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 [o], 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 and to
make certain other changes relating to the Record Date (as defined in the
Distribution Agreement) and the conditions to the Distribution (as defined in
the Distribution Agreement).
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. The definition of "Record Date" under Section 1.01 of the Distribution
Agreement is hereby amended and shall read in its entirety as follows:
"Record Date" means the date determined by Ivex's Board of Directors as the
record date for determining the Ivex Shareholders of record entitled to
receive the Distribution."
b. Article III of the Distribution Agreement is hereby amended by adding a new
Section 3.04, to read in its entirety as follows:
"Section 3.04 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."
c. Clause (a) of Section 3.02 of the Distribution Agreement is hereby amended
and restated in its entirety as follows:
"(a) the Form 10 shall have become effective under the Exchange Act and
shall have been mailed to all holders of record of Ivex Common Stock as of
the date determined by Ivex's Board of Directors as the record date for
determining the holders of record of Ivex Common Stock entitled to vote at
the Stockholders Meeting (as defined in Section 3.2(a) of the Merger
Agreement);"
d. Section 3.03 of the Distribution Agreement is hereby amended and restated
in its entirety as follows:
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"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 Record 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 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.]
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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:
First Amendment to Stockholders Agreement 4
