5
1121061
Exhibit 2(c)
SECOND AMENDMENT
TO
STOCK PURCHASE AGREEMENT
This SECOND AMENDMENT TO STOCK PURCHASE AGREEMENT (this
"Amendment") is made and entered into as of the 11th day of
October, 2000 by and among MINI CROWN FUNDING CORP., a Delaware
corporation (the "Buyer"), the Buyer's parent, SOVEREIGN
SPECIALTY CHEMICALS, INC., a Delaware corporation (the "Parent"),
IMPERIAL ADHESIVES, INC., an Ohio corporation ("Imperial"), and
NS GROUP, INC., a Kentucky corporation (the "Seller"). The
Buyer, the Parent, the Seller, and Imperial are referred to
herein individually as a "Party" and collectively as the
"Parties." Capitalized terms used but not defined herein shall
have the meaning assigned to them in that certain Stock Purchase
Agreement dated as of September 13, 2000 by and among the
Parties, as amended by that certain First Amendment to Stock
Purchase Agreement dated October 10, 2000 (as amended, the "Stock
Purchase Agreement").
RECITALS
A. Certain disputes have arisen among the Parties
regarding certain terms of the Stock Purchase Agreement.
B. In order to resolve those disputes, the Parties have
agreed to amend the Stock Purchase Agreement as set forth in this
Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing Recitals,
and the mutual agreements herein contained, and other good and
valuable consideration, the receipt and sufficiency of which are
hereby mutually acknowledged, the Stock Purchase Agreement is
amended as follows:
1. Section 4(r) of the Stock Purchase Agreement,
entitled "Environment, Health, and Safety," is hereby
amended by adding the following subsection (xi):
"(xi) There are no polychlorinated biphenynls
("PCB's"), in, immediately adjacent to, on or under, or
migrating from, that certain 60 foot by 60 foot portion
of the Real Property (the "Subject Cincinnati Plot")
that was the subject of that certain report dated June
14, 2000 prepared by BHE Environmental concerning the
Imperial facility located thereat in Cincinnati, Ohio."
2. Section 6(l) of the Stock Purchase Agreement,
entitled "Special Arrangements Relating to Known
Environmental Matters," is hereby amended by deleting the
phrase "in Sections 4(r)(vii), (viii), (ix) and (x)"
beginning at the third line thereof and substituting
therefor the phrase "in Sections 4(r)(vii), (viii), (ix),
(x), and (xi)" in its place and stead.
3. Paragraph (i) of Section 6(l) of the Stock
Purchase Agreement, entitled "Special Arrangements Relating
to Known Environmental Matters," is hereby amended by
inserting the words "with respect to" in between the words
"and" and "any" appearing on the second line thereof.
4. Section 6 of the Stock Purchase Agreement,
entitled "Additional Covenants," is hereby amended by adding
the following new Section 6(n), entitled "Remediation of
PCB's on Subject Cincinnati Plot":
"(n) Remediation of PCB's on Subject
Cincinnati Plot. With respect to any PCB's in,
immediately adjacent to, on or under, or migrating from
the Subject Cincinnati Plot (the "PCB Environmental
Matters"), the Parties hereby agree that following the
Closing, the Buyer and the Seller shall conduct the
following activities relating to the PCB Environmental
Matters (collectively referred to as "PCB Environmental
Activities"): (x) any activities reasonably necessary
for the assessment, sampling, investigation,
monitoring, remediation, abatement or the like relating
to the PCB Environmental Matters (collectively, the
"PCB Environmental Identification and Remediation
Activities"), and (y) the defense, settlement and/or
other resolution of all third party claims against the
Seller, Imperial, the Buyer or the Parent (including
those asserted by any governmental agency) arising from
or relating, to the PCB Environmental Matters, to the
extent such claims are asserted against the Seller,
Imperial, the Buyer or the Parent ("PCB Environmental
Third Party Claims" and "PCB Environmental Claim
Resolution Activities," respectively).
(i) With respect to the conduct of the PCB
Environmental Identification and Remediation Activities and
with respect to any PCB Environmental Claim Resolution
Activities in connection with any PCB Environmental Third
Party Claims brought by any governmental agency, the Parties
hereby agree as follows:
(A) as appropriate, such activities
shall be conducted by an environmental consultant
mutually agreed upon by the Buyer and the Seller;
(B) all submissions to any Governmental
Body, including without limitation work plans,
sampling and analysis plans and health and safety
plans, shall be mutually agreed upon by the Buyer
and the Seller prior to submission;
(C) the Buyer shall deliver to the
Seller copies of all information discovered or
prepared as a result of the Buyer's conduct of any
such activities, including, but not limited to
results of soil or groundwater analysis, pumping
test results, monitoring results and consulting
reports or correspondence;
(D) the Seller shall have the right to
attend all meetings or discussions with any
Governmental Body, and the Seller shall receive
notice of the time and place of the meeting or
discussion within a reasonable time prior to any
such meeting or discussion, provided that so long
as the Buyer has furnished the Seller with such
reasonable advance notice thereof, the Buyer shall
have no responsibility for the Seller's
unavailability or failure to attend any such
meeting; and
(E) the Seller or its representative
shall have the right to enter the relevant portion
of Imperial's Real Property at all reasonable
times for the purpose of observing the conduct or
performance of any such activities, subject to
reasonable health and safety plans or restrictions
imposed on the Seller during such observation.
