Exhibit 2(d)
ASSET PURCHASE AGREEMENT
AMENDMENT NO. 3
THIS AMENDMENT NO. 3 (this "Amendment") to the ASSET PURCHASE AGREEMENT,
dated as of January l8, 2002 (the "Asset Purchase Agreement"), by and among
Spinnaker Industries, Inc., Spinnaker Coating, Inc. Spinnaker Coating-Maine,
Inc. (collectively, the "Sellers") and SP Acquisition, LLC (the "Buyer") is made
as of March 5,2002, by and among the Sellers and the Buyer. All capitalized
terms used but not defined herein shall have the meanings ascribed to such terms
in the Asset Purchase Agreement.
WHEREAS, Sellers and Buyer wish to modify the Asset Purchase Agreement as
set forth below;
NOW, THEREFORE, the Asset Purchase Agreement is hereby amended as follows:
1. Section 2(b). Section 2(b) is hereby amended to add the following
subsection (xii) to the list of Excluded Assets:
(xii) Preference and avoidance actions or claims under Sections 544, 547 or
548 of the Bankruptcy Code.
2. Section 3(b). Section 3(b) is hereby deleted and amended to read in its
entirety as follows:
(b) Closing Payments. At the Closing, pursuant to the terms of the Escrow
Agreement, in accordance with instructions of Buyer, the Escrow Agent shall pay
(the "Closing Cash Payment") (i) to Sellers, by wire transfer to such bank
account(s) designated in writing by Sellers, an amount equal to the Deposit
minus the Holdback Amount, (ii) to Buyer, by wire transfer to such bank
account(s) designated in writing by Buyer, all earnings on the Deposit and (iii)
to the Post-Closing Escrow Agent, in accordance with the terms of the Escrow
Agreement substantially in the form attached hereto as Exhibit C, with such
changes as shall be required by the Escrow Agent (the "Post-Closing Escrow
Agreement"), the Holdback Amount. If this Agreement is terminated after payment
of the Deposit for any reason whatsoever, the Deposit and any interest earned
thereon (minus $1,250,000 in the event that Sellers are entitled to liquidated
damages as described in Section 3(e)) shall be returned to Buyer within one (1)
Business Day of demand by Buyer to the Escrow Agent.
3. Section 3(d). Section 3(d) is hereby deleted in its entirety.
4. Schedule 3(d)(i). Schedule 3(d)(i) is hereby deleted in its entirety.
5. Section 3(e). Each reference to "$500,000" in Section 3(e) is hereby
amended to read "$1,250,000."
6. Section 9(a). The second sentence of Section 9(a) is hereby deleted in
its entirety.
7. Sections 12(a)(vi) and 12(a)(vii). Sections 12(a)(vi) and 12(a)(vii) are
hereby deleted in their entirety.
8. Return to Buyer of $626,000. Sellers and Buyer shall execute and deliver
to the Escrow Agent immediately after the execution and delivery of this
Amendment an irrevocable instruction to the Escrow Agent in the form attached
hereto as Exhibit 1 directing the Escrow Agent to return $626,000 in immediately
available funds to Buyer.
9. Deposit. The term "Deposit" as used in the Asset Purchase Agreement
shall hereby mean an amount equal to (i) the sum the Initial Deposit and the
Subsequent Deposit reduced by (ii) the amount distributed to Buyer pursuant to
Section 8 of this Amendment.
10. Ratification of the Asset Purchase Agreement. Except as otherwise
expressly provided herein, all of the terms and conditions of the Asset Purchase
Agreement are ratified and shall remain unchanged and continue in full force and
effect.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, this Amendment has been executed as of the date first
above written.
SELLERS:
SPINNAKER INDUSTRIES, INC.
BY: /s/ XXXXX X. XXXXXXXX, XX.
------------------------
Name: XXXXX X. XXXXXXXX, XX.
Title: Chairman
SPINNAKER COATING, INC.
BY: /s/ XXXXX X. XXXXXXXX, XX.
------------------------
Name: XXXXX X. XXXXXXXX, XX.
Title: Chairman
SPINNAKER COATING-MAINE, INC.
BY: /s/ XXXXX X. XXXXXXXX, XX.
------------------------
Name: XXXXX X. XXXXXXXX, XX.
Title: Chairman
BUYER:
SP ACQUISITION, LLC
BY:
------------------------
Name:
Title:
IN WITNESS WHEREOF, this Amendment has been executed as of the date first
above written.
SELLERS:
SPINNAKER INDUSTRIES, INC.
By:
----------------------
Name:
Title:
SPINNAKER COATING, INC.
By:
----------------------
Name:
Title:
SPINNAKER COATING-MAINE, INC.
By:
----------------------
Name:
Title:
BUYER:
SP ACQUISITION, LLC
By: /s/ XXXXXXX X. XXXXX
----------------------
Name: XXXXXXX X. XXXXX
Title: President
Exhibit 1
Ms. Laurel Xxxxxx-Xxxxxxxxx
State Street Bank and Trust Company
X/x Xxxxx Xxxxxx Xxxx and Trust Company of Connecticut, X.X.
Xxxxxxx Square
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Dear Ms. Xxxxxx-Xxxxxxxxx:
Reference is hereby made to that Escrow Agreement, dated as of January
22,2002 (the "Escrow Agreement"), by and among Spinnaker Industries, Inc.,
Spinnaker Coating, Inc. Spinnaker Coating-Maine, Inc. (collectively, the
"Sellers"), SP Acquisition, LLC (the "Buyer"), and State Street Bank and Trust
Company (the "Escrow Agent"). Capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to such terms in the Escrow Agreement.
