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EXHIBIT 1.3
DEALER MANAGER AGREEMENT
August 27, 1997
BT SECURITIES CORPORATION
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
IPC, Inc., a Delaware corporation ("IPC"), proposes to offer
(the "Subordinated Notes Tender Offer") to the holders of its 12 1/2% Senior
Subordinated Notes due 2002 (the "Subordinated Notes"), upon the terms and
subject to the conditions set forth in the Offers to Purchase and Consent
Solicitations Statement dated August 27, 1997 (as amended, modified or
supplemented from time to time in accordance with the terms of this Agreement,
the "Offers to Purchase"), to purchase for cash any and all of the outstanding
Subordinated Notes. Ivex Packaging Corporation, a Delaware corporation
("Packaging," and together with IPC, the "Issuers"), proposes to offer (the
"Discount Notes Tender Offer," and together with the Subordinated Notes Tender
Offer, the "Tender Offers") to the holders of its 13 1/4% Senior Discount
Debentures due 2005 (the "Discount Notes," and together with the Subordinated
Notes, the "Notes"), upon the terms and subject to the conditions set forth in
the Offers to Purchase, to purchase for cash any and all of the outstanding
Discount Notes. Concurrently with the Subordinated Notes Tender Offer, IPC is
soliciting consents (the "Subordinated Notes Consent Solicitation") from holders
of the Subordinated Notes to amendments (the "Proposed Subordinated Notes
Amendments") to certain of the provisions in the indenture governing the
Subordinated Notes (the "Subordinated Notes Indenture"), as described in the
Offers to Purchase. Concurrently with the Discount Notes Tender Offer, Packaging
is soliciting consents (the "Discount Notes Consent Solicitation," and together
with the Subordinated Notes Consent Solicitation, the "Consent Solicitations")
from holders of the Discount Notes to amendments (the "Proposed Discount Notes
Amendments," and together with the Proposed Subordinated Notes Amendments, the
"Proposed Amendments") to certain of the provisions in the indenture governing
the Discount Notes (the "Discount Notes Indenture," and together with the
Subordinated Notes Indenture, the "Indentures"), as described in the Offers to
Purchase. Upon receipt of the Requisite Consents (as defined in the Of-
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fers to Purchase) from holders of the Subordinated Notes, IPC, as issuer, and
United States Trust Company of New York, as trustee under the Subordinated Notes
Indenture (in such capacity, the "Subordinated Notes Trustee"), will enter into
a supplemental indenture that will give effect to the Proposed Subordinated
Notes Amendments (the "Subordinated Notes Supplemental Indenture"). Upon receipt
of the Requisite Consents (as defined in the Offers to Purchase) from holders of
the Discount Notes, Packaging, as issuer, and United States Trust Company of New
York, as trustee under the Discount Notes Indenture (in such capacity, the
"Discount Notes Trustee"), will enter into a supplemental indenture that will
give effect to the Proposed Discount Notes Amendments (the "Discount Notes
Supplemental Indenture," and together with the Subordinated Notes Supplemental
Indenture, the "Supplemental Indentures"). The Tender Offers and Consent
Solicitations will be made on the terms and subject to the conditions set forth
in the Offers to Purchase and the accompanying consents and letters of
transmittal (the "Letters of Transmittal"). Unless otherwise indicated, the use
of the term Subordinated Notes Tender Offer herein shall be deemed to include
the Subordinated Notes Consent Solicitation, the use of the term Discount Notes
Tender Offer herein shall be deemed to include the Discount Notes Consent
Solicitation and the use of the term Tender Offers herein shall be deemed to
include the Consent Solicitations.
IPC and Packaging hereby confirm their agreement with you as
follows:
1. Tender Offer Materials. Each of the Issuers agrees to
furnish you at its own expense with as many copies as you may reasonably request
of the Offers to Purchase, and all attachments thereto, and the Letters of
Transmittal and all other related offering materials prepared by the Issuers for
use in connection with the Tender Offers (collectively, as amended or
supplemented from time to time in accordance with the terms hereof and thereof
and including all of the documents incorporated by reference therein, the
"Offering Materials"). Each of the Issuers authorizes you to use the Offering
Materials in connection with the Tender Offers, and you agree that you shall not
use any material in connection therewith other than the Offering Materials and
such other materials, if any, as the Issuers may approve. Each of the Issuers
agrees to cause a copy of the Offering Materials to be mailed to each record
holder of the Notes and to use its best efforts to cause a copy of the Offering
Materials to be mailed to each beneficial holder of the Notes that is known to
the Issuers. Thereafter, to the extent practicable until the expiration of the
Tender Offers, each of the Issuers shall use its best efforts to cause copies
of the Offering Materials to be mailed to each person who becomes a record
holder of Notes and each beneficial holder
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of Notes that becomes known to the Issuers. You agree to use such information
only in connection with the Tender Offers and not to furnish any such
information to any other person except in connection with the Tender Offers.
