject to rights of Fortune
and ACCO hereunder and the irrevocable proxy granted to the Proxy
Holders hereunder.
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Section 1.04 Legending of
Certificates; Nominees Shares . The Stockholder shall use
reasonable efforts to promptly cause the following legend to be
conspicuously noted on each certificate representing the Subject
Shares:
“The shares represented
by this certificate are subject to a Voting Agreement dated as of
March 15, 2005. The Voting Agreement restricts the transferability
of the shares represented by this certificate, and includes a
voting agreement, and an irrevocable proxy to vote the shares
represented by this certificate.”
Section 1.05 Appraisal
Rights . The Stockholder hereby irrevocably waives any rights
of appraisal in connection with the Merger.
Section 1.06 No
Solicitation . From the date of this Agreement and until the
termination of this Agreement pursuant to Article 7 hereof, the
Stockholder shall not, and the Stockholder shall use its reasonable
best efforts to cause its directors, officers, partners, employees,
advisors, affiliates, representatives, agents and other
intermediaries (including any investment banker, accountant, legal
advisor or other consultant) (collectively, “
Representatives ”) not to, directly or indirectly, (i)
initiate, solicit, encourage or knowingly facilitate (including by
way of furnishing information) any inquiries or the making of any
proposal or offer with respect to, or a transaction to effect, any
GBC Acquisition Proposal, (ii) have any discussions with or provide
any confidential information or data to any Person relating to a
GBC Acquisition Proposal, or engage in any negotiations concerning
a GBC Acquisition Proposal, or knowingly facilitate any effort or
attempt to make or implement a GBC Acquisition Proposal, (iii)
approve, recommend, agree to or accept, or propose publicly to
approve, recommend, agree to or accept, any GBC Acquisition
Proposal, (iv) approve, recommend, agree to or accept, or propose
to approve, recommend, agree to or accept, or execute or enter
into, any letter of intent, agreement in principle, merger
agreement, acquisition agreement, option agreement or other similar
agreement related to any GBC Acquisition Proposal or (v) waive,
amend, modify or grant any release under any standstill or similar
agreement or confidentiality agreem
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