EXHIBIT 2(b)
AMENDMENT TO PURCHASE AND SALE AGREEMENT
AMENDMENT dated as of August 25, 1994, among First Brands Corporation, a
Delaware corporation ('First Brands'), Prestone Holdings Inc., a Delaware
corporation formerly named Vestar/Freeze Holdings Corporation ('Holdings'), and
Vestar Equity Partners, L.P., a Delaware limited partnership ('Vestar').
WITNESSETH:
WHEREAS a Purchase and Sale Agreement, dated as of June 30, 1994 (the
'Purchase and Sale Agreement'; capitalized terms used herein and not defined
shall have the meanings given to them in the Purchase and Sale Agreement), has
been entered into by and among First Brands, Holdings and Vestar, providing for,
among other matters, the sale by First Brands and its affiliates to Holdings and
its assignees of the Assets and the assumption by Holdings of the Assumed
Liabilities;
WHEREAS the Purchase and Sale Agreement provides that, effective as of the
Closing, Holdings shall assume and be solely liable and responsible for any and
all Assumed Liabilities;
WHEREAS the Purchase and Sale Agreement further provides that Holdings may
assign all or part of its rights under the Purchase and Sale Agreement to one or
more corporations owned or controlled by Holdings;
WHEREAS Holdings, as of the date hereof, has assigned to its indirect
wholly owned subsidiary, Prestone Products (Canada) Limited, an Ontario
corporation ('Prestone Canada'), its right to acquire certain of the Assets
being transferred by First Brands (Canada) Corporation, an Ontario corporation
('FB Canada'), and has assigned its right to acquire all of the remaining Assets
(except those other Assets listed on Exhibit A hereto ('Exhibit A Assets')), to
its wholly owned subsidiary, Prestone Products Corporation, a Delaware
corporation ('Prestone Products'); and
WHEREAS the Purchase and Sale Agreement provides that the parties thereto
may amend such agreement by written agreement of each party thereto;
NOW, THEREFORE, the parties hereto agree to amend the Purchase and Sale
Agreement as follows:
1. The first sentence of Article 3.1 of the Purchase and Sale
Agreement is hereby deleted in its entirety and the following sentence is
inserted in lieu thereof:
'Subject to the provisions of Article 3.1(b) hereof and except as
otherwise provided in this Agreement, effective as of the Closing, without
any further responsibility or liability of or recourse to Seller or its
affiliates or any of Seller's or such affiliates' directors, shareholders,
officers, employees, agents, consultants, representatives, successors,
transferees or assigns (hereinafter sometimes referred to as 'Seller
Indemnified Parties'), (i) each of Prestone
Canada and Prestone Products shall absolutely and irrevocably assume and be
jointly and severally liable and responsible for any and all Assumed
Liabilities (as defined in this Article 3.1(a)) relating to or arising out
of the Assets acquired by Prestone Canada and (ii) Prestone Products shall
absolutely and irrevocably assume and be solely liable and responsible for
any and all other Assumed Liabilities.'
2. The fourth sentence of Article 3.1 of the Purchase and Sale
Agreement is hereby amended by adding, 'Prestone Products and Prestone
Canada' after the reference therein to 'Buyer.'
3. The fifth sentence of Article 3.1 of the Purchase and Sale
Agreement is hereby deleted in its entirety and the following sentence is
inserted in lieu thereof:
'(i) Prestone Products and Prestone Canada shall jointly and
severally indemnify and hold the Seller Indemnified Parties harmless
from and against any and all Assumed Liabilities (including, without
limitation, reasonable attorneys' fees and expenses of counsel) of
whatever kind and nature relating to or arising out of the Assets
acquired by Prestone Canada and Prestone Products shall indemnify and
hold the Seller Indemnified Parties harmless from and against any and
all other Assumed Liabilities (including, without limitation, reasonable
attorneys' fees and expenses of counsel) of whatever kind and nature and
(ii) Buyer shall indemnify and hold the Seller Indemnified Parties
harmless from and against any damage, liability, loss, cost or expense
(including any penalties, fines, reasonable attorneys' fees and other
costs incident to proceedings or investigations or the prosecution or
defense of any claim) (collectively, 'Damages') which are caused by or
arise out of (a) the failure by Buyer to perform or fulfill any
agreement or covenant to be performed or fulfilled by it under this
Agreement or (b) any breach of any representation or warranty of Buyer.
4. Article 1.3 of the Purchase and Sale Agreement is hereby amended as
follows:
a. 'Research and Development Sharing Agreement' shall mean the
Still River Services Agreement between Seller and Prestone Products in
the form mutually agreed upon by such parties.
b. 'Trademark License' shall mean (i) the Trademark License
Agreement between First Brands Properties, Inc. and Prestone Products
and (ii) the Trademark License Agreement between First Brands (Canada)
Corporation and Prestone Products, each in the form mutually agreed upon
by such parties.
c. 'Contract Packaging Agreements' shall mean the Contract
Packaging Agreement -- Automotive Products between Seller and Prestone
Products in the form mutually agreed upon by such parties.
d. 'Bridging Agreement' shall mean the Bridging Agreement --
Corporate Services between Seller and Prestone Products in the form
mutually agreed upon by such parties.
e. 'Distributor Agreements' shall mean the Distributor Agreement
between Seller and Prestone Products in the form mutually agreed upon by
such parties.
f. 'STP Bridging Agreement' shall mean the Contract Packaging
Agreement -- 'STP' Packaging and Plastic Straws between Seller and
Prestone Products in the form mutually agreed upon by such parties.
g. 'Contingent Rights Instrument' shall have the meaning ascribed
to it in the Purchase and Sale Agreement.
h. 'Canadian Bridging Agreement' shall mean the 'Bridging
Agreement -- Corporate Services -- Canada' between FB Canada and
Prestone Canada in the form mutually agreed upon by such parties.
i. 'Quality Assurance Agreement' shall mean the 'Bridging
Agreement -- East Hartford Services' between Seller and Prestone
Products in the form mutually agreed upon by such parties.
j. The last sentence of Article 1.3 is hereby amended by adding
'and the letter agreement between Seller and Buyer obligating each of
them and their respective subsidiaries not to employ each other's
employees prior to the third anniversary of the Closing in the form
mutually agreed upon by such parties' after the reference therein to
'Article 1.3.'
5. The third sentence of Article 16.1 of the Purchase and Sale
Agreement is hereby amended by adding '(i)' after the first reference to
'Buyer' in the proviso contained in such sentence and by adding after the
reference to 'third party,' in such proviso the following: 'or (ii) Buyer
to grant a security interest in all of its right, title and interest to, in
and under this Agreement to Chemical Bank, as Collateral Agent (in such
capacity, the 'Collateral Agent') pursuant to that certain Collateral
Assignment, dated as of the Closing Date, from Buyer and each subsidiary of
Buyer party thereto to the Collateral Agent'.
IN WITNESS WHEREOF, the parties have cause this Amendment to be executed by
their duly authorized representatives as of the date first written above.
FIRST BRANDS CORPORATION
By: /s/ Donald A. DeSantis
Name: Donald A. DeSantis
Title: Senior Vice President
PRESTONE HOLDINGS INC.
By: /s/ Robert L. Rosner
Name: Robert L. Rosner
Title: Vice President,
Secretary & Treasurer
VESTAR EQUITY PARTNERS, L.P.
By: /s/ Robert L. Rosner
Name: Robert L. Rosner
Vestar Associates, L.P.,
its General Partner
By: Vestar Associates Corporation,
its General Partner
By: /s/ Robert L. Rosner
Name: Robert L. Rosner
Title: Managing Director