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EXHIBIT 4.3
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REGISTRATION RIGHTS AGREEMENT
By and Among
ACADIA PARTNERS, L.P.,
ACADIA ELECTRA PARTNERS, L.P.,
FWHY-COINVESTMENTS I PARTNERS, L.P.,
FWHY-COINVESTMENTS III PARTNERS, L.P.,
ROSECLIFF-IPMC 1991 PARTNERS, L.P.
ROSECLIFF-IVEX PACKAGING 1990 PARTNERS, L.P.,
and
IVEX PACKAGING CORPORATION
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TABLE OF CONTENTS
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1. SECURITIES SUBJECT TO THIS AGREEMENT 1
1.1 Termination of Original Agreement 1
1.2 Definitions 1
1.3 Registrable Securities 1
1.4 Owners of Registrable Securities 2
2. SHELF REGISTRATION 2
2.1 Request for Shelf Registration 2
2.2 Effective Shelf Registration and Expenses 3
2.3 Underwriting Procedures 3
2.4 Selection of Underwriters 4
3. DEMAND REGISTRATION 4
3.1 Request for Demand Registration 4
3.2 Effective Demand Registration and Expenses 4
3.3 Underwriting Procedures 5
3.4 Selection of Underwriters 5
4. PIGGY-BACK REGISTRATION OF COMMON STOCK 5
5. HOLDBACK AGREEMENTS 6
6. REGISTRATION PROCEDURES 7
7. REGISTRATION EXPENSES 11
8. INDEMNIFICATION; CONTRIBUTION 12
8.1 Indemnification by Ivex 12
8.2 Indemnification by Each Holder 13
8.3 Conduct of Indemnification Proceedings 13
8.4 Contribution 14
9. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS 15
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10. COVENANT OF HOLDERS OF REGISTRABLE SECURITIES 15
11. RULE 144 15
12. MISCELLANEOUS 15
12.1 Recapitalization, Exchanges, etc., Affecting Ivex's Capital
Stock 15
12.2 No Inconsistent Agreements 16
12.3 Remedies 16
12.4 Amendments and Waivers 16
12.5 Notices 16
12.6 Successors and Assigns 17
12.7 Counterparts 17
12.8 Headings 18
12.9 Governing Law 18
12.10 Severability 18
12.11 Entire Agreement 18
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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of ,1997 (the "Agreement"),
among IVEX PACKAGING CORPORATION ("Ivex"), a Delaware corporation, ACADIA
PARTNERS, L.P., a Delaware limited partnership ("Acadia"), ACADIA ELECTRA
PARTNERS, L.P., a Delaware limited partnership ("Electra"), FWHY Coinvestments
I Partners, L.P., a Texas limited partnership ("FWHY-I"), FWHY-COINVESTMENTS
III PARTNERS, L.P., a Texas limited partnership ("FWHY-III"), ROSECLIFF-IPMC
1991 PARTNERS, L.P., a Delaware limited partnership ("Rosecliff"), and
Rosecliff- Ivex Packaging 1990 Partners, L.P., a Delaware limited partnership
("RIP"). Acadia, Electra, FWHY-I, FWHY-III, Rosecliff and RIP are sometimes
hereinafter referred to as the "Holders".
In order to induce the Holders to terminate the Original Agreement (as
hereinafter defined), Ivex has agreed to provide the registration rights with
respect to the Registrable Securities (as hereinafter defined) as set forth in
this Agreement.
In consideration of the foregoing recitals, the mutual covenants
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. SECURITIES SUBJECT TO THIS AGREEMENT
1.1 Termination of Original Agreement. The parties hereto
agree that the Registration Rights Agreement, dated December 17, 1992, among
Ivex and the Buyers is hereby terminated and null and void, effective the date
hereof.
1.2 Definitions. "Registrable Securities" means the Common
Stock of Ivex (including any dividends of Common Stock paid thereon), and
"Common Stock" means the common stock, par value $0.01 per share of Ivex.
1.3 Registrable Securities. Only Registrable Securities shall
be eligible for registration pursuant to the terms hereof. For purposes of this
Agreement, Registrable Securities will cease to be Registrable Securities when
(i) a registration statement covering such Registrable Securities has been
declared effective under the Securities Act of 1933, as amended (the "Act"), by
the Securities and Exchange Commission (the "SEC"), and such Registrable
Securities have been disposed of pursuant to such effective registration
statement or (ii) the entire
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amount of Registrable Securities proposed to be sold are, or, in the opinion of
counsel to Ivex, may, be distributed to the public pursuant to Rule 144 (or any
successor provision then in force) under the Act or otherwise without
registration under the Act.