(ii) With respect to the conduct of any PCB
Environmental Claim Resolution Activities in connection with
any PCB Environmental Third Party Claims other than a PCB
Environmental Third Party Claim brought by a Governmental
Body, the Parties hereby agree as follows:
(A) upon the Buyer's or Imperial's
receipt of any such PCB Environmental Third Party
Claim Buyer shall promptly so notify the Seller in
writing; provided, however, that no delay on the
part of the Buyer in notifying the Seller shall
relieve the Seller from any liability or
obligation hereunder unless (and then solely to
the extent) the Seller is damaged and prejudiced
from adequately participating in the defense of
that PCB Environmental Third Party Claim;
(B) the Buyer shall defend any such PCB
Environmental Third Party Claim with counsel of
its choice reasonably satisfactory to the Seller,
provided that the Seller may retain separate co-
counsel at its sole cost and expense, to
participate in such defense;
(C) the Buyer shall deliver or cause to
be delivered to the Seller copies of all
correspondence, pleadings, motions, briefs,
appeals or other written statements relating to or
submitted in connection with the defense of any
such PCB Environmental Third Party Claim, and
timely notices of, and the right to participate in
any hearing or other court proceeding relating to
any such PCB Environmental Third Party Claim; and
(D) any settlement with respect to any
such PCB Environmental Third Party Claim will be
subject to the mutual agreement of the Buyer and
the Seller.
(iii) The Parties mutually agree that the
appropriateness of any PCB Environmental Activity, the
reasonableness of the extent to which any such activity
shall be undertaken, and the reasonableness of any action
taken by the Buyer and the Seller pursuant to paragraphs (i)
and (ii) of this Section 6(n) shall be determined by
reference to the following standard: a reasonable
businessman who owns a piece of real estate on which an on-
going manufacturing business is being operated, and who
intends to continue to operate that business on that real
estate; and in any event, in compliance with all applicable
environmental laws. The Seller and the Buyer agree that they
will attempt in good faith to promptly resolve any dispute
pertaining to any PCB Environmental Activity and the
operations of the provisions of this Section 6(n), and
failing any such resolution, the provisions of Section 8(j)
shall apply.
5. Section 8(b)(ii) of the Stock Purchase Agreement,
entitled "Seller - Monetary Liability Limitations," is
hereby amended as follows:
(a) by deleting the phrase "made in Section 4
hereof" appearing in the third line thereof and
substituting therefor the phrase "made in Section 4
hereof (other than those contained in Section
4(r)(xi))" in its place and stead; and
(b) by deleting the amount of "$2,600,000"
appearing in the ninth line thereof and substituting
therefor "$3,200,000" in its place and stead.
6. Notwithstanding that the Parties have executed and
delivered to each other all of the agreements, documents and
instruments contemplated by the provisions of Section 7 of the
Stock Purchase Agreement, which are each dated October 10, 2000
(collectively, the "Closing Documents"), the Parties expressly
mutually acknowledge and agree that (x) the Closing Date is
October 11, 2000, (y) for all purposes under the Stock Purchase
Agreement and each Closing Document, each such Closing Document
shall be deemed to be dated October 11, 2000 and (z) the Parties
shall execute and deliver to each other such further instruments
and shall take such further actions as any of them may request to
further evidence that the Closing occurred on October 11, 2000.
7. All of the other terms and provisions of the Stock
Purchase Agreement, except as hereinabove amended by the terms of
this Amendment, shall remain in full force and effect.
8. This Amendment shall be effective as of the date first
above written.
9. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered will
be deemed an original, and such counterparts together will
constitute one instrument.
IN WITNESS WHEREOF, the Parties have entered into this
Amendment on the day and year first above written.
BUYER:
MINI CROWN FUNDING CORP.
By:
Name:
Title:
PARENT:
SOVEREIGN SPECIALTY CHEMICALS,
INC.
By:
Name:
Title:
IMPERIAL:
IMPERIAL ADHESIVES, INC.
By:
Name:
Title:
SELLER:
NS GROUP, INC.
By:
Name:
Title:
