EXHIBIT 2.5
THIRD AMENDMENT TO
ASSET PURCHASE AGREEMENT
This Third Amendment to Asset Purchase Agreement (this
"Agreement") is dated this 20th day of May 2002 by and between Pliant
Corporation, a Utah corporation ("Parent"), and Pliant Solutions Corporation, a
Utah corporation and wholly-owned subsidiary of Parent ("Buyer"), on the one
hand, and Decora Industries, Inc., a Delaware corporation, and its operating
subsidiary, Decora, Incorporated, a Delaware corporation (collectively,
"Seller"), on the other hand.
RECITALS
A. Reference is hereby made to that certain Asset Purchase
Agreement dated as of December 31, 2001, by and between Parent, Buyer and
Seller, as amended (the "Asset Purchase Agreement");
B. The parties to the Asset Purchase Agreement wish to
further amend and restate certain provisions of the Asset Purchase Agreement;
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. Amendments.
1.1 Assumed Contracts. Schedule 1.1(b)(ii) to the Asset
Purchase Agreement is amended by deleting such Schedule and inserting in lieu
thereof Schedule 1.1(b)(ii) hereto.
1.2 Intangible Property. Schedule 1.1(e) to the Asset
Purchase Agreement is hereby amended by deleting such Schedule and inserting in
lieu thereof Schedule 1.1(e) hereto.
1.3 DIP Loan Amount. Schedule 2.1 to the Asset Purchase
Agreement is hereby amended by deleting such Schedule and inserting in lieu
thereof Schedule 2.1 attached hereto.
1.4 Post-Petition Accounts Payable. Schedule 2.2(a) to the
Asset Purchase Agreement is hereby amended by deleting such Schedule and
inserting in lieu thereof Schedule 2.2(a) attached hereto.
1.5 Postpetition Expense Payment. Schedule 2.4 attached
hereto sets forth the Postpetition Expense Payment.
1.6 Transferred Employees. Schedule 9.1(a) to the Asset
Purchase Agreement is hereby amended by deleting such Schedule and inserting in
lieu thereof Schedule 9.1(a) attached hereto.
1.7 Article 1 of the Asset Purchase Agreement is hereby
amended by adding the following new Section 1.4:
"1.4 Assumption and Assignment Motion. Promptly after the Closing
Date, the Seller shall file with the Bankruptcy Court, and seek entry of
an order granting, a motion to assume and assign to the Buyer any
Assumed Contract that was not assumed and assigned under the Approval
Order (as defined below), including, without limitation, (i) the
Plastico y Derivados C.A. license agreement, (ii) the Sinteticos S.A.
license, and (iii) the Vulcan Material Plastico S.A. license."
1.8 Section 1.1 of the Asset Purchase Agreement is hereby
amended by adding the following to the last sentence of Section 1.1(b):
"Notwithstanding the foregoing, the parties acknowledge and agree
that Buyer shall have the right to amend Schedule 1.1(b)(ii) to exclude
the License Agreement between Utilitech/Decora and Xxxx X. Xxxxx dated
August 9, 1991, from and after the Closing Date for a period of time not
to exceed twenty (20) days, whereupon such item shall not be an Assumed
Contract."
SECTION 2. Miscellaneous.
2.1 Defined Terms. All capitalized and undefined terms used
herein shall have the meanings ascribed to such terms in the Asset Purchase
Agreement
2.2 Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other party.
2.3 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without reference
to the choice of law principles thereof.
2.4 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that the Buyer, so long as the Buyer
remains liable for its obligations under the Asset Purchase Agreement, may
transfer any of its rights or obligations hereunder to any of its affiliates.
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2.5 Confirmation of the Asset Purchase Agreement. Except as
expressly modified hereby, the Asset Purchase Agreement shall remain in full
force and effect and is hereby ratified and confirmed in all respects.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Third
Amendment to Asset Purchase Agreement as of the day and year first above
written.
PLIANT CORPORATION
/s/
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By: Xxxx X. Xxxxx
Title: President
PLIANT SOLUTIONS CORPORATION
/s/
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By: Xxxx X. Xxxxx
Title: President
DECORA INDUSTRIES, INC.
/s/
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By: Xxxxxx X. Xxxxxx
Title: President and Chief Executive Officer
DECORA, INCORPORATED
/s/
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By: Xxxxxx X. Xxxxxx
Title: President and Chief Executive Officer
[Signature Page to Third Amendment to Asset Purchase Agreement]
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