EXECUTION COPY
ASSET PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 TO THE ASSET PURCHASE AGREEMENT, dated as of April
__, 2002 (the "Amendment") among Tilia International, Inc., a Cook Islands
corporation ("TILIA"), Tilia, Inc., a California corporation ("TILIA U.S.") and
Tilia Canada, Inc., a corporation organized under the Canada Business
Corporation Act ("TILIA CANADA") (Tilia, Tilia U.S. and Tilia Canada are
collectively referred to herein as the "SELLERS", and each individually, a
"SELLER"), Alexander Schilling (the "SELLERS' REPRESENTATIVE") and Alltrista
Corporation, a Delaware corporation (the "BUYER").
W I T N E S S E T H:
WHEREAS, the Buyer, Sellers and Sellers' Representative entered into an
Asset Purchase Agreement, dated as of March 27, 2002 (the "PURCHASE AGREEMENT")
whereby the Buyer will purchase substantially all of the assets of the Sellers'
Business; and
WHEREAS, each of the parties wishes to amend the Purchase Agreement, as
set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the respective
covenants and agreements hereinafter contained, the parties hereto hereby agree
that the Purchase Agreement shall be amended in the manner and effective upon
the terms and conditions set forth below:
Capitalized terms used herein, unless otherwise defined, shall have the
meanings ascribed to them in the Purchase Agreement.
1. Section 1. The definitions of "Assignment and Assumption Agreement",
"Patent Assignment Agreement", "Purchased Property" and "Trademark Assignment
Agreement" in Section 1 of the Purchase Agreement are hereby amended and
restated in their entirety as follows:
"ASSIGNMENT AND ASSUMPTION AGREEMENT" means those several Bill of Sale,
Assignment and Assumption Agreements to be executed at Closing to effect the
transfer of the Purchased Property (except to the extent any portion of the
Purchased Property is transferred pursuant to a Trademark Assignment Agreement,
Patent Assignment Agreement or Domain Name Assignment Agreement) and the
assumption of the Assumed Liabilities, in substantially the form attached hereto
as EXHIBIT A;
"PATENT ASSIGNMENT AGREEMENT" means those several agreements,
substantially in the form attached hereto as EXHIBIT E, pursuant to which the
Sellers will, on the Closing Date, sell and assign all of their right, title and
interest in and to the Patents to the Buyer;
"PURCHASED PROPERTY" means:
(i) the Inventory;
(ii) the Equipment and Machinery;
(iii) the Assigned Contracts;
(iv) the Accounts Receivable;
(v) Cash and Cash Equivalents, excluding (i) any Cash and Cash
Equivalents received by the Sellers pursuant to Section 3 hereof, (ii) any
Cash received by the Sellers pursuant to the exercise of any options to
purchase shares of common stock of Tilia after February 1, 2002, and (iii)
an amount of Cash equal to the remaining rent owed in respect of the Howard
Street Lease (such excluded Cash and Cash Equivalents, collectively the
"EXCLUDED CASH");
(vi) the Intellectual Property;
(vii) the Files and Records;
(viii) the Permits;
(ix) any prepaid expenses with respect to the Purchased Property
or the Business; and
(x) the Intangible Property.
Purchased Property shall not include (i) any deferred tax assets or
refunds with respect to Taxes not reflected on the Financial Statements or that
constitute Excluded Liabilities; (ii) shares of capital stock of Tilia US and
Tilia Canada; (iii) any distributions of Purchase Price proceeds; (iv) assets
not enumerated in items (i) through (x) above; (v) any rights under this
Agreement or under any other agreement between Sellers and Buyer entered into on
or after the Closing Date; (vi) the bank account held at J.P. Morgan
International Bank Limited located in Hong Kong, which immediately prior to the
Closing shall have a Cash balance of no more than $100; (vii) the bank account
held at Union Bank of California located in California, which immediately prior
to the Closing shall have a Cash balance of no more than $100; (viii) the bank
account held at CIBC Oppenheimer located in Canada, which immediately prior to
the Closing shall have a Cash balance of no more than $100; and (ix) any
Excluded Cash held in the bank accounts described in (vi) through (viii) of this
paragraph;
"TRADEMARK ASSIGNMENT AGREEMENT" means those several agreements,
substantially in the form attached hereto as EXHIBIT F, pursuant to which the
Sellers will, on the Closing Date, sell and assign all of its right, title and
interest in and to the Trademarks to the Buyer;
2. Section 8.4(c). Section 8.4(c) of the Purchase Agreement is hereby
amended and restated in its entirety and Section 8.4(d) is hereby added at the
end of Section 8.4(c) as follows:
(c) In the event of a Change of Control, the Buyer shall, at or prior
to the date of such Change of Control fund the Contingent Consideration (less
any amounts claimed by the Buyer under Section 13 hereof) into an escrow account
for payment of the Contingent Consideration to the Sellers (or their assignees),
which amount shall be cash equal to the amount
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of the Aggregate Consideration received in connection with the Change of Control
in excess of $160,000,000, such excess amount not to exceed $25,000,000 (the
"Funded Amount"). If the employment of any two of the persons listed on Schedule
8.4 hereto (or the Replacements of such persons) is terminated in connection
with such Change of Control or within ninety (90) days following such Change of
Control for any reason other than the voluntary termination by the employee,
then the Funded Amount (less any amounts claimed by the Buyer under Section 13
hereof), shall be paid to Tilia or its assigns or designees on the date of
termination of the second such employee to be terminated. The Sellers hereby
acknowledge that the Contingent Consideration may be funded into an escrow
account pursuant to this Section 8.4(c) only if (A) both before and after the
Contingent Consideration would be paid, the Buyer is in pro forma compliance
with the Senior Credit Facility, and (B) after the Contingent Consideration is
paid, the Buyer would have availability under the revolving credit portion of
the Senior Credit Facility of not less than $20,000,000. If the Buyer is unable
to fund the Contingent Consideration (less any amounts claimed by the Buyer
under Section 13 hereof) into an escrow account because of its failure to
satisfy the conditions in the preceding sentence relating to the Senior Credit
Facility, then the Buyer and the Sellers agree that the Buyer shall fund into an
escrow account that amount of such Contingent Consideration in cash to the
extent permissible under the Senior Credit Facility.
(d) For the purposes of Section 8.4(c) the following terms shall have
the following meanings
A. "AGGREGATE CONSIDERATION" shall mean the amount that is equal to the
value of consideration received in such Change of Control including any amount
of any debt assumed, acquired, remaining, outstanding, retired or defeased in
connection with such Change of Control, and any noncompete payments, and in the
case of a Change of Control resulting from the adoption of a plan relating to
the liquidation or dissolution of the Buyer, the aggregate value of the
outstanding stock of the Buyer. Amounts paid into escrow and deferred payments
in connection with a Change of Control will be included as part of the Aggregate
Consideration. Deferred payments will be valued at their net present value.
B. "CAUSE" shall mean any one or more of the following occurrences: (i)
the employee's conviction by, or entry of a plea of guilty or nolo contendere
in, a court of competent and final jurisdiction for any crime which constitutes
a felony in the jurisdiction involved; or (ii) the employee's commission of an
act of fraud or misappropriation of funds or property, whether prior to or
subsequent to the date hereof, upon the Buyer or an Affiliate of the Buyer; or
(iii) gross negligence by the employee in the scope of the employment of such
employee resulting in a material injury to the Buyer or an Affiliate of the
Buyer, violation by such employee of any duty of loyalty to the Buyer or any
Affiliate of the Buyer resulting in a material injury to the Buyer or an
Affiliate of the Buyer, or any other misconduct on the part of such employee
resulting in a material injury to the Buyer or an Affiliate of the Buyer; or
(iv) breach of any Non Competition Agreement between the employee and the Buyer
or an Affiliate of the Buyer; or (v) employee's willful breach of a material
obligation under the Employment Agreement between the employee and the Buyer or
an Affiliate of the Buyer. Notwithstanding the foregoing, as to clauses (c) and
(d) only, the employee shall not be deemed to have been terminated for Cause
without (i) five (5) days written notice to the employee setting forth the
reasons for the intention of the Buyer or the Affiliate of the Buyer who employs
such employee to terminate for Cause,
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and (ii) an opportunity for the employee, within such five (5) day period, to
cure (if the matter is susceptible to cure).
C. "CHANGE OF CONTROL" shall mean any of the following transactions
which occurs prior to December 31, 2004: (1) the direct or indirect sale,
transfer, conveyance or other disposition (other than by way of merger or
consolidation), in one or a series of related transactions, of all or
substantially all of the properties or assets of the division operating the
Business or the Buyer and its subsidiaries taken as a whole to any "person" (as
that term is used in Section 13(d)(3) of the Securities and Exchange Act of
1934, as amended) other than a Permitted Person; (2) the adoption of a plan
relating to the liquidation or dissolution of the Buyer; or (3) the consummation
of any transaction (including, without limitation, any merger or consolidation)
the result of which is that any "person" (as defined above), other than a
Permitted Person, becomes the beneficial owner, directly or indirectly, of more
than 50% of the voting stock of the Buyer, measured by voting power rather than
number of shares.
D. "CONSTRUCTIVE TERMINATION" shall mean the employee's voluntary
resignation from employment following the occurrence (without the employee's
express written consent) of any of the following events: (i) an adverse change
of the employee's title, (ii) a significant reduction in the employee's duties,
position or responsibilities, or the removal of the employee from such position
or responsibilities; (iii) requiring the employee to be based at any place
outside a 40-mile radius from employee's current job location; or (iv) a
reduction in the employee's base salary as provided in the employment agreement
between the Buyer or an Affiliate of the Buyer and the employee.
E. "PERMITTED PERSON" shall mean (i) Martin E. Franklin or Ian Ashken;
(ii) any member of the family of Martin E. Franklin or Ian Ashken; (iii) any
conservatorship, custodianship or decedent's estate of any Person specified in
the foregoing clause (i) or (ii); (iv) any trust established for the benefit of
any Person specified in the foregoing clause (i) or (ii); or (v) any
corporation, limited liability company, partnership or other entity, the
controlling equity interests in which are held by or for the benefit of any one
or more Person specified in the foregoing clause (i) or (ii).
F. "REPLACEMENT" shall mean those employees who have been hired to
replace any employee listed on Schedule 8.4 in the event that any such listed
employee is terminated by the Buyer or an Affiliate of the Buyer for Cause or
voluntarily terminates his or her employment other than by way of Constructive
Termination.
3. Schedule 2.4. Schedule 2.4 to the Purchase Agreement is hereby
amended and restated in its entirety and is attached hereto as so amended.
4. Schedule 2.5. Schedule 2.5 to the Purchase Agreement is hereby
amended and restated in its entirety and is attached hereto as so amended.
5. Schedule 5.15. Schedule 5.15 to the Purchase Agreement is hereby
amended and restated in its entirety and is attached hereto as so amended.
6. Schedule 15. Schedule 15 to the Purchase Agreement is hereby amended
and restated in its entirety and is attached hereto as so amended.
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5. This Amendment shall be effective as if the amendments provided
hereby were included as part of the original Purchase Agreement. Except as
amended hereby, the Purchase Agreement, as amended, shall remain in full force
and effect in accordance with the provisions thereof.
6. This Amendment may be executed in counterparts, each of which shall
be deemed an original, but all of which shall constitute the same instrument.
7. All exhibits and schedules hereto and any documents and instruments
delivered pursuant to any provision hereof are expressly made a part of this
Amendment as fully as though completely set forth herein.
8. Each party shall execute and deliver such further documents and
instruments and shall take such other further actions as may be required to
carry out the intent and purposes of this Amendment.
[Signature page follows.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the date
first above written.
TILIA INTERNATIONAL INC.
by Corporate Directors Limited, Director
By: /s/ Leanne Corvette
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Name: Leanne Corvette
Title: Authorized Aignatory
TILIA INC.
By: /s/ Linda Graebner
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Name: Linda Graebner
Title: President CEO
TILIA CANADA, INC.
By: /s/ Linda Graebner
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Name: Linda Graebner
Title: President CEO
ALLTRISTA CORPORATION
By: /s/ Ian G. H. Ashken
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Name: Ian G. H. Ashken
Title: Vice Chairman, Chief Financial
Officer and Secretary
By: /s/ Alexander Schilling
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Alexander Schilling
As Sellers' Representative
[AMENDMENT 1 TO ASSET PURCHASE AGEEMENT]