Exhibit 10.2
AMENDMENT NO. 2
TO
STOCK PURCHASE AGREEMENT
This AMENDMENT NO. 2 TO STOCK PURCHASE AGREEMENT (the
"Amendment"), dated as of December 15, 1998, is entered into by
and among GOLDEN ALUMINUM COMPANY, a Colorado corporation
("GAC"), CROWN CORK & SEAL COMPANY, INC., a Pennsylvania
corporation ("Buyer") and ACX TECHNOLOGIES, INC., a Colorado
corporation ("Seller") and hereby amends that certain Stock
Purchase Agreement, dated as of March 1, 1997, among GAC, Buyer
and Seller (as, amended by Amendment No. 1 to Stock Purchase
Agreement, the "Agreement"). Capitalized terms not otherwise
defined herein shall have the meanings given such terms in the
Agreement.
BACKGROUND
Pursuant to the Agreement, Seller sold, subject to Buyer's
Stock Put Option, all of the issued and outstanding stock of GAC
to Buyer on the terms and conditions set forth therein. The
parties wish to extend the period during which Buyer may exercise
the Stock Put Option until September 1, 1999. The parties also
desire that, if Buyer does not first exercise the Stock Put
Option, Buyer shall pay to Seller the Deferred Payment on the
earlier of (i) the tenth business day after a Trigger Event and
(ii) September 1, 1999.
The parties wish to amend the Agreement in the manner set
forth below.
TERMS
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and intending to be legally bound hereby, the
parties hereto agree as follows.
1. Deferred Payment. Section 1.3(a) of the Agreement is hereby
amended by deleting the first sentence of the existing
Section 1.3(a) of the Agreement and replacing it with the
following language:
Unless Buyer first exercises the Stock Put
Option (as defined in Section 3.1) pursuant to
Article III and in accordance with the other
terms and conditions of this Agreement,
including Section 7.6 hereof, Buyer shall at
any time after the Closing but in no event
later than the earlier of (i) 10 business days
after a Trigger Event (defined below) and
(ii) September 1, 1999, pay to Seller
$60,000,000 (the "Primary Deferred Payment")
plus the amount of cash or Buyer common stock
constituting the Secondary Deferred Payment, as
defined below.
2. Exercise of the Stock Put Option. Section 3.2 of the
Agreement is hereby amended by deleting the first sentence and
replacing it with the following language:
Buyer may exercise the Stock Put Option by
providing written notice (the "Put Notice") to
Seller on or before June 3, 1999.
and by deleting the fifth sentence and replacing it with the
following language:
Also at the Stock Put Closing, Buyer shall
deliver (a) a waiver and release (substantially
in the form of Exhibit A) of any and all claims
(other than claims arising directly pursuant to
this agreement) Buyer may have, now or in the
future against GAC and the Subsidiaries and
their respective directors, officers, employees
or agents, and (b) a supply contract as
required by Section 3.5 below.
3. Expiration of the Stock Put Option. Section 3.3 of the
Stock Purchase Agreement is amended to read in its entirety to
read as follows:
3.3 Expiration of the Stock Put Option. The
Stock Put Option and all other rights granted to
Buyer under this Article III shall expire at 5
p.m. Mountain Time on the earlier of
September 1, 1999 and the date of payment of the
Deferred Payment by Buyer.
4. Access. Section 11.5(b) of the Stock Purchase Agreement is
amended in its entirety to read as follows:
11.5(b) Access. After Closing and until the
earlier of (1) payment of the Deferred Payment
or (ii) the Stock Put Closing, Buyer and GAC
shall give to Seller's officers, employees,
counsels, accountants, other representatives and
prospective purchasers of GAC or the included
Assets, access to and the right to inspect, upon
reasonable notice and during normal business
hours, all of the premises, properties, assets,
records, contracts, and any other document
relating to the Business and shall permit them
to consult with the officers of GAC, Buyer and
accountants, counsel and agents of GAC for the
purposes of making such investigation of the
Business or any of its assets or property as
Seller or any prospective purchaser of GAC shall
reasonably desire to make, provided that such
investigation shall not unreasonably interfere
with the operations of the Business and provided
that, prior to any inspection or consultation,
such party granted access shall execute a
confidentiality agreement in a form acceptable
to Buyer. Buyer and GAC shall furnish promptly
to Seller all such documents and copies of
documents and records and information with
respect to the affairs of the Business as Seller
shall from time to time reasonably request.