The date on which the Offering Materials are first mailed or
otherwise distributed to holders of Notes is hereinafter referred to as the
"Commencement Date."
2. Agreement to Act as Dealer Manager. Each of the Issuers
hereby retains you, and you agree to act, as the exclusive dealer manager ("you"
or the "Dealer Manager") to the Issuers in connection with the Tender Offers,
until the earlier of (i) December 31, 1997 and (ii) (A)in the case of the
Subordinated Notes Tender Offer, the date of the consummation (the "Subordinated
Notes Closing") of the Subordinated Notes Tender Offer (the "Subordinated Notes
Closing Date") and (B) in the case of the Discount Notes Tender Offer, the date
of the consummation (the "Discount Notes Closing") of the Discount Notes Tender
Offer (the "Discount Notes Closing Date"). As Dealer Manager, you agree, in
accordance with your customary practices, to perform diligently those services
in connection with the Tender Offers as are customarily performed by investment
banking concerns in connection with tender offers and consent solicitations of
like nature, including, but not limited to, soliciting tenders and consents
pursuant to the Tender Offers and Consent Solicitations and communicating
generally regarding the Tender Offers with brokers, dealers, commercial banks
and trust companies and other persons, including the holders of the Notes. You
agree to act in accordance with the Tender Offer Materials and agree to furnish
no other written materials to any person in connection with the Tender Offers
without our consent.
(a) Each of the Issuers hereby authorizes you to act as Dealer
Manager in connection with the Tender Offers, and, on the basis of the
representations, warranties and agreements of the Issuers herein
contained and subject to the terms and conditions hereof, you agree to
act as Dealer Manager in connection with the Tender Offers.
(b) Each of the Issuers agrees to use its best efforts to
furnish you, or cause the Subordinated Notes Trustee or Discount Notes
Trustee, as the case may be, to furnish you, as soon as practicable
after the Commencement Date, with cards or lists or copies thereof
showing the names of persons who were the holders of record of Notes as
of the Commencement Date and, to the extent available to the Issuers,
the beneficial holders of the Notes as of the Commencement Date,
together with
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their addresses and the principal amount of Notes held by them.
Additionally, each of the Issuers will use its best efforts to update
such information from time to time during the term of this Agreement
as reasonably requested by you and to the extent such information is
reasonably available to the Issuers within the time constraints
specified. You shall act hereunder as an independent contractor and
nothing contained herein or in such information shall make (x) you the
agent of either of the Issuers or any of their respective affiliates
or (y) either of the Issuers or any of their respective affiliates an
agent of you or any of your affiliates. Nothing contained in this
Agreement shall constitute you a partner of or joint venturer with
either of the Issuers or any of their respective affiliates.
(c) Each of the Issuers agrees that any reference to the
Dealer Manager in any Offering Materials or in any press release or
other document or communication is subject to your prior approval. If
you resign or your engagement hereunder is terminated prior to the
dissemination of the Offering Materials or any other release or
communication, no reference shall be made therein to you. In the event
that applicable law requires a reference to the Dealer Manager, each of
the Issuers agrees to provide you with prompt notice of such
requirement to provide you a reasonable opportunity to seek an
appropriate protective order or other remedy.
(d) Each of the Issuers authorizes you to communicate with any
depositary designated or retained by the Issuers with respect to the
Tender Offers (the "Depositary").
(e) In full payment for services rendered and to be rendered
hereunder by the Dealer Manager, the Issuers shall pay to the Dealer
Manager on the Subordinated Notes Closing Date and/or the Discount
Notes Closing Date in connection with your services rendered hereunder
(i) upon consummation of the Subordinated Notes Tender Offer and the
Discount Notes Tender Offer, a nonrefundable fee, in cash, in the
aggregate amount of $250,000 with respect to both such offers or (ii)
in the event only one of the Subordinated Notes Tender Offer or the
Discount Notes Tender Offer is consummated, a nonrefundable fee, in
cash, in the amount of $125,000. In addition, each of the Issuers
agrees to reimburse the Dealer Manager promptly upon demand made from
time to time, and whether or not the Tender Offers are consummated, for
all reasonable out-of-pocket ex-
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penses (including all reasonable fees and expenses of Xxxxxx Xxxxxx &
Xxxxxxx, counsel for the Dealer Manager) incurred in connection with
your services as Dealer Manager for the Tender Offers.
