Exhibit 2.3
[FORM OF AMENDMENT TO DISTRIBUTION AGREEMENT]
AMENDMENT
TO
DISTRIBUTION AGREEMENT
This Amendment to the Distribution Agreement (this "Amendment") is entered
into effective as of [.], 2002, by and between Ivex Packaging Corporation, a
Delaware corporation ("Ivex"), and Packaging Dynamics Corporation, a Delaware
corporation ("Spinco").
WHEREAS, Ivex and Spinco are parties to that certain Distribution
Agreement, dated March 18, 2002 (the "Distribution Agreement");
WHEREAS, the Distribution Agreement provides that the number of shares of
Spinco Common Stock to be distributed to each Ivex Shareholder in the
Distribution (as such terms are defined in the Distribution Agreement) be
rounded up to the nearest whole share;
WHEREAS, Ivex and Spinco wish to provide instead for the distribution of
cash in lieu of fractional shares in the Distribution; and
WHEREAS, Ivex and Spinco wish to amend the Distribution Agreement with the
consent of Alcoa Inc., a Pennsylvania corporation ("Alcoa"), a third party
beneficiary to the Distribution Agreement, in order to so provide for the
distribution of cash in lieu of fractional shares in the Distribution.
NOW, THEREFORE, in consideration of the foregoing premises and for good and
valuable consideration, the receipt of which is hereby acknowledged, the parties
hereto agree as follows:
1. Amendments to the Distribution Agreement.
a. Article III of the Distribution Agreement is hereby amended by
adding a new Section 3.04, to read in its entirety as follows:
"Fractional Shares. No certificates representing fractional shares
-----------------
of Spinco Common Stock will be distributed in the Distribution. The
Distribution Agent will be directed to determine the number of whole
shares and fractional shares of Spinco Common Stock allocable to
each Ivex Shareholder of record as of the Record Date. Upon the
determination by the Distribution Agent of such number of fractional
shares, as soon as practicable after the Distribution Date, the
Distribution Agent, acting on behalf of the holders thereof, shall
sell such fractional shares for cash on the open market in each case
at the then prevailing market prices and shall disburse to each
holder entitled thereto, in lieu of any fractional share, without
interest, that holder's ratable share of the proceeds of that sale,
after making appropriate deductions of the amount required, if any,
to be withheld for United States federal income Tax purposes."
b. Section 3.03 of the Distribution Agreement is hereby amended by
deleting the following phrase from clause (d) of the first sentence
thereof:
"so held rounded up to the nearest whole share"
such that Section 3.03 as so amended shall read in its entirety as
follows:
"The Distribution. Subject to the terms and conditions set forth in
----------------
this Agreement, (a) immediately prior to the Distribution Time, Ivex
shall deliver to Spinco for cancellation, for the benefit of the
Ivex Shareholders of record on the Distribution Date, a stock
certificate or certificates, endorsed by Ivex in blank, representing
all of the then-outstanding shares of Spinco Common Stock owned by
Ivex, (b) the Distribution shall be effective as of the Distribution
Time and (c) Spinco shall issue and deliver to each of Ivex, DCBS,
CB and Packaging Investors the number of shares of Spinco Common
Stock to be received by such party as set forth in paragraph 2 of
the PD Letter Agreement and (d) Ivex shall instruct the Distribution
Agent to distribute, as soon as practicable after the Distribution
Date, to each Ivex Shareholder of record as of the Distribution
Date, one share of Spinco Common Stock for every five shares of Ivex
Common Stock or shares covered by an Option (except for any Option
with an exercise price of $23.25). The Merger and Distribution shall
be
2
effected such that the Merger Consideration (as defined in the
Merger Agreement) and the shares of Spinco Common Stock to be
distributed in the Distribution are payable and distributable, as
applicable, only to the same Ivex Shareholders, it being understood
that the Distribution shall be effective immediately before the
Merger Effective Time."
2. Governing Law. This Amendment shall be construed in accordance with and
-------------
governed by the law of the State of Delaware, without regard to the
conflict of laws rules thereof.
3. Counterparts; Effectiveness. This Amendment may be signed in any number
---------------------------
of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same
instrument. This Amendment shall become effective when each party hereto
shall have received a counterpart hereof signed by the other party
hereto.
[Signatures on following page.]
3
IN WITNESS WHEREOF, Ivex and Spinco, with the acknowledgment
and consent of Alcoa, have caused this Amendment to be signed by their
respective officers thereunder duly authorized as of the date first written
above.
IVEX PACKAGING CORPORATION
By:_____________________________
Name:
Title:
PACKAGING DYNAMICS CORPORATION
By:_____________________________
Name:
Title:
Acknowledged and Consented to:
ALCOA INC.
By:_____________________________
Name:
Title:
4