1.4 Owners of Registrable Securities. A person is deemed to be
an owner of Registrable Securities whenever such person owns of record Regis-
trable Securities. If Ivex receives conflicting instructions, notices or
elections from two or more persons with respect to the same Registrable
Securities, Ivex shall act upon the basis of the instructions, notice or
election received from the registered owner of such Registrable Securities.
2. SHELF REGISTRATION
2.1 Request for Shelf Registration. Ivex shall file as soon as
reasonably practicable upon the written request of Acadia and/or the Holder or
Holders of five percent (5.0%) or more of the aggregate outstanding shares of
Common Stock of Ivex, one or more "shelf" registration statements with respect
to the Registrable Securities on any appropriate form pursuant to Rule 415 under
the Act and/or any similar rule that may be adopted by the SEC (the "Shelf
Registration"). Notwithstanding the immediately preceding sentence or any other
provision of this Agreement, Ivex shall have no obligation to register the
Registrable Securities under this Section 2.1 until after the time Ivex is
first required to file periodic reports under the Securities Exchange Act of
▇▇▇▇ (▇▇▇ "▇▇▇▇▇▇▇▇ ▇▇▇").
At least fifteen (15) days prior to the first anticipated
filing date of each Shelf Registration, Ivex shall notify each Holder of the
information Ivex reasonably requires from each such Holder if they elect to have
any of their Registrable Securities included in the Shelf Registration (the
"Requested Information"). If within five (5) business days prior to the first
anticipated filing date, Ivex has not received the Requested Information in
writing from any of such Holders (the "Non-Responsive Holders"), Ivex may file
the Shelf Registration without including the Registrable Securities of the
Non-Responsive Holders. At any time subsequent to the date of the first filing
of the Shelf Registration and up to the date that is ten (10) business days
prior to the first anticipated effective date of such Shelf Registration, a
Non-Responsive Holder may notify Ivex in writing that they elect to have all or
part of their Registrable Securities included in the Shelf Registration and Ivex
shall so include such Registrable Securities in such Shelf Registration;
provided, however, that such Non-Responsive Holders
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shall have furnished to Ivex in writing all Requested Information on or prior to
the tenth (10th) business day prior to the first anticipated effective date of
such Shelf Registration.
2.2 Effective Shelf Registration and Expenses. Ivex shall use
its best efforts to have the Shelf Registration declared effective as soon as
reasonably practicable after such filing and shall use reasonable efforts to
keep the Shelf Registration continuously effective for a period of nine (9)
months from the date such Shelf Registration is declared effective. Ivex shall
have the right to postpone for up to one hundred and eighty (180) days any
registration requested pursuant to this Section 2 if, in the opinion of the
Board of Directors of Ivex, such registration would interfere with any material
acquisition or financing transaction then being pursued by Ivex. Ivex may not
exercise its right to so delay registration under this Section 2 more than once
in any twelve-month period.
Ivex shall supplement or amend, if necessary, each Shelf
Registration, as required by the registration form utilized by Ivex, by the
instructions applicable to such registration form, by the Act or the rules and
regulations promulgated thereunder or as reasonably required by the Holder or
Holders of (or any underwriter for) a majority of the aggregate outstanding
shares of Registrable Securities held by the Holders hereunder to which such
Shelf Registration relates, and shall furnish to the Holders of the Registrable
Securities to which the Shelf Registration relates copies of any such supplement
or amendment prior to its being used and/or filed with the SEC. Ivex shall pay
all Registration Expenses (as defined in Section 7 hereof) in connection with
each Shelf Registration, whether or not it becomes effective. No Shelf
Registration shall include any securities other than Registrable Securities
unless the Holder or Holders of a majority of the aggregate outstanding shares
of Registrable Securities held by the Holders hereunder to which the Shelf
Registration relates consent to such inclusion; provided, however, that this
Agreement shall not prohibit the filing of shelf registrations other than a
Shelf Registration.
2.3 Underwriting Procedures. If the Holder or Holders of a
majority of the aggregate outstanding shares of Registrable Securities held by
the Holders hereunder to which the Shelf Registration relates so elect, the
offering of such Registrable Securities pursuant to a Shelf Registration shall
be in the form of an underwritten offering and the managing underwriter or
underwriters selected for such offering shall be the Approved Underwriter (as
defined below). In such event, if the Approved Underwriter advises Ivex in
writing that in its opinion the
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aggregate amount of Registrable Securities requested to be included in such
offering is sufficiently large as to have a material adverse effect on the
success of such offering, Ivex shall include in such registration only the
aggregate amount of Registrable Securities that, in the opinion of the Approved
Underwriter, may be sold without any such material adverse effect and shall
reduce, pro rata, the amount of Registrable Securities to be included by each
Holder in such offering.
2.4 Selection of Underwriters. If any Shelf Registration is in
the form of an underwritten offering, the Holder or Holders of a majority of the
aggregate outstanding shares of Registrable Securities held by the Holders
hereunder to which such Shelf Registration relates shall select and obtain the
investment banker or investment bankers and manager or managers that will
administer the offering (the "Approved Underwriter"); provided, that the
Approved Underwriter shall be reasonably acceptable to Ivex. The Holders of
Registrable Securities to be included in such offering shall pay pro rata all
discounts and commissions of the Approved Underwriter.
3. DEMAND REGISTRATION
3.1 Request for Demand Registration. At any time when a Shelf
Registration with respect to Registrable Securities is not in effect under the
Act or a Shelf Registration is not available for use by the Holders of the
Registrable Securities hereunder, Acadia and/or the Holder or Holders of five
percent (5.0%) or more of the aggregate outstanding shares of Common Stock of
Ivex may make a written request for registration of the Registrable Securities
under the Act and under the securities or blue sky laws of any jurisdiction
designated by such Holder or Holders (a "Demand Registration"). This request for
a Demand Registration shall specify the amount of the Registrable Securities
proposed to be sold and the intended method of disposition thereof. Upon a
request for a Demand Registration, Ivex shall promptly take such steps as are
necessary or appropriate to prepare for the registration of the Registrable
Securities to be registered; provided that Ivex shall have the right to postpone
for up to 180 days any registration requested pursuant to this Section 3 if, in
the opinion of the Board of Directors of Ivex, such registration would interfere
with any material acquisition or financial transaction then be pursued by Ivex.
Ivex may not exercise its right to delay registration under this Section 3 more
than once in any twelve month period.
3.2 Effective Demand Registration and Expenses. Ivex shall,
subject to Section 3.3 hereof, use its best efforts to effect three (3) Demand
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Registrations for the Registrable Securities pursuant to this Agreement. If a
Demand Registration is not declared effective on or before the expiration of one
hundred and twenty (120) days after a request is delivered under Section 3.1,
then Ivex shall be required to effect one (1) additional Demand Registration for
the Registrable Securities included in such Demand Registration pursuant to the
terms of this Agreement. A registration shall not count as a Demand Registration
until it has become effective and remains continuously effective for not less
than one hundred and twenty (120) days. Ivex shall use its best efforts to cause
any such Demand Registration to become effective not later than ninety (90) days
after it receives a request under Section 3.1 hereof. In any registration
initiated as a Demand Registration, Ivex shall pay all Registration Expenses in
connection therewith, whether or not such Demand Registration becomes effective.
3.3 Underwriting Procedures. If the Holder or Holders of a
majority of the aggregate outstanding shares of Registrable Securities to which
the Demand Registration relates so elect, the offering of such issue of
Registrable Securities pursuant to such Demand Registration shall be in the form
of an underwritten offering and the managing underwriter or underwriters
selected for such offering shall be the Approved Underwriter. In such event, if
the Approved Underwriter advises Ivex in writing that in its opinion the
aggregate amount of Registrable Securities requested to be included in such
offering is sufficiently large as to have a material adverse effect on the
success of such offering, Ivex shall include in such registration only the
aggregate amount of Registrable Securities that, in the opinion of the Approved
Underwriter, may be sold without any such material adverse effect and shall
reduce, pro rata, the amount of Registrable Securities to be included by each
Holder in such offering.
3.4 Selection of Underwriters. If any Demand Registration of
Registrable Securities is in the form of an underwritten offering, the Approved
Underwriter shall be selected and obtained and their discounts and commissions,
if any, paid in accordance with the procedure set forth in Section 2.4 hereof.
4. PIGGY-BACK REGISTRATION OF COMMON STOCK
If Ivex proposes to file a registration statement under the
Act with respect to an offering by Ivex for its own account of Registrable
Securities (other than a registration statement of Form S-4 or S-8 or any
successor or similar forms thereto), then Ivex shall give written notice of such
proposed registration and distribution (including those jurisdictions where
registration under the securities or blue sky laws is intended) and offer the
opportunity to register such
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amount of Registrable Securities as each such Holder hereunder may request in
writing. Subject to Section 9 hereof, Ivex shall use its best efforts (within
thirty (30) days after the notice provided for in the preceding sentence) to
cause the managing underwriter or underwriters of a proposed underwritten
offering (the "Company Underwriter") to permit the Holders to participate in the
registration for such offering and to include such Registrable Securities in
such offering. Any Registrable Securities of the Holders registered pursuant to
this Agreement shall be included in the offering on the same terms and
conditions as the Registrable Securities being offered by Ivex. Notwithstanding
the foregoing, if the Company Underwriter advises Ivex in writing that in its
opinion the total amount of Registrable Securities which the Holders, Ivex and
any other persons or entities intend to include in such offering (the "Total
Securities") is sufficiently large as to have a material adverse effect on the
distribution of the Total Securities, then the amount of securities to be
offered for the account of the Holders and such other persons or entities shall
be reduced pro rata to the extent necessary to reduce the Total Securities to
the amount recommended by the Company Underwriter. Ivex shall bear all
Registration Expenses in connection with any registration pursuant to this
Section 4 (except for the discounts or commissions of the Company Underwriter
applicable to the Holders' Registrable Securities, which shall be paid in
accordance with the procedures set forth in Section 2.4 hereof).
5. HOLDBACK AGREEMENTS
Restrictions on Public Sale by the Holders. To the extent not
inconsistent with applicable law, the Holders agree not to effect any public
sale or distribution of any Registrable Securities being registered or of
securities convertible into or exchangeable or exercisable for such Registrable
Securities, including a sale pursuant to Rule 144 under the Act, during the
fourteen (14) business days prior to, and during the one hundred and eighty
(180) day period beginning on, the effective date of such registration statement
(except as part of such registration), if and to the extent requested by Ivex in
the case of a nonunderwritten public offering or if and to the extent
requested by Ivex or the Company Underwriter in the case of an underwritten
public offering.
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6. REGISTRATION PROCEDURES
In connection with any registration effected pursuant to the
terms of this Agreement, Ivex shall as expeditiously as possible:
(a) prepare and file with the SEC, not later than forty-five
(45) business days after receipt of a request to file a registration statement
with respect to Registrable Securities, a registration statement of any form for
which Ivex then qualifies and which counsel for Ivex deems appropriate for the
sale of such Registrable Securities in accordance with the intended method of
distribution thereof. Ivex shall use its best efforts to cause such registration
statement to become effective; provided, however, that before filing a
registration statement or prospectus or any amendments or supplements thereto,
Ivex shall (i) provide counsel selected by the Holder or Holders of a majority
of the aggregate outstanding shares of Registrable Securities held by the
Holders hereunder being registered in such registration ("Holders' Counsel") and
any other Inspector (as defined below) with an opportunity to participate in the
preparation of such registration statement and each prospectus included therein
(and each amendment or supplement thereto) to be filed with the SEC, which
documents shall be subject to the review of Holders' Counsel, and (ii) notify
Holders' Counsel and the Holders of any stop order issued or threatened by the
SEC and take all reasonable action required to prevent the entry of such stop
order or to remove it if entered;
(b) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective
until the earliest to occur of (i) the expiration of nine (9) months, (ii) the
date all Registrable Securities included therein have been sold, and (iii) the
expiration of ninety (90) day period referred to in Section 4(3) of the Act and
Rule 174 thereunder, if applicable, and comply with the provisions of the Act
with respect to the disposition of all securities covered by such registration
statement during such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such registration statement;
(c) furnish to the Holders' Counsel, prior to filing a
registration statement, copies of such registration statement as proposed to
be filed, and thereafter such number of copies of such registration statement,
each amendment and supplement thereto (in each case including all exhibits
thereto), the prospectus included in such registration statement (including each
preliminary
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prospectus) and such other documents as the Holders' Counsel may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by the Holders;
(d) use its best efforts to register or qualify such Regis-
trable Securities under such other securities or blue sky laws of such
jurisdictions as the Holders' Counsel reasonably request and do any and all
other acts and things which may be reasonably necessary or advisable to enable
the Holders to consummate the disposition in such jurisdictions of the
Registrable Securities owned by the Holders; provided, however, that Ivex shall
not be required to (i) qualify generally to do business in any jurisdiction
where it would not otherwise be required to qualify but for this paragraph (d),
(ii) subject itself to taxation in any such jurisdiction or (iii) consent to
general service of process in any such jurisdiction;
