EXHIBIT 10.2
AMENDMENT NO. 1 TO THE
ASSET PURCHASE AGREEMENT
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This AMENDMENT NO. 1 to the Asset Purchase Agreement, dated as of June
17, 1996, is by and among Brockway Standard, Inc., a Delaware corporation
("Buyer"), Davies Acquisition Corp., a Delaware corporation and Buyer's designee
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("Designee"), BWAY Corporation, a Delaware corporation ("BWAY"), Van Dorn
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Company, an Ohio corporation ("Seller"), and Crown Cork & Seal Company, Inc., a
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Pennsylvania corporation ("Crown").
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The parties hereto are party to an Asset Purchase Agreement, dated as
of April 29, 1996 (the "Asset Purchase Agreement"), and wish to make certain
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amendments thereto. Capitalized terms not otherwise defined herein shall have
the meaning given to such terms in the Asset Purchase Agreement.
Pursuant to the terms of the Asset Purchase Agreement, Buyer and BWAY
have designated that Designee shall purchase the Property and assume the Assumed
Liabilities and the Assumed Contracts (other than the PPG and United Coatings
supply contracts, which Buyer is assuming).
Nonetheless, in accordance with Section 10.7 of the Asset Purchase
Agreement, Buyer wishes to confirm to Seller that, notwithstanding the
designation of Designee as the buying entity, Buyer is not relieved of its
obligations under the Asset Purchase Agreement as a result of Designee's
assumption of the Assumed Liabilities.
Finally, the parties wish to change the governing law provision of the
Asset Purchase Agreement, Section 10.15, and of all of the exhibits thereto
(other than the Supply Agreement) from Delaware to Ohio. The law governing the
Supply Agreement shall be Illinois.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
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1. Purchase Price. Section 3.1(b) of the
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Asset Purchase Agreement is hereby amended and restated to read as follows:
Subject to Sections 3.2, 3.3 and 5.17, Designee shall pay to Seller
the sum of $41,519,600 (the "Purchase Price"), payable by wire
transfer of immediately available funds to a bank account designated
by Seller on or prior to the Closing Date.
2. Closing Condition Waivers.
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(a) BWAY, Buyer and Designee hereby waive Seller's and Crown's failure
to satisfy the conditions to Closing set forth in Sections 6.2(d) and
6.2(p)(with respect to the Material Real Property Lease) and any related
covenant with respect to such conditions and Section 7.1(i)(ii). In connection
with the assignment by Seller to Designee of the Material Real Property Lease,
Buyer hereby agrees to execute and deliver to and for the benefit of Hallwood
REI Fund XVI, a Delaware general partnership which is the landlord thereunder
("Landlord"), an unconditional guaranty, in form reasonably acceptable to Buyer
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and Landlord, with respect to the Lease.
(b) While BWAY, Buyer and Designee have asserted (although Crown and
Seller have not and do not hereby acknowledge) that the failure to provide a
working Management Information System at Closing would have constituted a breach
of certain representations contained in the Asset Purchase Agreement and as such
the condition to Closing set forth in Section 7.1(a) of the Asset Purchase
Agreement would not have been satisfied. However, in exchange for receiving the
computer services described in the Transitional Services Agreement, BWAY, Buyer
and Designee hereby acknowledge that such condition to Closing with respect to
such issue has been satisfied.
(c) Furthermore, the Parties hereto hereby waive the requirement
pursuant to Section 3.4 of the Asset Purchase Agreement to provide a purchase
price allocation schedule prior to the Closing Date and agree that such schedule
shall be mutually prepared and agreed to by the parties hereto within a
reasonable period of time (which shall not exceed 90 days) after the date
hereof.
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3. Definitions. Section 10.1 of the Asset Purchase
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Agreement is hereby amended by adding the following definition thereto:
The term "Designee" means Davies Acquisition Corp., a Delaware corporation.
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4. Governing Law. Section 10.15 of the
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Asset Purchase Agreement is hereby amended and restated to read as follows:
This Agreement shall in all respects be construed in accordance with
and governed by the laws of the State of Ohio. The parties agree that
any action arising out of this Agreement shall be venued in the
federal, state or local courts located in, or otherwise having
jurisdiction over Ohio, and the parties hereby consent to personal
jurisdiction in such courts and waive any objection based on the
defense of an inconvenient forum and any objection to jurisdiction or
venue of any action instituted hereunder.
5. Confirmation of Obligations.
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(a) Buyer hereby unconditionally confirms to Seller that it shall
perform and remain liable for the performance of its obligations under the Asset
Purchase Agreement, including without limitation the liabilities incurred
pursuant to the Assumed Liabilities notwithstanding the assumption thereof by
Designee, in accordance with the terms of the Asset Purchase Agreement (the
"Confirmation").
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(b) Notwithstanding Designee's assumption of the Assumed Liabilities,
neither Seller nor Crown shall be required to make any claim against Designee
with respect to any of Buyer's obligations under the Asset Purchase Agreement
before it may make or pursue any such claim against Buyer.
(c) Buyer acknowledges that valuable consideration supports this
Confirmation (including, without limitation, the consideration set forth in the
recitals above as well as Seller's commitments pursuant to the Asset Purchase
Agreement).
(d) This Confirmation is absolute and unconditional and shall not be
changed or affected by any representation, oral agreement, act or thing
whatsoever, except by a writing signed by the parties hereto.
(e) Neither Seller nor Crown shall by any act, delay, omission or
otherwise be deemed to have waived any of its remedies hereunder, and no waiver
by Seller or Crown shall be valid unless in writing and signed by Seller and
Crown and then only to the extent therein set forth. A waiver by Seller or
Crown of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which Seller or Crown would otherwise
have on any further occasion.
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6. Closing. Section 6.1 of the Asset Purchase
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Agreement is hereby amended and restated to read as follows:
This transaction shall close (the "Closing") and all deliveries to be
made at the time of closing shall take place at the later of (a) 11:00
a.m., on June 17, 1996 provided that each of the conditions to Closing
set forth in Article VII (the "Closing Date"), has then been satisfied
or waived, at the offices of Kirkland & Ellis, 200 East Randolph
Drive, Chicago, Illinois 60601, or at such other place or date as may
be agreed upon from time to time in writing by the parties. Unless
otherwise agreed to in writing by the parties, the Closing Date shall
take place no later than September 9, 1996.
7. Tax Liens. The liabilities identified
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as "Tax Exceptions" on Schedule 4.2(g) shall not be either a Permitted Lien or
Permitted Encumbrance, but shall be Retained Liabilities.
8. Consents. Section 5.6
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of the Asset Purchase Agreement is hereby amended by deleting the first and
second sentences thereof. Schedule 1.1(l) is hereby amended by deleting the
exception to the first sentence thereof.
9. Canadian Counsel Fees. Each of Buyer
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and Seller shall pay when due fifty percent (50%) of the sum of the total amount
of the fees incurred by the parties hereto for services provided in connection
with the Asset Purchase Agreement, the Additional Agreements and the
transactions contemplated thereby by (a) Goodman Phillips & Vineberg, special
counsel to Buyer, and (b) Miller Thomson, special counsel to seller.
10. Miscellaneous.
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(a) Notices to the parties hereto shall be provided the parties hereto
in accordance with Section 10.5 of the Asset Purchase Agreement, except that any
notice to Designee shall be delivered to the same address as that specified
therein for Buyer.
(b) Nothing herein, express or implied, is intended or shall be
construed to confer upon or give to any person, firm, corporation or legal
entity, other than the parties hereto, any rights, remedies or other benefits
under or by reason of this Amendment No.1.
(c) This Amendment No.1 shall be governed by, and shall be construed
and enforced in accordance with, the internal laws of the State of Ohio, without
regard to conflict of laws provisions.
(d) This Amendment No. 1 may be executed in multiple counterparts,
each of which shall be deemed an original, but all of which taken together shall
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constitute one and the same instrument. Facsimile signatures shall be deemed
acceptable for the execution of this Amendment No. 1, the Asset Purchase
Agreement and all other agreements contemplated hereby or thereby.
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IN WITNESS WHEREOF, this Amendment No. 1 has
been executed as of the day first written above.
BWAY CORPORATION
By:
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Its:
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BROCKWAY STANDARD, INC.
By:
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Its:
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DAVIES ACQUISITION CORP.
By:
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Its:
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VAN DORN COMPANY
By:
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Its:
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CROWN CORK & SEAL COMPANY, INC.
By:
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Its:
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