3. Certain Covenants. Each of the Issuers covenants with you
as follows:
(a) Each of the Issuers will give the Dealer Manager notice of
its intention to amend, supplement or prepare any amendment or
supplement to any Offering Materials, will furnish the Dealer Manager
with copies of such amendment or supplement and will not use any such
amendment or supplement to which the Dealer Manager or counsel for the
Dealer Manager shall reasonably object in writing within three business
days after delivery thereof to the Dealer Manager.
(b) If, during the Tender Offers, any event occurs as a result
of which it shall, in the reasonable judgment of the Issuers or their
counsel or the Dealer Manager or its counsel, be necessary to amend or
supplement any of the Offering Materials in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, or, if for any other reason it is necessary,
in the reasonable judgment of any such person, at any time to amend or
supplement any of the Offering Materials to comply in all material
respects with the procedural requirements of Rule 14e-1 promulgated
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), or any other law, rule or regulation, such person shall promptly
inform the Issuers and the Dealer Manager, and (subject to Section 3(a)
above) the Issuers shall promptly prepare and furnish copies to you of
such amendments or supplements to such Offering Materials, so that
either (i) the statements in the Offering Materials, as so amended or
supplemented, will not, in the light of the circumstances under which
they were made, be misleading or (ii) such compliance is effected.
(c) Each of the Issuers shall comply in all material respects
with the applicable provisions, if any, of the Securities Act of 1933,
as amended, and the rules and regulations of the Securities and
Exchange Commission promulgated thereunder (the "Act"), the Exchange
Act and the Trust Indenture Act of 1939, as amended, and the rules and
regulations of the Commission promulgated thereunder (the "Trust
Indenture Act"), in connection with the Offering Materials, the Tender
Offers and the transactions contemplated hereby and thereby; each of
the Issuers will take on a timely
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basis all actions reasonably necessary or legally required in relation
to the Tender Offers and all other actions contemplated by this
Agreement and by the Offering Materials; and each of the Issuers will
take all necessary corporate action to authorize any amendments to or
modifications of the Tender Offers.
(d) Each of the Issuers will notify you, not less than two
hours prior to the open of business, New York City time, of the
Commencement Date or, after the Commencement Date, the date on which
they propose to extend the Subordinated Notes Tender Offer or the
Discount Notes Tender Offer, as the case may be and, immediately upon
the commencement of each Tender Offer, the Issuers shall advise or
cause the Depositary to advise you upon your reasonable request from
time to time during the period of, and promptly after the expiration
of, each Tender Offer, as to all names and addresses of the holders of
the Notes that have been tendered and in respect of which a consent has
been received, during the immediately preceding day, indicating the
aggregate principal amount of Notes verified to be in proper form for
tender and consent, rejected for tender or consent, and being
processed; and will notify you promptly following expiration of each
Tender Offer on the Expiration Date (as defined in the Offering
Materials), of the aggregate principal amount of Notes in respect of
which a consent has been verified to be in proper form, a tender and
consent has been rejected and which are being processed. The Issuers
shall promptly give you notice of changes in the Expiration Date with
respect to each Tender Offer. The Issuers will not accept tenders and
consents in respect of Notes, unless the conditions to the obligations
of the Dealer Manager set forth in Section 6 hereof have been
satisfied.
(e) The Issuers shall advise you promptly of (i) the
occurrence of any event that might reasonably be expected to cause any
Issuer to amend, withdraw or terminate either Tender Offer, (ii) the
occurrence of any event, or the discovery of any fact, the occurrence
or existence of which would cause any representation or warranty
contained in this Agreement to be untrue or inaccurate in any material
respect, (iii) the issuance of any order or the taking of any other
action by the Commission or any other governmental or regulatory agency
with respect to either Tender Offer (and, if in writing, will promptly
furnish you with a copy thereof), (iv) the occurrence of any event that
might reasonably be expected to cause the Issuers to amend or
supplement any of the Offering Materials, (v) the issuance or, to the
knowledge of the Issuers, the threat-
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ened issuance of any order or the taking of any other action by any
administrative or judicial tribunal or governmental agency or
instrumentality concerning either Tender Offer (and, if in writing,
will promptly furnish you a copy thereof) and (vi) any other
information relating to either Tender Offer which you may from time to
time reasonably request.
(f) The Issuers will not commence the mailing of the Offering
Materials unless the conditions set forth in Section 6 hereof with
respect to the commencement of the Tender Offers shall have been
satisfied and complied with prior to or concurrently with the
commencement of such mailing or shall have otherwise been waived in
writing by the Dealer Manager.
4. Expenses. In addition to the obligations of the Issuers to
pay the fee and to reimburse the Dealer Manager for its reasonable out-of-pocket
expenses as provided in Section 2(e) hereof, each of the Issuers agrees to pay
all costs and expenses incident to the performance of its obligations under this
Agreement, whether or not the transactions contemplated herein are consummated
or this Agreement is terminated pursuant to Section 8 hereof, including, but not
limited to, all costs and expenses incident to (i) the printing, word processing
or other production of documents with respect to such transactions, including
any costs of printing the Offering Materials, (ii) all arrangements relating to
the delivery to the Dealer Manager of copies of the foregoing documents, (iii)
the fees and disbursements of counsel, accountants and any other experts or
advisors retained by the Issuers, (iv) the fees and disbursements of the
Subordinated Notes Trustee and the Discount Notes Trustee and the Depositary and
any information agent and (v) any meetings with holders of Notes relating to the
Tender Offers.
5. Representations and Warranties. Each of the Issuers,
jointly and severally, represents and warrants to and agrees with you that, as
of the Commencement Date, each date that any Offering Materials are published,
sent, given or otherwise distributed (each a "Mailing Date") and the
Subordinated Notes Closing Date and the Discount Notes Closing Date:
(a) The Offering Materials, as amended and supplemented from
time to time, do not and will not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements made therein, in the light of the circumstances
under which they are made, not misleading, except that the Issuers make
no representation or warranty with respect to any statement contained
in the Offering Materials based upon information furnished in
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writing by the Dealer Manager expressly for use therein.
(b) The Offering Materials, as amended and supplemented from
time to time, comply and will comply in all material respects with all
applicable provisions of the Exchange Act, and with all applicable
rules or regulations of any governmental or regulatory authority or
body.
(c) Each of the Issuers has been duly incorporated and is
validly existing in good standing as a corporation under the laws of
the State of Delaware, and each Issuer has all necessary power and
authority to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated
hereby and by the Offering Materials.
(d) This Agreement has been duly authorized, executed and
delivered by each of the Issuers.
(e) The Subordinated Notes Supplemental Indenture, when
executed and delivered by IPC, (assuming the due authorization,
execution and delivery thereof by the Subordinated Notes Trustee, and
assuming that written consents from the Holders of a majority in
aggregate principal amount of the Subordinated Notes outstanding held
by persons other than IPC and its affiliates are received and are valid
and binding consents of such Holders authorizing execution of the
Subordinated Notes Supplemental Indenture), will have been duly
authorized, executed and delivered by, and will be the legal, valid and
binding obligation of, IPC, and the Subordinated Notes Supplemental
Indenture will conform, in all material respects, to the description
thereof in the Offering Materials and will be enforceable against IPC
in accordance with its terms except that the enforcement thereof may be
subject to (i) bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium and other similar laws now or hereafter in
effect relating to creditors' rights generally and (ii) general
principles of equity and the discretion of the court before which any
proceeding therefor may be brought;
(f) The Discount Notes Supplemental Indenture, when executed
and delivered by Packaging, (assuming the due authorization, execution
and delivery thereof by the Discount Notes Trustee, and assuming that
written consents from the Holders of a majority in aggregate principal
amount of the Discount Notes outstanding held by persons other than
Packaging and its affiliates are
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received and are valid and binding consents of such Holders authorizing
execution of the Discount Notes Supplemental Indenture), will have been
duly authorized, executed and delivered by Packaging, and will be the
legal, valid and binding obligation of, Packaging, and the Discount
Notes Supplemental Indenture will conform, in all material respects, to
the description thereof in the Offering Materials and will be
enforceable against Packaging in accordance with its terms except that
the enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium and other similar
laws now or hereafter in effect relating to creditors' rights generally
and (ii) general principles of equity and the discretion of the court
before which any proceeding therefor may be brought;
(g) The Supplemental Indentures will comply in all material
respects with the TIA;
(h) The execution, delivery and performance by each of the
Issuers of this Agreement and consummation of the transactions
contemplated hereby and by the Offering Materials will not conflict
with or constitute or result in a breach or violation of any of (i) the
terms or provisions of, or constitute a default by either of the
Issuers or any of their respective subsidiaries under, any material
indenture, mortgage, deed of trust, loan agreement (other than any loan
agreement that will be repaid in full), note, lease, license, franchise
agreement or other material agreement or instrument to which either of
the Issuers or any of their respective subsidiaries is a party or to
which any of them or their respective properties is subject, subject to
the Issuers' obtaining such consents, waivers and amendments with
respect to the foregoing on or prior to the Consummation Date or the
Commencement Date, as applicable, as may be required under or pursuant
to the foregoing, (ii) the certificate of incorporation or bylaws of
either of the Issuers or any of their respective subsidiaries or (iii)
any statute, judgment, decree, order, rule or regulation (excluding
state securities and "Blue Sky" laws) of any court or governmental
agency or other body applicable to either of the Issuers or any of
their respective subsidiaries or any of their respective properties.
(i) No consent, approval waiver, license or authorization or
other action by, or filing or registration with, any court or
governmental regulatory body or authority is required for the
execution, delivery and performance by the Issuers of this Agreement or
the
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consummation of the Tender Offers as contemplated by the Offering
Materials.
The representations and warranties set forth in this Section 5
shall remain operative and in full force and effect regardless of (i) any
investigation made by or on behalf of any indemnified party referred to in
Section 7, (ii) any termination of this Agreement or (iii) any withdrawal by you
pursuant to Section 6 or otherwise; provided, that with respect to any
termination or withdrawal, such representations and warranties shall be limited
to the period prior to such termination or withdrawal.
6. Conditions of the Dealer Manager's Obligations. Your
obligations to act and to continue to act (as the case may be) as Dealer Manager
shall be subject, in your reasonable discretion, to the accuracy in all material
respects of the representations and warranties contained herein as of the
Commencement Date, as of each Mailing Date and as of each Closing Date as if
made on and as of such date (except as expressly provided therein), to the
accuracy in all material respects of the statements contained in certificates
delivered by the officers of the Issuers pursuant to the provisions hereof, to
the performance by each of the Issuers in all material respects of its covenants
and agreements hereunder and to the following additional conditions unless
waived in writing by the Dealer Manager:
(a) There shall not have been any legal action, order, decree
or other administrative proceeding instituted or threatened against
either of the Issuers or any of their respective subsidiaries or
against you relating to the Tender Offers or the Dealer Manager's
activities in connection therewith or any of the other transactions
contemplated hereby or by the Offering Materials.
(b) The proceedings taken at or prior to the Closing Date in
connection with the Tender Offers and the other transactions
contemplated hereby and by the Offering Materials shall be in form and
substance reasonably satisfactory to you and your counsel, and such
counsel shall have been furnished with all such documents and
certificates as they may reasonably request in order to evidence the
accuracy and completeness in all material respects of any of the
representations or warranties of the Issuers, the performance in all
material respects of any covenants of the Issuers theretofore to be
performed, or the compliance with any of the conditions herein
contained.
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(c) On the Commencement Date, you shall have received, dated
as of such date, (i) the opinion of Skadden, Arps, Slate, Xxxxxxx &
Xxxx (Illinois), counsel for the Issuers, substantially in the form of
Exhibit A hereto and (ii) the opinion of Xxxx Xxxxxxxxx, general
counsel for the Issuers, substantially in the form of Exhibit B hereto.
(d) On the Subordinated Notes Closing Date, you shall have
received, dated as of such date, the opinion of Skadden, Arps, Slate,
Xxxxxxx & Xxxx (Illinois), counsel for the Issuers, substantially in
the form of Exhibit C hereto.
(e) On the Discount Notes Closing Date, you shall have
received, dated as of such date, the opinion of Skadden, Arps, Slate,
Xxxxxxx & Xxxx (Illinois), counsel for the Issuers, substantially in
the form of Exhibit D hereto.
(f) Subsequent to the respective dates of the most recent
financial statements contained or incorporated by reference in the
Offering Materials, there shall have been no material adverse change in
the general affairs, management, business, condition (financial or
other) or results of operations of either of the Issuers and their
respective subsidiaries taken as a whole (a "Material Adverse Change").
(g) Neither the Tender Offer nor any of the other transactions
contemplated hereby or by the Offering Materials shall be enjoined
(temporarily or permanently) and no restraining order or other
injunctive order shall have been issued or any action, suit or
proceeding shall have been commenced with respect to the Tender Offer,
this Agreement or any of the other transactions contemplated hereby or
by the Offering Materials, before any court or governmental authority.
(h) On the Commencement Date, the Subordinated Notes Closing
Date and the Discount Notes Closing Date, the Dealer Manager shall have
received a certificate, dated such date, of the Chief Financial Officer
of IPC or Packaging, as the case may be, to the effect that:
(i) The representations and warranties in this
Agreement are true and correct in all material respects as if
made on and as of such date, and each of the Issuers has
performed in all material respects all covenants and
agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to such date;
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(ii) Subsequent to the date as of which information
is given in the Offering Materials, as of the date hereof,
there has not been any Material Adverse Change; and
(iii) To the best of his knowledge, neither the
Tender Offer, nor any of the other transactions contemplated
hereby or by the Offering Materials, has been enjoined
(temporarily or permanently).
(i) On or before the Subordinated Notes Closing Date, IPC and
the Subordinated Notes Trustee shall have executed and delivered the
Subordinated Notes Supplemental Indenture, which shall be reasonably
satisfactory in form and substance to the Dealer Manager and Xxxxxx
Xxxxxx & Xxxxxxx, counsel for the Dealer Manager, and shall be in full
force and effect.
(j) On or before the Discount Notes Closing Date, Packaging
and the Discount Notes Trustee shall have executed and delivered the
Discount Notes Supplemental Indenture, which shall be reasonably
satisfactory in form and substance to the Dealer Manager and Xxxxxx
Xxxxxx & Xxxxxxx, counsel for the Dealer Manager, and shall be in full
force and effect.
On or before the Commencement Date, the Subordinated Notes
Closing Date and the Discount Notes Closing Date, the Dealer Manager and counsel
for the Dealer Manager shall have received such further documents, certificates
and schedules or instruments relating to the business, corporate, legal and
financial affairs of the Issuers and their subsidiaries as they shall have
heretofore reasonably requested.
Each of the Issuers shall furnish to the Dealer Manager such
conformed copies of such opinions, certificates, letters, schedules, documents
and instruments in such quantities as the Dealer Manager shall reasonably
request.
In the event that any of the foregoing conditions is not met
when required to be met, then you shall be entitled to withdraw as Dealer
Manager in connection with any Tender Offer without any liability or penalty
(except that the fee provided for in Section 2(e) hereof shall not be payable in
the event you so withdraw) to you or any other "indemnified party" (as defined
in Section 7) and without loss of any right to the payment of all expenses
payable hereunder.
7. Indemnification. Each of the Issuers, jointly and
severally, agrees to indemnify and hold harmless the Dealer Manager and its
affiliates, the directors, officers, agents, representatives and employees of
the Dealer Manager or its af-
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filiates and each other person, if any, controlling the Dealer Manager and its
respective affiliates within the meaning of Section 15 of the Act or Section 20
of the Exchange Act (each, an "indemnified party") from and against any and all
losses, actions, claims, damages or liabilities, and will reimburse any
indemnified party for all reasonable costs and expenses (including reasonable
counsel fees) as they are incurred by such indemnified party in connection with
investigating, preparing to defend or defending any such action or claim caused
by or arising out of, or in connection with, the Tender Offers (whether or not
consummated), the performance by you of the services contemplated by this
Agreement, an untrue statement or alleged untrue statement of a material fact in
any of the Offering Materials or an omission or an alleged omission to state a
material fact in any of the Offering Materials necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or the transmittal of the Offering Materials to the Holders, or that
arise out of or are based upon any failure to accept Notes or consents properly
tendered pursuant to the Tender Offers; provided, however, that the Issuers will
not be liable to any indemnified party to the extent that any claims,
liabilities, losses, damages, costs or expenses are finally judicially
determined by a court of competent jurisdiction to have resulted from (x) the
gross negligence, bad faith or willful misconduct of such indemnified party or
(y) the breach by such indemnified party of this Agreement.
The Issuers will not, without the prior written consent of the
Dealer Manager, which consent shall not be unreasonably withheld or delayed,
settle or compromise or consent to the entry of any judgment in any pending or
threatened claim, action, suit or proceeding in respect of which indemnification
may be sought by an indemnified party hereunder (whether or not any indemnified
party is a party to such claim, action, suit or proceeding), unless such
settlement, compromise or consent includes an unconditional release of the
indemnified parties from all liability arising out of such claim, action, suit
or proceeding.
