AMENDMENT
THIS AMENDMENT (the "Amendment") is entered into as of the 29th day of
November, 2001, by and among Alltrista Plastics Corporation, an Indiana
corporation, TriEnda Corporation, an Indiana corporation, Quoin Corporation, a
Delaware corporation, and Alltrista Corporation, an Indiana corporation
(collectively, the "Sellers") and Wilbert, Inc., an Illinois corporation (the
"Buyer"), and hereby amends the Asset Purchase Agreement dated as of October 15,
2001 by and among the Sellers and the Buyer (the "Agreement"). All capitalized
terms used in this Amendment without definition have the respective meanings
given to them in the Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Sellers and Buyer hereby agree
to amend the Agreement as follows:
1. The definition of "Closing Approvals" in Section 1.1 of the Agreement
is hereby amended by adding the words "by Sellers, Holdings and
Alltrisa" after the word "Closing" appearing in the first line of such
definition.
2. The definition of "Effective Time" in Section 1.1 of the Agreement is
hereby deleted in its entirety and replaced by the following text:
"Effective Time" means 12:00 A.M., Central Standard Time, on
November 26, 2001.
3. The definition of "Post-Closing Tax Period" in Section 1.1 of the
Agreement is hereby amended by deleting the term "Closing Date"
appearing therein and replacing it with the term "Effective Time".
4. The definition of "Pre-Closing Tax Period" in Section 1.1 of the
Agreement is hereby deleted in its entirety and replaced with the
following text:
"Pre-Closing Tax Period" means any tax period (or portion
thereof) ending on or before 11:59 PM on November 25, 2001.
5. Section 1.2 of the Agreement is hereby amended by deleting the
reference to Section "11.1(e)" appearing next to the term "Drop Dead
Date" and replacing such Section with "11.1(f)".
6. Schedule 2.2 of the Agreement is hereby amended to add, in addition to
those matters already included in Schedule 2.2, those matters set
forth in the amendment to Schedule 2.2 attached hereto and
incorporated herein by reference.
7. Section 2.6 of the Agreement is hereby amended by deleting the
language reading, "occur as soon as practicable following the
fulfillment of the conditions to Closing set forth in Article VIII
hereof, but in no event later than the Drop Dead Date" appearing in
the first sentence thereof and replacing it with the following
language: "be on November 28, 2001".
8. Subsection 3.1(a) of the Agreement is hereby deleted in its entirety
and replaced by the following text:
3.1(a) Consideration, Payment. The aggregate consideration for
the Assets (the "Purchase Price") will be: (i) Twenty Two Million
Eight Hundred Fifty Thousand Dollars ($22,850,000); and (ii) the
assumption of the Assumed Liabilities. The Purchase Price shall
be delivered by Buyer to Sellers, Holdings and Alltrista or their
assigns, as instructed and directed in that certain payoff letter
dated November 26, 2001 by Bank One, Indiana, NA, as
Administrative Agent (the "Agent") for the lenders (the
"Lenders") under that certain Credit Agreement dated as of April
26, 1999 by and among Alltrista, the Agent and the Lenders (as
amended, restated, supplemented or otherwise modified, the
"Seller Credit Agreement") as follows: (i) One Million Five
Hundred Thousand Dollars ($1,500,000) by wire transfer upon
execution of this Agreement (the "Deposit"); (ii) Nineteen
Million Five Hundred Thousand Dollars ($19,500,000) by delivery
at Closing of a short-term promissory note in the form attached
hereto as Exhibit 3.1(a-2) (the "Short-Term Promissory Note");
(iii) One Million Eight Hundred Fifty Thousand Dollars
($1,850,000) by delivery at Closing of a promissory note in the
form attached hereto as Exhibit 3.1(a) (the "Promissory Note");
and (iv) the balance of the Purchase Price by the execution and
delivery at Closing of an agreement in the form of Exhibit 3.1(b)
assuming the Assumed Liabilities.
9. Exhibit 3.1(a) of the Agreement is hereby deleted in its entirety and
replaced with Exhibit 3.1(a) attached hereto and incorporated herein
by this reference.
10. The Exhibit 3.1(a-2) to this Amendment is added to the Agreement as a
new exhibit.
11. Exhibit 3.1(b) of the Agreement is hereby deleted in its entirety and
replaced with Exhibit 3.1(b) attached hereto and incorporated herein
by this reference.
12. Section 3.3 of the Agreement is hereby amended by deleting the term
"Section 11.1(e)" appearing in the 10th line thereof and replacing it
with the term "Section 11.1(f)".
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13. A new Section 3.4 is hereby added to the Agreement, and such section
shall read as follows:
3.4 Covenant to Reconvey. If the Short-Term Promissory Note
delivered to Sellers, Holdings and Alltrista at Closing pursuant
to Section 3.1 hereof is not paid in accordance with its terms,
then upon written request of Sellers, Buyer shall (i) immediately
reconvey the Assets to Sellers, Holdings and Alltrista by
delivering instruments of transfer and assignment corresponding
exactly to those delivered by Sellers, Holdings and Alltrista to
Buyer in accordance with Section 2.3 hereof but with such changes
as the context requires, (ii) shall operate the Business in the
normal course and hold the Assets in trust for the benefit of
Sellers until such reconveyance may be completed, and (iii) cause
any liens on the Assets, including monetary liens, by Buyer's
lenders or other creditors of Buyers to be immediately released.
If the Short-Term Promissory Note is paid in accordance with its
terms, then this covenant shall be of no force or effect and,
following such payment, Sellers, Holdings and Alltrista shall
deliver written acknowledgment of the same if requested by Buyer.
14. Section 5.7 of the Agreement is hereby amended by adding the following
text after the words "Except as" appearing in the 5th line thereof: ",
and only to the extent, specifically".
15. Section 5.7 of the Disclosure Schedule is hereby deleted in its
entirety and replaced with Section 5.7 of Schedule 5.1 attached hereto
and incorporated herein by this reference. For purposes of
indemnification for a breach of a representation or warranty found in
Section 5.7 of the Agreement, this amendment to Section 5.7 of the
Disclosure Schedule shall not be deemed a supplement, but shall be
deemed the original.
16. Section 5.9 of the Disclosure Schedule is hereby amended to add, in
addition to those matters already included in Section 5.9 of the
Disclosure Schedule, those matters set forth in the amendment to
Section 5.9 of Schedule 5.1 attached hereto and incorporated herein by
reference (the "Additional Matters"). Sellers, Holdings and Alltrista
hereby agree that all liabilities and expenses associated with such
Additional Matters remain the obligation of the Sellers, Holdings or
Alltrista, as the case may be.
17. Subsection 5.11(a) of the Agreement is hereby amended by adding the
following text to the beginning of each sentence therein: "Except as,
and only to the extent, specifically set forth in Section 5.7 of the
Disclosure Schedule,". For purposes of indemnification for a breach of
a representation or warranty found in Subsection 5.11(a) of the
Agreement, the amendment to Section 5.7 of the Disclosure Schedule set
forth in Section 15 of this Amendment shall not be deemed a
supplement, but shall be deemed the original.
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18. Section 5.12 of the Agreement is hereby amended by adding the
following text to the beginning of each sentence therein: "Except as,
and only to the extent, specifically set forth in Section 5.7 of the
Disclosure Schedule,". For purposes of indemnification for a breach of
a representation or warranty found in Section 5.12 of the Agreement,
the amendment to Section 5.7 of the Disclosure Schedule set forth in
Section 15 of this Amendment shall not be deemed a supplement, but
shall be deemed the original.
19. The 11th entry in subsection (a) of Section 5.14 of the Disclosure
Schedule (relating to Key Employee Retention Plan agreements) and the
1st and 3rd entries in subsection (g) of Section 5.14 of the
Disclosure Schedule (relating to an Asset Purchase Agreement dated as
of March 12, 1999 and an Asset Purchase Agreement dated June 1, 2000,
respectively) are hereby deleted in their entirety and replaced with
the entries set forth in the amendment to Section 5.14 of Schedule 5.1
attached hereto and incorporated herein by reference.
