SECOND AMENDMENT TO AGREEMENT AND PLAN OF MERGER
SECOND AMENDMENT (this "SECOND AMENDMENT"), dated as of July 22,
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 by the First Amendment, dated
as of July 17, 2002 (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. The definition of "Transaction Costs" in Section 3.1 is
hereby amended and restated to state in its entirety as follows:
"TRANSACTION COSTS" means all the out-of-pocket costs and
expenses of the Sellers and any Corporation Entity relating to
the merger and the transactions contemplated hereby that are paid
or payable on the Closing Date, which categories of items are set
forth on Schedule 3.1(c) hereto, payable by any Corporation
Entity but specifically excluding any costs and expenses included
in the definition of "Funded Obligations" LESS $426,388.74. None
of the items set forth on Schedule 3.1(c) shall be included on
the Closing Working Capital Statement.
3. The first sentence Section 3.7(a) is hereby amended by
replacing the words "as of the Closing Date" with the following:
"as of the end of the second shift that began on July 20, 2002
for each of the Corporation's operating facilities in accordance
with the Corporation's current end of month cut-off procedures".
4. 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 Second 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 Second Amendment.
5. (a) This Second 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 Second Amendment
for any other purpose.
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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:
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:
SELLERS:
By: ______________________________
Xxx X. Boots
By: ______________________________
Xxxxx X. Xxxxxxxxxx
THE XXXXX X. XXXXXXXXXX CHARITABLE REMAINDER
UNITRUST
By: ______________________________
Xxxxx X. Xxxxxxxxxx, as Trustee
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:
