FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
FIRST AMENDMENT (this "FIRST AMENDMENT"), dated as of July 12,
2002 to the Agreement and Plan of Merger, dated as of May 25, 2002, among
XX Xxxxx Acquisition Corp., a Delaware corporation, GS Capital Partners
2000, L.P., GS Capital Partners 2000 Offshore, L.P., GS Capital Partners
2000 GmbH & Co. Beteiligungs KG, Bridge Street Special Opportunities Fund
2000, L.P., GS Capital Partners 2000 Employee Fund, L.P. and Stone Street
Fund 2000, L.P., BPC Holding Corporation, a Delaware corporation, Xxxxx
Plastics Corporation, a Delaware corporation, the Stockholders of Holding
listed on SCHEDULE I attached thereto, Atlantic Equity Partners
International II, L.P., X.X. Xxxxxx Partners (SBIC), LLC, BPC Equity, LLC
and Xxx X. Boots, an individual (as amended, supplemented or otherwise
modified from time to time, the "AGREEMENT").
WHEREAS, the parties hereto desire to amend the Agreement pursuant to
Section 11.8 thereof in the manner set forth below.
NOW, THEREFORE, the parties hereto agree as follows:
1. All terms used herein which are defined in the Agreement and
not otherwise defined or amended herein are used herein as defined in the
Agreement.
2. Section 3.2(c) of the Agreement is hereby amended by
inserting the following after the words "Per Share Cash Holdback Amount":
", which amounts shall be paid from an account established by
Buyer and funded solely with equity contributions from the
stockholders of Buyer".
3. The parties hereto hereby acknowledge and confirm that the
Agreement is, and shall continue to be, in full force and effect and is
hereby ratified and confirmed in all respects except that on and after the
date of this First Amendment all references in any related document to "the
Agreement", "the Merger Agreement", "thereto", "thereof", "thereunder" or
words of like import referring to the Agreement shall mean the Agreement as
amended by this First Amendment.
4. (a) This First Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts,
each of which shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
(b) Section and paragraph headings are included for convenience
of reference only and shall not constitute a part of this First Amendment
for any other purpose.
* * *
IN WITNESS WHEREOF, this First Amendment has been signed on behalf of
each of the parties hereto as of the date first written above.
XX XXXXX ACQUISITION CORP.
By:________________________________
Name:
Title:
GS FUNDS:
GS CAPITAL PARTNERS 2000, L.P.
By: GS Advisors 2000, L.L.C., its general
partner
By:________________________________
Name:
Title:
GS CAPITAL PARTNERS 2000, OFFSHORE,
L.P.
By: GS Advisors 2000, L.L.C., its general
partner
By:________________________________
Name:
Title:
GS CAPITAL PARTNERS 2000, GMBH & CO.
BETEILIGUNGS KG
By: Xxxxxxx Xxxxx Management GPGmbH, its
general partner
By:_________________________________
Name:
Title:
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XXXXXX XXXXXX XXXXXXX XXXXXXXXXXXXX XXXX
0000, L.P.
By: Bridge Street Special Opportunities
2000, L.L.C., its general partner
By:_________________________________
Name:
Title:
GS CAPITAL PARTNERS 2000 EMPLOYEE FUND,
L.P.
By: GS Employee Funds 2000, L.L.C., its
general partner
By:_________________________________
Name:
Title:
STONE XXXXXX XXXX 0000, X.X.
By: Stone Street 2000, L.L.C., its general
partner
By:_________________________________
Name:
Title:
BPC HOLDING CORPORATION
By:_________________________________
Name:
Title:
XXXXX PLASTICS CORPORATION
By:_________________________________
Name:
Title:
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SELLERS:
By: _______________________________
Xxx X. Boots
By: _______________________________
Xxxxx X. Xxxxxxxxxx
THE XXXXX X. XXXXXXXXXX CHARITABLE REMAINDER
UNITRUST
By: _______________________________
Xxxxx X. Xxxxxxxxxx, as Trustee
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ATLANTIC EQUITY PARTNERS
INTERNATIONAL II, L.P.
By: Atlantic Equity Associates
International II, L.P., its General
Partner
By: Buaron Holdings Ltd., its Managing
General Partner
By:_________________________________
Name:
Title:
BPC EQUITY, LLC
By: Aetna Life Insurance Company, its Member
By:_________________________________
Name:
Title:
X.X. XXXXXX PARTNERS (SBIC), LLC
By:
By:_________________________________
Name:
Title:
THE NORTHWESTERN MUTUAL LIFE INSURANCE
COMPANY
By:_________________________________
Name:
Title:
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