5. Supply Contract. The Stock Purchase Agreement is amended by
adding the following Section 3.5:
3.5 Supply Contract. At the Stock Put
Closing, the parties shall enter into a two
year supply contract pursuant to which Buyer
shall agree to purchase that quantity of tab
stock of a quality satisfactory for Buyer's
operations, from the Colorado Mill in such
amounts not to exceed 15 million pounds per
annum as GAC shall specify to Buyer with
reasonable advance written notice from time to
time at a price no less favorable to Buyer than
GAC provides to any other party and no less
favorable to Buyer than the prices for tab
stock offered to Buyer by Buyer's other
suppliers.
6. Disclosure of Plans. The Stock Purchase Agreement is
amended by adding the following Section 11.5(h):
11.5(h) Disclosure of Plans. Prior to the
earlier of (i) the Stock Put Closing or (ii)
payment of the Deferred Payment, Buyer shall
regularly, but not less often than quarterly,
provide Seller with all project plans that
describe any material additions, supplements,
or other modifications to the Colorado Mill,
the Texas Mill or any of the Included Assets
(including, without limitation, the patents and
intellectual property rights described in
Schedule 5.20 and any related additional
patents and intellectual property rights that
Buyer has acquired or to which it has received
a license). If Buyer takes any material
actions with respect to either of the Plants or
the Included Assets or the intellectual
property that has not been described in a plan
provided to Seller, it shall furnish the plans
to Seller a reasonable time prior to taking
such action.
7. Additional Investment. The Stock Purchase Agreement is
amended by adding the following Section 11.5(i):
11.5(i) Additional Investment. Prior to
the earlier of (i) September 1, 1999 or (ii)
the date of the Deferred Payment, Buyer shall
have invested not less than $2.1 million to
install new castor blocks at the Texas Mill and
refurbish the furnaces at the Colorado Mill,
all of which shall become the property of GAC
or Seller at the Stock Put Closing without
payment of additional consideration by Seller;
provided, however, that in connection with the
Stock Put Closing and regardless of the
representations set forth on Schedule 7.6 of
the Stock Purchase Agreement, Buyer shall make
no representations or warranties as to the
working order and operating condition and
repair of such castor blocks and furnaces.
8. Miscellaneous.
1. Except as specifically set forth in this Amendment, the
Stock Purchase Agreement shall remain unaffected. This Amendment
may be executed in any number of counterparts and any party
hereto may execute any such counterpart, each of which when
executed and delivered shall be deemed to be an original and all
of which counterparts taken together shall constitute but one and
the same instrument. This Amendment shall become binding when
one or more counterparts taken together shall have been executed
and delivered by the parties. It shall not be necessary in
making proof of this Amendment or any counterpart to produce or
account for any of the other counterparts.
2. This Amendment shall be governed by and interpreted and
enforced in accordance with the laws of the State of Colorado
without regard to conflicts of law principles.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment No. 2 to Stock Purchase Agreement on the date first
above written.
BUYER:
CROWN CORK & SEAL COMPANY, INC.
By:
Ronald R. Thoma, Executive
Vice President
By:
William T. Gallagher,
Assistant Secretary
THE COMPANY:
GOLDEN ALUMINUM COMPANY
By:
Ronald R. Thoma, President
SELLER:
ACX TECHNOLOGIES, INC.
By:
Jeffrey H. Coors
President and Chief Executive
Officer