(e) use its best efforts to cause the Registrable Securities
covered by such registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary by virtue of the
business and operations of Ivex to enable the Holders to consummate the
disposition of such Registrable Securities;
(f) notify the Holders, at any time when a prospectus relat-
ing to the registration statement is required to be delivered under the Act,
upon discovery of, or upon the happening of any event as a result of which, the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading in light of
the circumstances under which they were made. In such instance, Ivex promptly
shall prepare and file a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus shall not contain an untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances under which they
were made;
(g) enter into and perform customary agreements (including
an underwriting agreement in customary form) and take such other actions as are
reasonably required in order to expedite or facilitate the disposition of such
Registrable Securities;
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(h) make available for inspection by any managing under-
writer participating in any disposition pursuant to such registration statement,
Holders' Counsel and any accountant or other agent retained by the Holder or
Holders of a majority of the aggregate outstanding shares of Registrable
Securities held by the Holders hereunder or any managing underwriter
(collectively, the "Inspectors"), all pertinent financial and other records,
pertinent corporate documents and properties of Ivex and its subsidiaries
(collectively, the "Records") as shall be reasonably necessary to enable them to
exercise their due diligence responsibility, and cause Ivex's and its
subsidiaries' officers, directors and employees, and the independent public
accountants of Ivex, to supply all information reasonably requested by any such
Inspector in connection with such registration statement. Records and other
information that Ivex determines in good faith to be confidential, and of which
determination the Inspectors are so notified, shall not be disclosed by the
Inspectors unless (i) the disclosure of such Records or other information is
necessary to avoid or correct a misstatement or omission in the registration
statement, (ii) the release of such Records or other information is ordered
pursuant to a subpoena or other order from a court of competent jurisdiction or
(iii) the information in such Records or such other information has been made
generally available to the public by someone other than such Inspector. Ivex
shall not be required to disclose any such confidential information or Records
until and unless the Inspectors shall have entered into customary
confidentiality agreements with Ivex with respect thereto. Each Holder agrees
that it shall, upon learning that disclosure of such Records or other
information is sought in a court of competent jurisdiction, give notice to Ivex
and allow Ivex, at Ivex's expense, to undertake appropriate action to prevent
disclosure of the Records or other information deemed confidential;
(i) in the event such sale is pursuant to an underwritten
offering, use its best efforts to obtain a "cold comfort" letter from Ivex's
independent public accountants in customary form and covering such matters of
the type customarily covered by "cold comfort" letters as Holders' Counsel or
the managing underwriter reasonably request;
(j) use its best efforts to obtain, at the request of
Holders' Counsel on the date such securities are delivered to the underwriters
for sale pursuant to such registration or, if such securities are not being sold
through underwriters, on the date the registration statement with respect to
such securities becomes effective, an opinion of counsel representing Ivex for
the purposes of such registration, addressed to the underwriters, if any, and to
the Holders, covering such legal matters with respect to the registration in
respect of which
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such opinion is being given as the Holders' Counsel may reasonably request and
are customarily included in such opinions;
(k) otherwise use its best efforts to comply with all appli-
cable rules and regulations of the SEC and make available to its security
holders, as soon as reasonably practicable, but no later than fifteen (15)
months after the effective date of the registration statement, an unaudited
earnings statement covering a period of twelve (12) months beginning within
three (3) months after the effective date of the registration statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the Act;
(l) keep each Holder advised in writing as to the initiation
and progress of any registration under Section 2, 3 or 4 hereunder;
(m) provide officers' certificates and other customary clos-
ing documents;
(n) notify each seller of such Registrable Securities and
each underwriter participating in the disposition of such Registrable Securities
of any stop order or other suspension of effectiveness of the registration
statement;
(o) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of the registration statement at the
earliest possible moment;
(p) cooperate with the sellers of such Registrable
Securities and the managing underwriter or underwriters, if any, to facilitate
the timely preparation and delivery of certificates (not bearing any restrictive
legends) representing securities to be sold under the registration statement and
enable such securities to be in such denominations or amounts, as the case may
be, and registered in such names as the managing underwriter or underwriters, if
any, or such sellers may request;
(q) cooperate with each seller of Registrable Securities and
each underwriter participating in the disposition of such Registrable Securities
and their respective counsel in connection with any filings required to be made
with the National Association of Securities Dealers, Inc. (the "NASD"); and
(r) use all reasonable efforts to take all other steps
necessary to effect the registration of the Registrable Securities
contemplated hereby.
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Ivex may require each Holder to furnish to Ivex such
information regarding the distribution of such securities as Ivex may from time
to time reasonably request in writing.