20. Subsection 5.27(a) of the Agreement is hereby amended by deleting "As
of the Closing Date" in the second sentence thereof and replacing it
with "Upon payment of the Short-Term Promissory Note (which shall
occur no later than November 30, 2001)".
21. A new Subsection 5.28(f) is hereby added to the Agreement and shall
read as follows:
(f) Sellers, Holdings and Alltrista have no leases with the Blin
Corporation other than the first three (3) entries of Section
5.14(c) of the Disclosure Schedule.
22. Subsection 5.30(b) of the Agreement is hereby amended by adding the
following text after the last sentence thereof:
For purposes of calculating the Closing Working Capital, the
provisions of Sections 5.11 and 5.12 as amended by the Amendment
shall be given effect so that no reduction in Working Capital
shall be caused by any asset write downs booked or any reserves
established to the extent those items are specifically reflected
on Section 5.7 of the Disclosure Schedule.
23. Section 6.3 of the Agreement is hereby amended by adding the text,
"other than the consent of lenders" at the end of the last sentence
thereof.
24. Section 6.5 of the Agreement is hereby amended by adding the text,
"other than the credit agreements and instruments of Buyer" at the end
of the last sentence thereof.
25. The following is hereby added as Section 6.6 of the Agreement: "Buyer
will pay all amounts owing under the Short-Term Promissory Note by
November 30, 2001."
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26. A new Subsection 7.1(b)(v) is hereby added to the Agreement and shall
read as follows: "(v) reasonably cooperate in effecting the transfer
of assets of Transferred Employees who had worked for TriEnda
Corporation from the TriEnda OldCo Retirement Savings Plan to such
other plan as such Transferred Employees request following the
termination of the Agreement between TriEnda and TriEnda Newco dated
April 26, 1999 regarding 401(k) matters."
27. Subsection 7.5(f) of the Agreement is hereby amended by deleting the
first sentence thereof and replacing it with the following: "The
employment of all Transferred Employees with Sellers shall terminate
effective as of 11:59 P.M. on November 25, 2001 and shall commence
with Buyer as of the Effective Time."
28. Section 7.6 of the Agreement is hereby amended by adding the following
after the end of the last sentence thereof, "Buyer shall afford
Sellers, Clyde Sansom, David Keeling and any of their authorized
representatives reasonable access during normal business hours to any
records related to the Synergy World earn-out obligations in
connection with the Asset Purchase Agreement between Alltrista
Plastics Corporation, Synergy World, Inc., Clyde Sansom and David
Keeling, dated June 1, 2000 and any litigation related thereto.
29. Subsection 7.7(a) is hereby amended by deleting the term "Closing
Date" and by replacing it with the term "Effective Time".
30. Subsection 7.7(c) is hereby amended by:
a. deleting the term "(but does not end on) the Closing Date"
appearing in the second and third lines thereof and by replacing
it with the following term: "(but does not end on) November 25,
2001"; and
b. deleting the term "Closing Date based" appearing in the third
line thereof and by replacing it with the following term:
"Effective Time based".
31. The Buyer hereby confirms that no Disapproved Matters exist as of the
Closing Date.
32. The following is hereby added as Section 7.8(e) of the Agreement:
(e) In the event the Survey received by Buyer after the Closing
for the Real Property located at N7660 Industrial Road, Portage,
Wisconsin discloses title exceptions that were not disclosed in
the Owners Policy issued by Chicago Title Insurance Company dated
April 30, 1999 (Policy No. 50 0118 106 3416) or the Survey
conducted by Grothman & Associates, S.C. dated April 8, 1999
(File No. 399-141) ("New Disapproved Matters"), Buyer shall
provide Sellers written notice of such New Disapproved Matters
within ten (10) days after receipt of the Survey, and Sellers
shall then have the right, but not the obligation, at Sellers'
sole cost and expense, for a period of ten (10) business days
after Sellers receive written notice from Buyer of Buyer's
objections to title to cure any New Disapproved Matters. In the
event that Sellers fail or are unwilling to cure such New
Disapproved Matters to the reasonable satisfaction of Buyer's
counsel, the New Disapproved Matters will be considered
inaccuracies of representations and warranties under Section 5.29
of this Agreement. Notwithstanding the foregoing, Sellers shall
in all events, at Sellers' sole cost and expense, remove all
Monetary Liens within ten (10) business days after Sellers
receive written notice from Buyer of any New Disapproved Matters.
