EXHIBIT 2(b)
AMENDMENT TO GOVERNANCE AGREEMENT
AMENDMENT NO. 1, dated as of October 11, 1996, to the GOVERNANCE
AGREEMENT, dated as of June 20, 1996 (the "AGREEMENT"), between XXXXXX, INC., a
New Jersey corporation ("XXXXXX"), and AEP INDUSTRIES INC., a Delaware
corporation (the "COMPANY").
W I T N E S S E T H :
WHEREAS, in connection with the purchase by the Company of Xxxxxx'x
Global Packaging Business, Xxxxxx and the Company have agreed that the Agreement
be amended as set forth below.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants of the parties hereto, it is hereby agreed as follows:
Section 1. DEFINED TERMS. All capitalized terms used herein and not
otherwise defined shall have the meanings given them in the Agreement.
Section 2. AMENDMENT AND RESTATEMENT OF SECTION 4.6 OF THE AGREEMENT.
Section 4.6 of the Agreement is hereby amended and restated to read in its
entirety as follows:
SECTION 4.6. CERTIFICATE OF INCORPORATION AND BY-LAWS. The
Company and Xxxxxx shall take or cause to be taken all lawful action
necessary to ensure at all times that the Company's Certificate of
Incorporation and By-Laws are not, at any time, inconsistent with the
provisions of this Agreement. In furtherance of the foregoing, (i) at its
first annual stockholders meeting following the Closing Date, the Company
agrees to submit to its stockholders, at a duly held meeting of
stockholders or pursuant to a written consent of stockholders, certain
amendments to the Company's Certificate of Incorporation substantially in
the Form of Exhibit B hereto, and (ii) as soon as practicable following the
Closing Date, the Company's Board of Directors will take such action as is
necessary to adopt certain amendments to the Company's By-Laws
substantially in the Form of Exhibit C hereto.
Section 3. LIMITATION OF AMENDMENT. Except as expressly provided
herein, the Agreement shall continue to be, and shall remain, in full force and
effect. Except as expressly provided herein, this Amendment shall not be deemed
to be a waiver of, or consent to, or a modification or amendment of, any other
term or condition of the Agreement.
Section 4. SEVERABILITY. If any provision of this Amendment shall be
declared by any court of competent jurisdiction to be illegal, void or
unenforceable, all other provisions of this Amendment shall not be affected and
shall remain in full force and effect.
Section 5. COUNTERPARTS. This Amendment may be executed in any
number of counterparts, each of which shall be deemed to be an original and all
of which together shall be deemed to be one and the same instrument.
Section 6. APPLICABLE LAW. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York without regard
to conflicts of laws principles thereof.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Amendment as of the date first above written.
XXXXXX, INC.
By:
------------------------------------
Name:
Title:
AEP INDUSTRIES INC.
By:
------------------------------------
Name:
Title:
-2-