Each Holder agrees that, upon receipt of any notice from Ivex
of the happening of any event of the kind described in Section 6(f) hereof, such
Holder shall forthwith discontinue disposition of Registrable Securities
pursuant to the registration statement covering such Registrable Securities
until such Holder's receipt of the copies of the supplemented or amended
prospectus contemplated by Section 6(f) hereof and, if so directed by Ivex, such
Holder shall deliver to Ivex (at Ivex's expense) all copies, other than
permanent file copies then in such Holder's possession, of the prospectus
covering such Registrable Securities current at the time of receipt of such
notice. In the event Ivex shall give any such notice, Ivex shall extend the
period during which such registration statement shall be maintained effective
pursuant to this Agreement (including, without limitation, the period referred
to in Section 6(b)) by the number of days of the period from and including the
date of the giving of such notice pursuant to Section 6(f) hereof to and
including the date when the Holder shall have received the copies of the
supplemented or amended prospectus contemplated by and meeting the requirements
of Section 6(f).
7. REGISTRATION EXPENSES
Ivex shall pay all expenses (other than underwriting discounts
and commissions of the Approved Underwriters or of the Company Underwriter
applicable to the Holders) arising from or incident to its performance of, or
compliance with, this Agreement, including without limitation, (i) required SEC,
stock exchange and NASD registration and filing fees (including, if applicable,
the fees and expenses of any "qualified independent underwriter" as such term is
defined in Schedule E to the By-Laws of the NASD, and of its counsel), (ii) all
fees and expenses incurred in complying with securities or blue sky laws
(including reasonable fees and disbursements of counsel in connection with blue
sky qualifications of the Registrable Securities), (iii) all printing (including
expenses of printing prospectuses if such printing is reasonably requested by
the Holder or Holders of a majority of the aggregate outstanding shares of
Registrable Securities held by the holders hereunder), messenger and delivery
expenses, (iv) the fees and disbursements of counsel to Ivex and of its
independent public accountants and any other accounting and legal fees and
expenses incurred by Ivex (including without limitation any expenses arising
from any special audits or "cold comfort" letters required by or incident to any
registration or qualification),
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(v) internal expenses (including, without limitation, all salaries and expenses
of officers and employees performing legal or accounting duties) and (vi) the
reasonable fees and expenses of any special experts retained by Ivex in
connection with any registration pursuant to the terms of this Agreement,
regardless of whether such registration statement is declared effective. In
connection with each registration hereunder, Ivex shall reimburse the Holders of
Registrable Securities being registered in such registration for the reasonable
fees and disbursements of not more than one counsel for the Holders of
Registrable Securities selected by the Holder or Holders of a majority of the
aggregate outstanding Registrable Securities included, or to be included, in
such registration statement. All of the expenses described in this Section 7 are
herein called "Registration Expenses".
8. INDEMNIFICATION; CONTRIBUTION
8.1 Indemnification by Ivex. Ivex agrees to indemnify, to the
full extent permitted by law, each Holder, its officers, directors, partners,
employees and agents and each person who controls (within the meaning of the Act
and the Exchange Act) such Holder, and any investment adviser thereof or agent
therefor from and against any and all losses, claims, damages, liabilities and
expenses (including reasonable costs of investigation and legal expenses)
arising out of or based upon any untrue, or alleged untrue, statement of a
material fact contained in any registration statement, prospectus or preliminary
prospectus or notification or offering circular (as amended or supplemented if
Ivex shall have furnished any amendments or supplements thereto) or arising out
of or based upon any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances under which they were made. The
indemnification agreement contained in this Section 8.1 shall not apply to
statements or omissions made in reliance upon and in conformity with information
furnished in writing to Ivex by such Holder expressly for use therein. The
indemnification agreement contained in this Section 8.1 with respect to any
preliminary prospectus shall not inure to the benefit of any person from whom
the person asserting any such losses, claims, damages, liabilities or expenses
purchased the Registrable Securities that are the subject thereof (or to the
benefit of any person controlling such person) if the untrue statement or
omission of material fact contained in the preliminary prospectus was corrected
in the prospectus, as then amended or supplemented, and such person failed to
deliver a copy of the amended or supplemented prospectus to the person asserting
such loss, claim, damage, liability or expense after Ivex had furnished such
person with copies of the same. Ivex shall also indemnify any underwriters of
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the Registrable Securities, their officers, directors and employees and each
person who controls such underwriters (within the meaning of the Act and the
Exchange Act) to the same extent as provided above with respect to the
indemnification of the Holders.
8.2 Indemnification by Each Holder. In connection with any
registration statement in which a Holder is participating pursuant to Section 2,
3 or 4 hereof, such Holder shall furnish to Ivex in writing such information and
affidavits with respect to such Holder as Ivex may reasonably request for use in
connection with any such registration statement, preliminary prospectus or
prospectus (or amendment or supplement thereof) and each Holder agrees to
indemnify, to the extent permitted by law, Ivex, any underwriter retained by
Ivex and their respective directors, officers, employees and each person who
controls Ivex or such underwriter (within the meaning of the Act and the
Exchange Act), but only with respect to any such information furnished in
writing by such Holder.