Furthermore, indemnification for the breach of representations
and warranties under Section 5.29 of this Agreement due to
Sellers' failure or unwillingness to cure a New Disapproved
Matter shall not be subject to the Basket.
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33. Subsection 7.13(a)(ii) is hereby amended by adding after the phrase
"the occurrence after the date of this Agreement" as follows: "but
prior to Closing".
34. Subsection 7.13(b)(ii) is hereby amended by adding after the phrase
"the occurrence after the date of this Agreement" as follows: "but
prior to Closing".
35. A new Section 7.15 is hereby added to the Agreement, and such section
shall read as follows:
Section 7.15 Confirmation of PayOff. Sellers, Holdings and
Alltrista shall provide Buyer with a written receipt from Bank
One, Indiana, NA confirming the receipt of the $1,500,000 Deposit
to prepay outstanding principal obligations under the Seller
Credit Agreement and with a written receipt from Wisconsin Power
and Light Company confirming the receipt of full prepayment on
all outstanding principal and interest obligations under four
Energy Service Contracts with TriEnda Corporation, respectively
dated December 20, 1999, December 10, 1997, November 13, 1996 and
November 13, 1996.
36. A new Section 7.16 is hereby added to the Agreement, and such section
shall read as follows:
Section 7.16 Notice of Default. If Northern Trust Company
notifies Buyer in writing that Buyer has defaulted under its
Credit Agreement dated as of March 15, 1999 by and among Buyer,
Northern Trust Company and certain other lenders party thereto,
Buyer shall notify Alltrista no later than the next business day
of such notice of default and provide Alltrista a copy of such
notice of default from Northern Trust Company.
37. A new Section 7.17 is hereby added to the Agreement, and such section
shall read as follows:
Section 7.17 Partial Assignment. With respect to the Asset
Purchase Agreement by and among Alltrista Corporation, Triangle
Plastics, Inc., TriEnda Corporation and James L. Blin, dated as
of March 12, 1999, for which Buyer is only assuming Sections 7.12
and 7.17 (the "Blin APA"), and with respect to the Asset Purchase
Agreement between Alltrista Plastics Corporation, Synergy World,
Inc., Clyde Sansom and David Keeling, dated June 1, 2000 (the
"Synergy World APA"), for which Buyer is assuming all of such
agreement except any portion of the earn-out obligations set
forth in Sections 3.1 and 3.2 thereof and related obligations,
Sellers, Holdings and Alltrista shall assist Buyer in enforcing
the assigned provisions in any action or proceeding upon the
request of Buyer by joining therein or bringing such action or
proceeding and fully cooperating with Buyer in such actions or
proceedings, provided, however, that Buyer shall be responsible
for any costs associated with such actions or proceedings which
may be reasonably incurred by Sellers, Holdings or Alltrista (and
such costs shall not apply toward the Basket). Notwithstanding
anything in this provision to the contrary, this shall not affect
any of the obligations of Sellers, Holdings and Alltrista
pursuant to Section 10.1(i) of the Agreement or the fact that the
Basket shall not apply to indemnification arising out of Section
10.1(i), as set forth in Section 10.3(a).
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38. Subsection 8.1(a) of the Agreement is hereby amended by deleting the
word "greater" appearing in the 12th line thereof and replacing it
with the word "less".
39. Subection 8.1(b) of the Agreement is hereby amended by deleting the
reference to "ten (10) days" appearing in the second line thereof and
by replacing it with "fifteen (15) days".
40. Subsection 8.2(b) of the Agreement is hereby deleted in its entirety
and replaced by the following text: "Sellers shall have received an
executed promissory note in the form attached hereto as Exhibit 3.1(a)
and an executed promissory note in the form attached hereto as Exhibit
3.1(a-2)."
