Exhibit 10.13
AMENDED AND RESTATED
CONSULTING AGREEMENT
This Amended and Restated Consulting Agreement (the "Restated Agreement"),
dated as of June 30, 1999 by and between Packaging Dynamics, L.L.C., a Delaware
limited liability company (the "Corporation"), and IPC, Inc., a Delaware
corporation ("Ivex"), amends and restates, in its entirety, the Consulting
Agreement, dated as of November 1998, by and between Ivex and the Corporation
(the "Prior Agreement").
WHEREAS, Ivex and the Corporation desire to amend and restate the Prior
Agreement on the terms and conditions set forth in this Restated Agreement;
NOW, THEREFORE, it is mutually agreed as follows:
1. Effectiveness of Restated Agreement. As of the date hereof, the Prior
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Agreement shall be amended and restated in its entirety as set forth herein.
2. Services. The Corporation hereby retains Ivex to render consulting
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services to Packaging Holdings, L.L.C. ("Holdings"), the Corporation and the
Corporation's subsidiaries and Ivex hereby agrees to render such services for
the period commencing on the date hereof and continuing until such time as this
Restated Agreement shall be terminated by any party hereto. Ivex shall render
such consulting services to Holdings, the Corporation and its subsidiaries in
connection with such financial, management and other matters relating to their
business and operations and at such times and locations as Holdings, the
Corporation or such subsidiaries may from time to time reasonably request.
3. Fees and Term.
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(a) As compensation for Ivex's consulting services rendered pursuant
to Section 1, the Corporation will pay, subject to the terms of the
Corporation"s senior credit facility, an annual fee of $750,000. Such fee shall
be payable quarterly in arrears on each March 31/st/, June 30/th/, September
30/th/ and December 31/st/, commencing on December 31, 1998 so long as this
Restated Agreement continues in effect; provided, however, any fees (the payment
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of which are prohibited by the Corporation"s senior credit facility) shall
accrue until paid in full.
(b) The Corporation shall pay the other reasonable fees and
out-of-pocket expenses of Ivex in connection with its
services rendered under this Restated Agreement upon submission of receipts
and/or other documentation to the Corporation.
(c) This Restated Agreement shall commence on the date hereof and
shall continue in effect until the fifth (5/th/) anniversary of the date hereof
and shall thereafter automatically extend for successive additional two (2) year
periods; provided, however, that each party shall have the opportunity to give
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written notice of termination during the ninety (90) day period prior to the end
of each such two (2) year period and if such written notice is given, the
termination shall be effective on the last day of such two (2) year period;
provided, further, however, that after a Change of Control (as hereinafter
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defined), the Corporation shall have the right to terminate this Restated
Agreement upon written notice.
For purposes of this Section, a "Change of Control" means any of the
following: (i) the direct or indirect sale, lease, conveyance or other
disposition of all or substantially all of the assets of the Corporation,
Holdings, Ivex or Ivex Packaging Corporation to any Person or "group" (within
the meaning of Section 13(d)(3) of the Securities and Exchange Act of 1934, as
amended (the "Exchange Act"), as in effect on the date of this Agreement) in one
or a series of transactions; (ii) the liquidation or dissolution of the
Corporation, Holdings, Ivex or Ivex Packaging Corporation; or (iii) any
transaction or series of transactions (as a result of a tender offer, merger,
consolidation or otherwise) that results in, or that is in connection with, any
Person or "group" (within the meaning of Section 13(d)(3) of the Exchange Act as
in effect on the date of this Agreement) acquiring after the date hereof
"beneficial ownership" (as defined in Rule 13d-3 under the Exchange Act as in
effect on the date of this Agreement), directly or indirectly, of more than 50%
of the aggregate membership interests or common stock, as the case may be, in
the Corporation, Holdings, Ivex or Ivex Packaging Corporation (other than any
such acquisition by, or by any such "group" that is controlled by, as the case
may be, the Corporation or Ivex Packaging Corporation as of the date of this
Agreement).
4. Indemnity. Except as prohibited by law or as set forth below, the
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Corporation agrees to indemnify and hold harmless Ivex, its affiliates,
successors and assigns and their respective employees, agents, and
representatives against all costs and expenses (including attorney"s fees, costs
and disbursements) and any damages, liabilities or penalties paid or incurred by
any of them in connection with any actual or threatened claim, action, suit or
proceeding, whether civil, criminal, administrative, investigative or other, in
which any such person may be involved, as a party, witness or otherwise, or
threatened to be involved by
reason of such person's activities pursuant to this Restated Agreement;
provided, however, that no such right of indemnification shall exist in any case
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where the act or failure to act giving rise to the claim to indemnification is
determined by a court to have constituted willful misconduct or recklessness or
gross negligence on the part of such indemnified person. If this Section 4 or
any portion thereof shall be invalidated on any grounds by any court of
competent jurisdiction, the Corporation shall nevertheless indemnify any person
entitled to indemnification hereunder as to any expenses and liabilities paid or
incurred by such person in connection with any actual or threatened action to
the fullest extent permitted by any applicable portion of this Section 4 that
shall not have been invalidated, to the fullest extent permitted by applicable
law. The rights under this Section 4 shall survive the termination of this
Restated Agreement.
5. Any notice required to be given hereunder shall be in writing and
shall be deemed sufficient if delivered in person, mailed by pre-paid certified
or registered mail, return receipt requested, by reputable overnight courier
service or by telecopy transmission as follows:
(i) if to the Corporation:
Packaging Dynamics, L.L.C.
c/o Ivex Packaging Corporation
000 Xxx-Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Vice President and
General Counsel
with a copy to:
Oakhill Partners, Inc.
65 Xxxx 00/xx/ Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000)000-0000
Telecopy: (000)000-0000
Attention: Xx. Xxxxxxx X. Xxxxxx
(ii) if to Ivex:
IPC, Inc.
c/o Ivex Packaging Corporation
000 Xxx-Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Vice President and
General Counsel
Any party, by notice to the other party hereto, may designate additional or
different addresses for subsequent notices or communications.
6. This Restated Agreement constitutes the entire agreement between the
parties and supersedes all prior agreements and understandings, both written and
oral, with respect to the subject matter hereof. This Restated Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, including any corporation into which the
Corporation shall consolidate or merge or to which it shall transfer
substantially all of its assets. This Restated Agreement shall be governed by
and construed in accordance with the laws of the State of Illinois applicable to
contracts made and to be performed entirely within such state.
This Restated Agreement may be executed in any number of counterparts, each
of which when so executed and delivered shall be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this Restated
Agreement as of the day and year first above written.
PACKAGING DYNAMICS, L.L.C.
By: /s/ Xxxxx X. Xxxxxxx
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IPC, INC.
By: /s/ Xxxxx X. Xxxxxxx
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