Promptly after receipt by an indemnified party of notice of
the commencement of any action, such indemnified party will, if a claim in
respect thereof is to be made against the Issuers under this Section 7, notify
the Issuers of the commencement thereof; but the omission so to notify the
Issuers will not relieve the Issuers from any liability that it may have to any
indemnified party otherwise than under this Section 7. In case any such action
is brought against any indemnified party, and it notifies the Issuers of the
commencement thereof, the Issuers will be entitled to participate therein and,
to the extent that it may wish, to assume the defense
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thereof, with counsel reasonably satisfactory to such indemnified party;
provided, however, that if the defendants in any such action include both the
indemnified party and any indemnifying party and the indemnified party shall
have been advised by counsel that the representation of both the indemnified
party and the indemnifying party by such counsel would constitute a conflict of
interest under applicable rules of professional conduct, then the indemnifying
parties shall not have the right to direct the defense of such action on behalf
of such indemnified party or parties and such indemnified party or parties shall
have the right to select separate counsel to defend such action on behalf of
such indemnified party or parties. After notice from the indemnifying parties to
such indemnified party of its election so to assume the defense thereof and
approval by such indemnified party of counsel appointed to defend such action,
the indemnifying parties will not be liable to such indemnified party under this
Section 7 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in connection
with the defense thereof, unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the immediately preceding
sentence (it being understood, however, that in connection with such action the
indemnifying parties shall not be liable for the expenses of more than one
separate counsel (in addition to local counsel) in any one action or separate
but substantially similar actions in the same jurisdiction arising out of the
same general allegations or circumstances, designated by the Dealer Manager,
representing the indemnified parties, who are parties to such action or actions)
or (ii) the indemnifying parties have authorized the employment of counsel for
the indemnified party at the expense of the indemnifying parties. The
indemnifying parties will not be liable for the costs and expenses of any
settlement of such action effected by such indemnified party without the consent
of the indemnifying parties, unless such indemnified party waived in writing its
rights under this Section 7, in which case the indemnified party may effect such
a settlement without such consent.
In circumstances in which the indemnity agreement provided for
in the preceding paragraphs of this Section 7 is unenforceable or insufficient
to hold harmless an indemnified party in respect of any losses, claims, damages
or liabilities (or actions in respect thereof), each indemnifying party, in
order to provide for just and equitable contribution, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect (i) the relative benefits received by
the indemnifying party or parties on the one hand and the indemnified party on
the other from the Tender Offers or (ii) if
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the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault of
the indemnifying party or parties on the one hand and the indemnified party on
the other in connection with such losses, claims, damages or liabilities (or
actions in respect thereof). The relative benefits received by the Issuers on
the one hand and the indemnified parties on the other shall be deemed to be in
the same proportion as (i) the aggregate principal amount of Notes purchased
pursuant to the Tender Offers bears to (ii) the fees paid or proposed to be paid
by the Issuers to such indemnified party under this Agreement. The indemnity,
reimbursement and contribution obligations of the Issuers under this Agreement
shall be in addition to any rights that the Dealer Manager or any other
indemnified party may have at common law or otherwise. The Issuers and the
Dealer Manager agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation (even if the
Issuers on the one hand and the indemnified parties on the other hand were
treated as one entity for such purpose) or by any other method of allocation
that does not take into account the equitable considerations referred to in the
first sentence of this paragraph. Notwithstanding any other provision of this
paragraph, the indemnified parties shall not be obligated to make contributions
hereunder that in the aggregate exceed the total fees received by the Dealer
Manager under this Agreement, less the aggregate amount of any damages that the
indemnified parties have otherwise been required to pay for which
indemnification is provided for hereunder. For purposes of this paragraph, each
person, if any, who controls the Dealer Manager within the meaning of Section 15
of the Act or Section 20 of the Exchange Act shall have the same rights to
contribution as such Dealer Manager.
8. Termination. This Agreement may be terminated (i) by the
Dealer Manager at any time upon notice to the Issuers if (A) the Issuers shall
mail or otherwise distribute or propose to mail or otherwise distribute any
supplement to any Offering Materials to which the Dealer Manager shall
reasonably object or that shall be reasonably disapproved by its counsel, (B) at
any time prior to the Subordinated Notes Closing, the Subordinated Notes Tender
Offer is
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terminated or withdrawn for any reason (other than failure of the
Dealer Manager to perform its obligations hereunder) or any restraining order or
other injunctive order shall have been issued or any action, suit or proceeding
shall have been commenced with respect to the Subordinated Notes Tender Offer,
this Agreement or any of the other transactions contemplated by the Offering
Materials, before any court or governmental authority that makes it inadvisable
for the Dealer Manager, in its reasonable discretion, to continue to act as
Dealer Manager hereunder, (C) at any time prior to the Discount Notes Closing,
the Discount Notes Tender Offer is terminated or withdrawn for any reason (other
than failure of the Dealer Manager to perform its obligations hereunder) or any
restraining order or other injunctive order shall have been issued or any
action, suit or proceeding shall have been commenced with respect to the
Discount Notes Tender Offer, this Agreement or any of the other transactions
contemplated by the Offering Materials, before any court or governmental
authority that makes it inadvisable for the Dealer Manager, in its reasonable
discretion, to continue to act as Dealer Manager hereunder, or (D) any of the
conditions specified in Section 6 shall not have been fulfilled or waived or
(ii) by the Issuers if at any time the Issuers determine not to consummate the
Tender Offers. Termination of this Agreement pursuant to this Section 8 shall be
without liability of any party to any other party except as provided in Section
11 hereof.
9. Notices. Notice given pursuant to any of the provisions of
this Agreement shall be in writing and shall be mailed, telecopied or delivered
(a) to the Issuers:
c/o Ivex Packaging Corporation
000 Xxx-Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
with a copy to:
c/o Ivex Packaging Corporation
000 Xxx-Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxxx 00000
Attention: Vice President and General Counsel
and
Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois)
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
or (b) to the Dealer Manager:
BT Securities Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mr. Xxx Xxxxxxx
with a copy to:
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Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Any notice given hereunder may be made by telecopier or
telephone, but if so made shall be subsequently confirmed in writing.
10. Tombstone. The Issuers acknowledge that the Dealer Manager
may at any time after consummation of the Tender Offers place an announcement in
such newspapers and periodicals as it may choose, at its own cost (but subject
to the reasonable approval of the Issuers), stating that the Dealer Manager
acted as dealer manager to the Issuers in connection with the Tender Offers.
11. Survival. The provisions of Sections 2(e) and 4 hereof,
the indemnity and contribution agreements contained in Section 7 hereof and the
representations and warranties set forth in Section 5 hereof shall remain
operative and in full force and effect regardless of (i) any investigation made
by or on behalf of the Dealer Manager, or by or on behalf of any affiliate of
the Dealer Manager or any person controlling the Dealer Manager or such
affiliate, (ii) consummation of the Tender Offers or (iii) any termination of
this Agreement or of the Dealer Manager's engagement hereunder, and shall be
binding upon and shall inure to the benefit of, any successors, assigns, heirs
and personal representatives of the Issuers, the Dealer Manager and the
indemnified parties referred to in Section 7 hereof.
12. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS PRINCIPLES OF CONFLICTS OF LAWS AND ANY RIGHT TO TRIAL BY JURY
WITH RESPECT TO ANY CLAIM, ACTION, SUIT OR PROCEEDING ARISING OUT OF OR
CONTEMPLATED BY THIS AGREEMENT IS HEREBY WAIVED. THE PARTIES HEREBY SUBMIT TO
THE NONEXCLUSIVE JURISDICTION OF THE FEDERAL AND NEW YORK STATE COURTS LOCATED
IN THE CITY OF NEW YORK IN CONNECTION WITH ANY DISPUTE RELATED TO THIS AGREEMENT
OR ANY MATTERS CONTEMPLATED HEREBY.
13. Entire Agreement. This Agreement constitutes the
entire agreement among the parties hereto and supersedes all prior agreements,
understandings and arrangements, oral or written, among the parties hereto with
respect to the subject matter hereof.
14. Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed to be
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an original, but all of which together shall constitute one and the same
instrument.
15. Benefits of Agreement. This Agreement has been and is made
solely for the benefit of the parties hereto and of the persons and controlling
persons referred to in Section 7 herein and their respective successors, assigns
and heirs, and no other person shall acquire or have any right under or by
virtue of this Agreement.
16. Headings. The section headings in this Agreement have
been inserted as a matter of convenience of reference only and are not a part
hereof.
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If the foregoing correctly sets forth our understanding,
please indicate your acceptance thereof in the space provided below for that
purpose, whereupon this letter shall constitute a binding agreement between the
Issuers and the Dealer Manager.
Very truly yours,
IPC, INC.
By: /s/ G. XXXXXXX XXXXXXXXX
----------------------------
Name: G. Xxxxxxx Xxxxxxxxx
Title: Vice President
IVEX PACKAGING CORPORATION
By: /s/ G. XXXXXXX XXXXXXXXX
----------------------------
Name: G. Xxxxxxx Xxxxxxxxx
Title: Vice President
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
BT SECURITIES CORPORATION
By: /s/ XXXXX X. XXXXXXXX
----------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