41. Subsection 8.2(c) of the Agreement is hereby amended by deleting the
reference to "ten (10) days" appearing in the second line thereof and
by replacing it with "fifteen (15) days".
42. A new Section 9.8 is hereby added to the Agreement, and such section
shall read as follows:
Section 9.8 Short-Term Promissory Note. To the extent the
provisions in the Short-Term Promissory Note conflict with the
provisions of this Article IX or the provisions of Section 12.9
of the Agreement, the Short-Term Promissory Note shall be
governed by its own provisions.
43. A new Subsection 10.1(h) is hereby added to the Agreement, and such
new subsection shall read as follows:
(h) any environmental remediation obligations incurred by virtue
of or set forth in Section 7.17 of the Asset Purchase Agreement
by and among Alltrista Corporation, Triangle Plastics, Inc.,
TriEnda Corporation and James L. Blin, dated as of March 12,
1999. Notwithstanding anything in this Agreement to the contrary,
this indemnification responsibility shall survive for so long as
Buyer or any of its affiliates shall own the Portage, Wisconsin
real estate.
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44. A new Subsection 10.1(i) is hereby added to the Agreement, and such
new subsection shall read as follows:
(i) any earn-out obligations in connection with the Asset
Purchase Agreement between Alltrista Plastics Corporation,
Synergy World, Inc., Clyde Sansom and David Keeling, dated June
1, 2000, and related obligations and costs (including, without
limitation, litigation expenses associated with the earn-out
provisions and obligations).
45. A new Subsection 10.1(j) is hereby added to the Agreement, and such
new subsection shall read as follows:
(j) the loss of Northwest Cascade, Inc. "NW Cascade" as a
customer within twelve (12) months of the Closing (the "Customer
Period"), provided that Buyer notifies Alltrista of such loss or
suspected loss during the Customer Period. NW Cascade shall be
deemed to have been lost as a customer for purposes of this
Section 10.1(j) during the Customer Period if it ceases
purchasing the Products (as defined in the Sales Agreement, dated
the 14th day of August, 2000, by and between NW Cascade and
Synergy World, a division of Alltrista Plastics Corporation), for
a period of six (6) consecutive months beginning during the
Customer Period or if it notifies Buyer during the Customer
Period that it is ceasing its relationship as a customer of
Buyer. Upon the loss of NW Cascade as a customer during the
Customer Period, Sellers, Holdings and Alltrista shall be
immediately obligated to pay Buyer the amount of $210,000 in cash
as full indemnification for such loss.
46. A new Subsection 10.1(k) is hereby added to the Agreement, and such
new subsection shall read as follows:
(k) any software used by Sellers, Holdings or Alltrista in the
Business as of the date of the Agreement or the date of Closing
for which Buyer has not received or does not receive an
enforceable assignment. The parties hereby acknowledge that Buyer
may immediately obtain a substitute license for the OS 400
software and the Aims software and, upon written notice by any
licensor that Buyer does not have a valid software license for
any other software, may immediately obtain a substitute license
for such other software, all at the full expense of Sellers,
Holdings and Alltrista. This software indemnification obligation
shall survive for a period of one (1) year from the Closing Date.
Notwithstanding anything in this Agreement to the contrary, the
Basket amount for a Claim arising out of this Section 10.1(k)
shall be $20,000 rather than $1,500,000.
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47. A new Subsection 10.1(l) is hereby added to the Agreement, and such
new subsection shall read as follows:
(l) the inability to enforce the assumed provisions of the Blin
APA but only to the extent that such enforcement inability is due
to the partial assignment of the Blin APA to Buyer.
48. Subsection 10.2(b) is hereby amended by deleting the term "Closing
Date" and by replacing it with the term "Effective Time".
