THIRD AMENDMENT TO ASSET PURCHASE AGREEMENT
Exhibit
2.1
THIRD
AMENDMENT TO
THIS THIRD AMENDMENT TO ASSET
PURCHASE AGREEMENT (this “Amendment”),
effective as of the 3rd day of
April, 2009, by and among Baltimore US Inc., a Delaware corporation (“U.S. Purchaser”),
Baltimore Acquisition (Cayman Islands) Limited, an exempted company incorporated
in the Cayman Islands (“Foreign Purchaser”,
together with the U.S. Purchaser, the “Purchasers”),
Chesapeake Corporation, a Virginia corporation (the “Company”), and the
U.S. Operating Subsidiaries (as defined in the Agreement, and together with the
Company, the “Sellers”), recites
and provides as follows:
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RECITALS
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WHEREAS, the Sellers and the
Purchasers are parties to that certain Asset Purchase Agreement, dated as of
December 29, 2008, as amended by the First Amendment to Asset Purchase
Agreement, dated as of January 29, 2009, and the Second Amendment to Asset
Purchase Agreement, dated as of March 22, 2009 (as amended, the “Agreement”);
and
WHEREAS, the Sellers and the
Purchasers desire to amend the terms of the Agreement as set forth
herein.
NOW, THEREFORE, in
consideration of the mutual covenants, agreements and warranties herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
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AGREEMENT
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Capitalized
terms used herein and not otherwise defined shall have the meaning given to such
terms in the Agreement.
2. Section
6.5(c).
Section 6.5(c) of the Agreement is
hereby deleted and replaced in its entirety as follows:
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(c) Sellers
shall use their commercially reasonable efforts to: (i) obtain entry of
the Bidding Procedures Order at the Bidding Procedures Hearing and, in any
case, no later than January 20, 2009, (ii) ensure that Bids are due no
later than March 17, 2009, (iii) ensure that the Auction (to the extent
required by the Bankruptcy Court), during which Sellers will solicit
qualified bids (“Qualified Bids”) from other prospective purchasers
(collectively, “Qualified Bidders”) for the sale of all or substantially
all of the Acquired Assets in accordance with the procedures set forth in
the Bidding Procedures Order, shall be held and closed no later than March
19, 2009, (iv) obtain entry of the Sale Order no later than March 23, 2009
and (v) consummate the Closing as soon as practicable after the approval
of the Sale Order and no later than April 30,
2009.
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3. Section
8.1(m).
Section
8.1(m) of the Agreement is hereby deleted and replaced in its entirety as
follows:.
(m) by
Purchasers on any day after April 30, 2009, if the Closing shall not have been
consummated by such date (or by such later date as shall be mutually agreed to
by Purchasers and Sellers in writing), unless the Closing has not occurred due
to a material failure of Purchasers to perform or observe their respective
agreements as set forth in this Agreement required to be performed on or before
the Closing Date; provided that if the sole reason Closing shall not have
occurred is the failure to obtain all required approvals under Section 7.1(a),
then the date on which Purchasers may terminate this Agreement pursuant to this
Section 8.1(m) shall be extended by the lesser of 30 days or two business days
after such approvals are obtained; and
4. No Other
Amendments.
Except as specifically amended hereby,
the terms of the Agreement shall remain in full force and effect.
5. Governing
Law.
This Amendment shall be governed by and
construed in accordance with the Laws of the State of New York (regardless of
the Laws that might otherwise govern under applicable New York principles of
conflicts of Law) as to all matters, including matters of validity,
construction, effect, performance and remedies.
6. Counterparts and
Execution.
This Amendment may be executed
simultaneously in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same
instrument. Any counterpart may be executed by facsimile and such
facsimile shall be deemed an original.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
and delivered on the date first above written.
PURCHASERS:
BALTIMORE
US INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
III
Name:
Xxxxxx X. Xxxxxxxxx III
Its: Co-President
BALTIMORE
ACQUISITION (CAYMAN ISLANDS) LIMITED
By: /s/ Xxxxxxx X'Xxxxxxx
Name:
Xxxxxxx X'Xxxxxxx
Its: Director
SELLERS:
CHESAPEAKE
CORPORATION
By: /s/ Xxxxxx X. Xxxxx
Name:
Xxxxxx X. Xxxxx
Title:
President & Chief Executive Officer
CHESAPEAKE
DISPLAY AND PACKAGING COMPANY
By: /s/ X. X. Xxxxxx Xx.
Name:
X. X. Xxxxxx Xx.
Title:
Secretary
CHESAPEAKE
FOREST PRODUCTS COMPANY, LLC
By: /s/ X. X. Xxxxxx Xx.
Name:
X. X. Xxxxxx Xx.
Title:
Vice President and Secretary
DELMARVA
PROPERTIES, INC.
By: /s/ X. X. Xxxxxx Xx.
Name:
X. X. Xxxxxx Xx.
Title:
Vice President and Secretary
XXXX ST.
COMPANY
By: /s/ Xxxxxxx Xxxxxxxx
Name:
Xxxxxxx Xxxxxxxx
Title: Vice
President
STONEHOUSE
INC.
By: /s/ X. X. Xxxxxx Xx.
Name:
X. X. Xxxxxx Xx.
Title:
Vice President and Secretary
CHESAPEAKE
PHARMACEUTICAL PACKAGING COMPANY INC.
By: /s/ X. X. Xxxxxx Xx.
Name:
X. X. Xxxxxx Xx.
Title:
Vice President and Secretary
CHESAPEAKE
INTERNATIONAL HOLDING COMPANY
By: /s/ X. X. Xxxxxx Xx.
Name:
X. X. Xxxxxx Xx.
Title:
Vice President and Secretary
CHESAPEAKE
PRINTING AND PACKAGING COMPANY
By: /s/ X. X. Xxxxxx Xx.
Name:
X. X. Xxxxxx Xx.
Title:
Vice President and Secretary
SHEFFIELD,
INC.
By: /s/ J. Xxxxxxxxxxx
Xxxxxxxx
Name:
J. Xxxxxxxxxxx Xxxxxxxx
Title: Secretary
CHESAPEAKE
ASSETS COMPANY
By: /s/ X. X. Xxxxxx Xx.
Name:
X. X. Xxxxxx Xx.
Title: President
CHESAPEAKE
RECYCLING COMPANY
By: /s/ X. X. Xxxxxx Xx.
Name:
X. X. Xxxxxx Xx.
Title: President
CHESAPEAKE
CORPORATION (A WISCONSIN CORPORATION)
By: /s/ X. X. Xxxxxx Xx.
Name:
X. X. Xxxxxx Xx.
Title: President
CHESAPEAKE
CORPORATION (A MASSACHUSETTS CORPORATION)
By: /s/ X. X. Xxxxxx Xx.
Name:
X. X. Xxxxxx Xx.
Title: President
CHESAPEAKE
CORPORATION (A DISTRICT OF COLUMBIA CORPORATION)
By: /s/ X. X. Xxxxxx Xx.
Name:
X. X. Xxxxxx Xx.
Title: President
CHESAPEAKE
CORPORATION (AN ILLINOIS CORPORATION)
By: /s/ X. X. Xxxxxx Xx.
Name:
X. X. Xxxxxx Xx.
Title: President
CHESAPEAKE
CORPORATION (A LOUISIANA CORPORATION)
By: /s/ X. X. Xxxxxx Xx.
Name:
X. X. Xxxxxx Xx.
Title: President
THE
CHESAPEAKE CORPORATION OF VIRGINIA
By: /s/ X. X. Xxxxxx Xx.
Name:
X. X. Xxxxxx Xx.
Title: President
