EXHIBIT 10.2
AMENDMENT TO PURCHASE AGREEMENT
THIS AMENDMENT dated June 1, 2006 (the "Amendment") to the Purchase
Agreement dated as of February 22, 2006 ("Agreement"), is made by and between
Amcor Limited, a company organized under the laws of New South Wales ("Amcor
Australia"), and Silgan Holdings Inc., a company organized under the laws of
Delaware ("Silgan"). Capitalized terms not otherwise defined herein shall have
the meaning ascribed to such terms in the Agreement.
RECITALS
WHEREAS, Amcor Australia and Silgan have entered into the Agreement
described above; and
WHEREAS, subject to the terms and conditions set forth herein, the parties
hereto wish to amend certain provisions of the Agreement as provided herein;
NOW, THEREFORE, it is agreed;
I. Amendments to the Agreement
A. Clause (ii) of the definition in Section 1.1 of "Acquired Company
Excluded Liabilities" is hereby deleted in its entirety and replaced
with the following:
"(ii) The liabilities and obligations of Amcor Shanghai, Amcor Turkey,
Amcor Polska, Amcor Venezuela, Amcor South East Asia and Amcor Asia
Pacific included in the Closing Indebtedness;"
B. The definition in Section 1.1 of "Selling Parties' Knowledge" is
hereby deleted in its entirety and replaced with the following:
"Selling Parties' Knowledge" means the knowledge of Xxxxx Xxxxxxxxx,
Xxxxx Xxxxxxxx, Volker Spiesmacher, Xxxxxx Xxxxx, Xxx Xxxxxx, Klass
Xxxxxx (as to all human resources, employee benefits, labor and other
related matters only), Xxxxxxx Xxxxxxxx (as to all environmental and
other related matters only), Xxxxx XxxXxxxxxx, Xxxxx Xxxx (as to all
matters relating to Amcor Asia Pacific, Amcor South East Asia, Amcor
Investments and Amcor Properties, collectively, and the business of
such Acquired Companies only), Xxxx Xxxx (as to all matters relating
to Amcor Shanghai and the business of Amcor Shanghai only), Xxxxxx
Xxxxxxxxx (as to all matters relating to Amcor Brazil and the business
of Amcor Brazil only), Xxxxxxxxx Xxxxxxx (as to all matters relating
to Amcor Venezuela and the business of Amcor Venezuela only),
Xxxxxxxxx Xxxxxxxx (as to all matters relating to Amcor Italy (and
Newco Italy upon the occurrence of the Newco Italy Contribution) and
the business of Amcor Italy and Newco Italy only), Xxxxx Xxxxx (as to
all matters relating to Amcor Polska and the business of Amcor Polska
only), Abubekir Yueksel (as to all matters relating to Amcor Turkey
and the business of Amcor Turkey as of February 22, 2006) and Xxxxxx
Xxxxx (as to all matters relating to Amcor Turkey and the business of
Amcor Turkey as of the date hereof and as of the date of the closing
of the purchase and sale of the Purchased Equity of Amcor Turkey),
without independent investigation.
For purposes of Section 4.27 hereof, Selling Parties' Knowledge shall
only include the knowledge of Xxxxx Xxxxxxxxx, Xxxxx Xxxxxxxx, Xxxxxx
Spiesmacher and Xxxxxx Xxxxx."
C. The definition in Section 1.1 for "Specified Approval" shall be
deleted in its entirety and replaced with the following:
"Specified Approvals" means (i) in respect of Amcor Shanghai, all
Consents of Governmental Entities required for the sale of the
Purchased Equity of Amcor Shanghai to the applicable Purchaser; (ii)
in respect of Amcor Brazil, the final, non-appealable judgment of the
Brazilian Courts in favor of Amcor Brazil in respect of that certain
legal proceeding bearing docket number 671/00 in the 0xx Xxxxx Xxxxx
xx Xxx Xxxxxxxx, Xxxxxx, involving Remaprint Embalagens Ltda, Amcor
Brazil and Xx. Xxxxxxx Xxxx Xxxxxxxx (as the trustee in charge of
Remaprint Embalagens Ltda. bankrupt estate) and any other bankruptcy
proceeding involving directly or indirectly Amcor Brazil as a debtor,
as confirmed by an opinion of Amcor Brazil's legal counsel in Brazil
in form and substance reasonably satisfactory to Silgan; (iii) in
respect of Amcor Venezuela, (a) written waivers or the non-exercise
within the applicable time period of any rights of first refusal of
shareholders or other holders of any equity interest (other than Amcor
Australia or any of its Affiliates) in Amcor Venezuela, confirmed by a
certificate of an officer of Amcor Australia that the applicable
waivers were received or the applicable time periods have expired,
together with the originals of such waivers, if any, all in form and
substance reasonably satisfactory to Silgan and (b) all Book Cash
Balances of Amcor Venezuela as of the close of business, local time
for Amcor Venezuela, on the day immediately prior to the Closing Date
("Venezuela Book Cash Balances") in excess of US $209,000 shall have
been distributed out of such company; provided such distributions or
payments are net of any Taxes payable by Amcor Venezuela with respect
thereto, it being understood that the applicable Purchaser shall
cooperate in effecting such distributions; and (iv) in respect of
Amcor Asia Pacific, Amcor South East Asia, Amcor Investments and Amcor
Properties, collectively, an amendment to the Supply Agreement, dated
April 6, 2001, among Cerebos Pacific Limited ("Cerebos"), Amcor
Deutschland and Amcor South East Asia, as amended (the "Cerebos
Agreement"), containing the terms and conditions set forth on Annex B.
Solely for purposes of determining whether the closing of the purchase
and sale of a Specified Interest must occur under this Agreement and
not for the purposes of determining any damages to which any Party may
be entitled pursuant hereto, if Amcor Australia disputes any
determination by Silgan as to whether a Specified Approval shall have
been obtained and the matter is adjudicated in accordance with Section
11.9 hereof, the issue upon adjudication for such purposes shall be
whether such Specified Approval was in fact obtained and not whether
Silgan acted reasonably in determining whether such Specified Approval
was obtained.
D. The definition in Section 1.1 for "Specified Time Period" shall be
deleted in its entirety and replaced with the following:
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""Specified Time Period" means with respect to Amcor Brazil two (2)
years after the Closing Date, with respect to Amcor Shanghai nine (9)
months after the Closing Date and with respect to each of the other
Specified Interests six (6) months after the Closing Date."
E. Sections 2.4(b) and (c) are hereby deleted in their entirety and
replaced with the following:
"(b) the excess of the aggregate amount of Indebtedness of Amcor
Shanghai, Amcor Turkey, Amcor Polska, Amcor Venezuela, Amcor South
East Asia and Amcor Asia Pacific (whether owed to third parties or, in
the case of Amcor Polska and Amcor Shanghai only, to the Selling
Parties or their Affiliates (other than another Acquired Company))
over the aggregate amount of Indebtedness owed to the Acquired
Companies by third parties (other than the Selling Parties or their
Affiliates, including the Acquired Companies) in each case, existing
as of the close of business, local time for the Subject Companies, on
the day immediately prior to the Closing Date (collectively the
"Closing Indebtedness"), it being acknowledged that if the Closing
Indebtedness is a negative number, it shall be added to the amount set
forth in Section 2.4(a), plus
(c) the amount (if any) of the Book Cash Balances (excluding the
Venezuela Book Cash Balances in excess of US $209,000 existing as of
the close of business, local time for such Acquired Company, net of
any overdrafts in respect of bank accounts of such Acquired Company,
all on the day immediately prior to the Closing Date) existing as of
the close of business, local time for each Acquired Company, net of
any overdrafts in respect of bank accounts of such Acquired Company,
all on the day immediately prior to the Closing Date (the "Closing
Date Book Cash Balances") up to EUR 11.5 million in excess of xxxxx
cash in the aggregate; provided that to the extent such amount exceeds
EUR 1.5 million in the aggregate, only one-half of such excess
amount shall constitute Closing Date Book Cash Balances for the
purposes of the Purchase Price notwithstanding that all Acquired
Companies shall retain all Book Cash Balances after the Closing;
provided, further that the Book Cash Balances in excess of EUR 1.5
million reside in the Acquired Companies reasonably acceptable to
Silgan in good faith, it being understood that no Acquired Company
shall have overdrafts in respect of bank accounts of such Acquired
Company aggregating in excess of the Book Cash Balances of such
Acquired Company (it being understood that, US $209,000 of the
Venezuela Book Cash Balances shall not be included in determining
whether the amount of Closing Date Book Cash Balances exceeds
EUR 1.5 million and Silgan shall pay Amcor Australia dollar for
dollar for such amount), minus"
F. The first sentence in Section 2.6 shall be deleted in its entirety and
replaced with the following:
"An allocation of the Purchase Price shall be as set forth on Schedule
2.6."
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G. Section 6.10(b) is hereby deleted in its entirety and replaced with
the following:
"(b) The Parties further agree and acknowledge that any intercompany
Indebtedness for borrowed money between an Acquired Company (on the
one hand) and a Selling Party or an Affiliate of a Selling Party,
including an Acquired Company (on the other hand) shall be paid in
full prior to Closing; provided that intercompany Indebtedness for
borrowed money owed by Amcor Polska to Amcor UK Finance Limited or
Amcor Shanghai to Amcor Australia shall remain outstanding and shall
be repaid at or immediately following the Closing for such Acquired
Company; provided, however, that to the extent necessary the amount of
such intercompany Indebtedness estimated at Closing for the purposes
of determining the amount of Closing Indebtedness will be reconciled
with the actual amount of such intercompany Indebtedness as finally
determined by the Parties after Closing pursuant to Section 2.5 and
any outstanding balances shall be promptly settled as therein set
forth."
H. Section 6.18 is hereby deleted in its entirety and replaced with the
following:
"Section 6.18 Third-Party Indebtedness; Releases.
(a) The Selling Parties agree and acknowledge that any third-party
Indebtedness for borrowed money between an Acquired Company (other
than Amcor Shanghai, Amcor Turkey, Amcor Polska, Amcor Venezuela,
Amcor South East Asia and Amcor Asia Pacific) and a third party shall
be paid in full prior to Closing.
(b) Within thirty (30) days after the Closing Date, in respect of the
Indebtedness of Amcor Shanghai, Amcor Turkey, Amcor South East Asia
and Amcor Asia Pacific outstanding as of the Closing Date, the
respective Acquired Company shall either (i) repay all amounts due
under such Indebtedness or (ii) in respect of Indebtedness not repaid,
deliver to Amcor Australia a release and discharge from the lender, in
form and substance reasonably satisfactory to Amcor Australia, in
respect of such Indebtedness. The third-party Indebtedness of Amcor
Polska shall be paid in full by Amcor UK Finance Ltd. as paying agent
for Amcor Polska using cash that had been distributed to Amcor UK
Finance Ltd. by Amcor Polska prior to the date hereof.
(c) In respect of the guarantees to third parties set forth on
Schedule 6.18, Silgan shall use commercially reasonable efforts to
deliver to Amcor Australia releases under such guarantees."
I. Section 6.28 shall be deleted in its entirety and replaced with the
following:
"Section 6.28 Venezuela. As soon as practicable, the Selling Parties
shall dispose of all asbestos-containing materials stored during the
period Amcor Venezuela is owned by the applicable Selling Party on the
grounds of the Amcor Venezuela manufacturing plant located in Valencua
- Edo. Carabobo, Venezuela in compliance with all applicable Laws and
reasonably satisfactory to Silgan. Silgan shall reasonably cooperate
with the Selling Parties in connection therewith, including by taking
all
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reasonable steps to ensure that storage and containment procedures
implemented by the Selling Parties are not disturbed or tampered with
and by giving the Selling Parties reasonable access to the asbestos
containing material to check and maintain the storage and containment
thereof and to effect the disposal of the asbestos containing
materials. As soon as practicable, the Selling Parties shall use their
commercially reasonable efforts to cause all Venezuela Book Cash
Balances in excess of US $209,000 to be distributed out of such
company; provided such distributions or payments are net of any Taxes
payable by Amcor Venezuela with respect thereto."
J. Pursuant to Section 11.1(b) of the Purchase Agreement, the Parties
agree that the sale of the Capital Stock of Amcor Turkey shall be
treated as a Specified Interest. The Holdback Amount for Amcor Turkey
shall be EUR 15,000,000 and the Specified Interest Target Working
Capital Amount shall be EUR 5,200,000.
K. Section 3.4(e) is hereby deleted in its entirety and replaced with the
following:
"(e) Amcor Australia shall be obligated to separate the Philippines
metal closures and Philippines Bandguard business and to sell the
Philippines metal closures business to Silgan or any of its Affiliates
for EUR 8,532,000 within three (3) months after the Closing Date on
the terms and conditions for the sale of other Acquired Companies
under the Purchase Agreement, including a transition services
agreement for six (6) months for the Bandguard business (consistent
with the Transition Services Agreement) for services provided by the
Philippines metal business to the Bandguard business. Additionally,
Silgan shall and shall cause its subsidiaries to reasonably assist, at
no cost to Silgan or such subsidiaries, the Bandguard business to
mitigate additional costs that the Bandguard business may incur as a
result of such separation. In connection with the foregoing terms of
this paragraph, the Parties agree to enter into an amendment to this
Agreement as necessary to effectuate the foregoing. In addition, the
parties will continue to work together to try to obtain the Specified
Approval with respect to the Bandguard business."
L. Each of Schedules (A), 2.2(a)(ix), 3.2(c), 3.2(k), 4.1(A), 4.5(a),
4.10, 4.11(a), 4.12(a), 4.12(d), 4.15, 4.18, 4.19(a), 4.19(b), 4.20,
4.21, 4.28 and 6.18 to the Agreement is hereby deleted in its entirety
and replaced with the corresponding Schedule attached hereto.
M. Amcor Australia shall have caused each of the Selling Parties to
deliver to Silgan duly executed counter-parts to this Amendment.
II. Miscellaneous Provisions
A. Interpretation.
To the extent that any term or provision of the Agreement is inconsistent with
the terms or provisions of this Amendment, the terms and conditions of this
Amendment shall prevail and the Agreement shall be interpreted accordingly.
Except as expressly set forth herein, the terms and conditions of the Agreement
shall continue in full force and effect.
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B. Counterparts.
This Amendment may be executed in any number of counterparts, each of which
(whether with an original or faxed signature) shall be considered one and the
same agreement.
C. Governing Law.
This Agreement shall be construed interpreted, enforced and governed by and
under the Laws of New York without regard to its choice of law rules.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
signed by their respective officers thereunto duly authorized, as of the day and
year first written above.
AMCOR LIMITED
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Authorized Attorney
SILGAN HOLDINGS INC.
By: /s/ Xxxxx X. Xxxxx, III
-------------------------------------
Name: Xxxxx X. Xxxxx, III
Title: Senior Vice President, General
Counsel and Secretary
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