49. Subsection 10.3(a) is hereby amended by deleting the second sentence
thereof in its entirety and replacing it with the following:
However, this Section 10.3 will not apply to Sections 10.1(h),
10.1(i), and 10.1(j), to any failure to pay Assumed Liabilities,
to any breach of any party's representations and warranties if
the party making such representations and warranties had
Knowledge of such breach at any time prior to the date on which
such representations and warranties were made, to any intentional
breach of any covenant or obligation, to breaches of Section 5.15
or Section 6.6, to breaches of Section 5.29 of this Agreement due
to Sellers' failure or unwillingness to cure a New Disapproved
Matter, or to costs incurred by Buyer due to the environmental
condition of the Assets as of Closing (provided, however, that
Section 10.3 will apply to any costs associated with closure and
removal from service of the Oelwein ground water monitoring wells
that are required by law, regulation or a governmental entity
(the "Oelwein Closure Costs") to the extent such Oelwein Closure
Costs exceed $10,000, and with respect to Oelwein Closure Costs
that are below $10,000, Section 10.3 will not apply.) The parties
agree that the Oelwein Closure Costs shall be at the full expense
of Sellers, Holdings and Alltrista, provided, however, that Buyer
shall request in writing (with a copy to Alltrista) that Blin
Corporation or its successors or assigns pay for such closure and
removal from service, and if Blin Corporation or its successors
or assigns do not remit payment of the Oelwein Closure Costs to
Buyer within thirty (30) days of such written request, Sellers,
Holdings and Alltrista shall be required to promptly remit such
payment to Buyer themselves.
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50. Subsection 10.3(c) of the Agreement is hereby amended by deleting the
term "Section 12.2" appearing in the last line thereof and replacing
it with the term "Section 12.3".
51. Subsection 10.3(d) of the Agreement is hereby amended by deleting the
first sentence thereof in its entirety and replacing it with the
following: "If Buyer has one or more Claims for indemnification, it
shall first offset such Claim(s) against the unpaid principal under
the Promissory Note (following a written notice to Sellers, Holdings
and Alltrista that it intends to offset such Claim(s), which notice
may be the same notice as that described in Section 10.4(a)), and to
the extent there is no unpaid principal under the Promissory Note, it
shall receive the remainder of such indemnification from Sellers,
Holdings and Alltrista in cash."
52. Section 10.6 of the Agreement is hereby amended by adding the text,
"provided, however, this Section 10.6 shall not apply to Sellers',
Holdings' or Alltrista's enforcement of their respective rights under
the Short-Term Note" to the end of the last sentence.
53. Section 11.3 of the Agreement is hereby amended by deleting the words
"Effective Time of" appearing therein.
54. Section 12.5 of the Agreement is hereby amended by deleting the word
"No" appearing at the beginning of the last sentence thereof and
replacing it with the following text: "Except with respect to the
Collateral Assignment of Purchase Agreement dated as of November 28,
2001 by Buyer in favor of the Northern Trust Company, as agent on
behalf of certain banks, which is expressly permitted, no".
This Amendment may be executed in counterparts, each of which shall be
deemed an original but all of which shall constitute one and the same
instrument. However, in making proof hereof, it shall be necessary to produce
only one copy hereof signed by the party to be charged. Signature pages
delivered by facsimile to this Agreement or any document delivered in connection
herewith or at the Closing shall be binding to the same extent as an original.
Except as specifically provided herein, the terms of the Agreement shall
remain unchanged and in full force and effect.
[THE REMAINDER OF THIS PAGE INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
signed in their respective names by an officer thereunto duly authorized as of
the date first above written.
SELLERS: BUYER:
ALLTRISTA PLASTICS CORPORATION WILBERT, INC.
By: /s/ Martin E. Franklin By: /s/ Curtis J. Zamec
---------------------------------- --------------------------------
Martin E. Franklin, President Curtis J. Zamec, President and
Chief Executive Officer
TRIENDA CORPORATION
By: /s/ Martin E. Franklin
----------------------------------
Martin E. Franklin, President
QUOIN CORPORATION
By: /s/ Angela K. Knowlton
----------------------------------
Angela K. Knowlton, Treasurer
ALLTRISTA CORPORATION
By: /s/ Martin E. Franklin
----------------------------------
Martin E. Franklin, Chairman and
Chief Executive Officer
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