8.3 Conduct of Indemnification Proceedings. Any person
entitled to indemnification hereunder (the "Indemnified Party") agrees to give
prompt written notice to the indemnifying party (the "Indemnifying Party") after
the receipt by the Indemnified Party of any written notice of the commencement
of any action, suit, proceeding or investigation or threat thereof made in
writing for which the Indemnified Party intends to claim indemnification or
contribution pursuant to this Agreement; provided, however, that the failure so
to notify the Indemnifying Party shall relieve the Indemnifying Party of any
liability that it may have to the Indemnified Party hereunder only to the extent
that it is prejudiced by such delay or failure. In case notice of commencement
of any such action shall be given to the Indemnifying Party as above provided,
the Indemnifying Party shall be entitled to participate in and, to the extent it
may wish, jointly with any other Indemnifying Party similarly notified, to
assume the defense of such action at its own expense, with counsel chosen by it
and reasonably satisfactory to such Indemnified Party. The Indemnified Party
shall have the right to employ separate counsel in any such action and
participate in the defense thereof, but the fees and expenses of such counsel
shall be paid by the Indemnified Party unless (i) the Indemnifying Party agrees
to pay the same, (ii) the Indemnifying Party fails to assume the defense of such
action with counsel reasonably satisfactory to the Indemnified Party, (iii) the
named parties to any such action (including any impleaded parties) have been
advised by their counsel that either (x) representation of such Indemnified
Party and the Indemnifying Party by the same counsel would be inappropriate
under applicable standards of professional conduct or (y) there may be one or
more legal defenses available to it which are different
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from or additional to those available to the Indemnifying Party. In the
instances listed in the previous sentence, the Indemnifying Party shall not have
the right to assume the defense of such action on behalf of the Indemnified
Party, but will not be obligated to pay the fees and expenses of more than one
counsel for all Indemnified Parties with respect to such claim. The Indemnified
Party shall not be required to consent to entry of any judgment or enter into
any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a release from
all liability with respect to such claim or litigation. The Indemnifying Party
shall not be liable for any settlement entered into without its consent, which
consent shall not be unreasonably withheld.
8.4 Contribution. If the indemnification provided for in this
Section 8 from the Indemnifying Party is unavailable to an Indemnified Party
hereunder in respect of any losses, claims, damages, liabilities or expenses
referred to herein, then the Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative fault of
the Indemnifying Party and Indemnified Party in connection with the actions
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative fault of such
Indemnifying Party and Indemnified Party shall be determined by reference to,
among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact, has been made by, or relates to information supplied by,
such Indemnifying Party or Indemnified Party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action. The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to include,
subject to the limitations set forth in Section 8.1, 8.2 and 8.3, any legal or
other fees or expenses reasonably incurred by such party in connection with any
investigation or proceeding.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 8.4 were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person.
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9. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
A Holder may not participate in any underwritten registration
hereunder unless such Holder (a) agrees to sell such holder's Registrable
Securities on the basis provided in any underwriting arrangements entered into
in accordance with this Agreement and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements,
custody agreements and other documents reasonably required under the terms of
such underwriting arrangements and (c) agrees to pay their pro rata portion of
all underwriting discounts and commissions of Approved Underwriters or the
Company Underwriter.
10. COVENANT OF HOLDERS OF REGISTRABLE SECURITIES
Each Holder by its acceptance of the Registrable Securities
agrees to cooperate with Ivex in connection with the preparation and filing of
any registration statement hereunder.
11. RULE 144
Ivex covenants that it shall file any reports required to be
filed by it under the Act, the Exchange Act and the rules and regulations
adopted by the SEC thereunder and that it shall take such further action as a
Holder may reasonably request (including providing any information necessary to
comply with Rule 144A under the Act), all to the extent required from time to
time to enable such Holder to sell Registrable Securities without registration
under the Act within the limitation of the exemptions provided by (a) Rule 144
or Rule 144A under the Act, as such rules may be amended from time to time or
(b) any similar rules or regulations hereafter adopted by the SEC. Ivex shall,
upon the request of a Holder, deliver to such Holder a written statement as to
filings made by Ivex with the SEC.
12. MISCELLANEOUS
12.1 Recapitalization, Exchanges, etc., Affecting Ivex's
Capital Stock. The provisions of this Agreement shall apply, to the full extent
set forth herein with respect to any and all common stock of Ivex or any
successor or assign of Ivex (whether by merger, consolidation, sale of assets or
otherwise) which may be issued in respect of, in exchange for or in substitution
of, the Registrable Securities and shall be appropriately adjusted for any stock
dividends,
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splits, reverse splits, combinations, recapitalizations and the like occurring
after the date hereof.
12.2 No Inconsistent Agreements. Ivex shall not enter into
any agreement with respect to its securities that is inconsistent with the
rights granted to the Holders in this Agreement.
12.3 Remedies. The Holders, in addition to being entitled to
exercise all rights granted by law (including recovery of damages), shall be
entitled to specific performance of their rights under this Agreement. Ivex
agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Agreement and
hereby agrees to waive the defense that a remedy at law would be adequate in any
action for specific performance.
12.4 Amendments and Waivers. Except as otherwise provided
herein, the provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless Ivex has consented in writing thereto and has obtained
the written consent of either Acadia or the Holder or Holders of at least a
majority of the aggregate outstanding shares of Registrable Securities hereunder
affected by such amendment, modification, supplement, waiver or departure.
12.5 Notices. All notices or other communications provided for
herein shall be in writing and shall be given personally, telegraphed, telexed,
sent by facsimile transmission or sent by prepaid air courier or certified,
registered or express mail, postage prepaid. Any such notice shall be deemed to
have been given (a) when received, if delivered in person, telegraphed, telexed,
sent by facsimile transmission and confirmed in writing, (b) two (2) business
days thereafter if sent by reputable overnight, prepaid air courier or (c) three
(3) business days following the mailing thereof, if mailed by certified first
class mail, postage prepaid, return receipt requested, in any such case as
follows (or to such other address or addresses as a party may have advised the
other in the manner provided in this Section 12.5):
(i) if to Ivex:
Ivex Packaging Corporation
▇▇▇ ▇▇▇-▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇
▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: G. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
(ii) if to the Holders:
Acadia Partners, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. August
with a copy to:
Oak Hill Partners, Inc.
Park Avenue Tower
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. August
and
▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
1285 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopier Number: (▇▇▇) ▇▇▇-▇▇▇▇
12.6 Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
hereto and the registration rights and other obligations of Ivex contained in
this Agreement with respect to any Registrable Securities shall be automatically
transferred from a Holder to any subsequent holder of its Registrable Securities
(including any pledgee but excluding any person who acquires such securities in
a transaction with respect to which a registration statement under the Act is
effective at the time or pursuant to a sale of the type described under Section
1.3(ii) hereof).
12.7 Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of
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which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
12.8 Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
12.9 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware applicable to
contracts made and to be performed wholly within such State.
12.10 Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be in any way
impaired thereby, it being intended that all of the rights and privileges of the
parties shall be enforceable to the fullest extent permitted by law.
Furthermore, in lieu of each such illegal, invalid or unenforceable provision
there shall be added automatically as a part of this Agreement a provision as
similar in terms to such illegal, invalid or unenforceable provision as may be
possible and be legal, valid and enforceable.
12.11 Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein. This Agreement supersedes all prior agreements, discussions and
understandings between the parties with respect to such subject matter.
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IN WITNESS WHEREOF, the undersigned have executed this
Agreement on the date first above written.
IVEX PACKAGING CORPORATION
By:
-------------------------------
Name:
----------------------------
Title:
----------------------------
ACADIA PARTNERS, L.P.
By: Acadia FW Partners, L.P., its
General Partner
By: Acadia MGP, Inc., its Managing
General Partner
By:
-------------------------------
Name:
----------------------------
Title:
----------------------------
ACADIA ELECTRA PARTNERS, L.P.
By: Acadia Partners, L.P., its
General Partner
By: Acadia FW Partners, L.P., its
General Partner
By: Acadia MGP, Inc., its Managing
General Partner
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By:
-------------------------------
Name:
----------------------------
Title:
----------------------------
ROSECLIFF-IPMC 1991 PARTNERS, L.P.
By:
-------------------------------
Name:
----------------------------
Title:
----------------------------
FWHY-COINVESTMENTS III PARTNERS,
L.P.
By: Bondo FTW, Inc.
By:
-------------------------------
Name:
----------------------------
Title:
----------------------------
FWHY-COINVESTMENTS I PARTNERS,
L.P.
By: Bondo FTW, Inc.
By:
-------------------------------
Name:
----------------------------
Title:
----------------------------
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ROSECLIFF-IVEX PACKAGING 1990
PARTNERS, L.P.
By:
-------------------------------
Name:
----------------------------
Title:
----------------------------
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