Sellers and Buyer hereby irrevocably instruct Escrow Agent to immediately
deliver to Buyer, by wire transfer of immediately available funds to an account
designated by Buyer, a portion of the Escrowed Amount equal to $626,000.
Very truly yours,
SPINNAKER INDUSTRIES, INC.
BY:
---------------------------
Name:
Title:
SPINNAKER COATING, INC.
BY:
---------------------------
Name:
Title:
SPINNAKER COATING-MAINE, INC.
BY:
---------------------------
Name:
Title:
SP ACQUISITION, LLC
BY:
---------------------------
Name:
Title:
ESCROW AGREEMENT
AMENDMENT NO. 1
THIS AMENDMENT NO. 1 (this "Amendment") to the ESCROW AGREEMENT, dated as
of January 22,2002 (the "Escrow Agreement"), by and among Spinnaker Industries,
Inc., Spinnaker Coating, Inc. Spinnaker Coating-Maine, Inc. (collectively, the
"Sellers"), SP Acquisition, LLC (the "Buyer"), and State Street Bank and Trust
Company (the "Escrow Agent") is made as of March 5, 2002, by and among the
Sellers and the Buyer. All capitalized terms used but not defined herein shall
have the meanings ascribed to such terms in the Escrow Agreement.
WHEREAS, the Sellers, the Buyer and the Escrow Agent wish to modify the
Escrow Agreement to amend provisions related to the distribution of the Escrowed
Amount in accordance with amendments made to the Purchase Agreement;
NOW, THEREFORE, the Escrow Agreement is hereby amended as follows:
1. Section 3. Section 3 is hereby deleted in its entirety.
2. Section 4(b). Section 4(b) is hereby deleted and amended to read in its
entirety as follows:
(b) If Escrow Agent receives written notice from Buyer and Sellers that the
closing (the "Closing") under the Purchase Agreement is consummated, upon
written instructions from Buyer, Escrow Agent shall (i) transfer Five Hundred
Thousand Dollars ($500,000) of the Escrowed Amount into the escrow account to be
administered by it as escrow agent pursuant to the escrow agreement to be
entered into at the Closing among the parties hereto, (ii) deliver an amount
equal to the earnings on the Escrowed Amount to Buyer and (iii) deliver the
remainder of the Escrowed Amount to Sellers at the Closing by certified or bank
cashier's check or by wire transfer pursuant to the direction of Sellers.
3. Sections 4(c) and 4(d). Each reference to "$500,000" or "Five Hundred
Thousand Dollars" in Section 4(c) and Section 4(d) is hereby amended to read
"$1,250,000" and "One Million Two Hundred Fifty Thousand Dollars," respectively.
4. Escrowed Amount. The term "Escrowed Amount" as used in the Escrow
Agreement shall hereby mean an amount equal to (i) the sum of(x) the Initial
Escrowed Amount and the Subsequent Escrowed Amount minus (ii) $626,000.
5. Ratification of the Escrow Agreement. Except as otherwise expressly
provided herein, all of the terms and conditions of the Escrow Agreement are
ratified and shall remain unchanged and continue in full force and effect.
IN WITNESS WHEREOF, this Amendment has been executed as of the date first
above written.
SELLERS:
SPINNAKER INDUSTRIES, INC.
BY: /s/ XXXXX X. XXXXXXXX, XX.
------------------------
Name: XXXXX X. XXXXXXXX, XX.
Title: Chairman
SPINNAKER COATING, INC.
BY: /s/ XXXXX X. XXXXXXXX, XX.
------------------------
Name: XXXXX X. XXXXXXXX, XX.
Title: Chairman
SPINNAKER COATING-MAINE, INC.
BY: /s/ XXXXX X. XXXXXXXX, XX.
------------------------
Name: XXXXX X. XXXXXXXX, XX.
Title: Chairman
BUYER:
SP ACQUISITION, LLC
BY: /s/ XXXXXXX X. XXXXX
------------------------
Name: XXXXXXX X. XXXXX
Title: President
ESCROW AGENT
STATE STREET BANK AND TRUST
COMPANY, AS ESCROW AGENT
BY: /s/ LAUREL XXXXXX-XXXXXXXXX
------------------------------
Name: LAUREL XXXXXX-XXXXXXXXX
Title: Assistant Vice
President
March 6,2002
Ms. Laurel Xxxxxx-Xxxxxxxxx
State Street Bank and Trust Company
X/x Xxxxx Xxxxxx Xxxx and Trust Company of Connecticut, X.X.
Xxxxxxx Square
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Dear Ms. Xxxxxx-Xxxxxxxxx:
Reference is hereby made to that Escrow Agreement, dated as of January 22,
2002 (the "Escrow Agreement"), by and among Spinnaker Industries, Inc.,
Spinnaker Coating, Inc. Spinnaker Coating-Maine, Inc. (collectively, the
"Sellers"), SP Acquisition, LLC (the "Buyer"), and State Street Bank and Trust
Company (the "Escrow Agent"). Capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to such terms in the Escrow Agreement.
Sellers and Buyer hereby irrevocably instruct Escrow Agent to immediately
deliver to Buyer, by wire transfer of immediately available funds to an account
designated by Buyer, a portion of the Escrowed Amount equal to $626,000.
Very truly yours,
SPINNAKER INDUSTRIES, INC.
BY: /s/ XXXXX X. XXXXXXXX, XX.
------------------------
Name: XXXXX X. XXXXXXXX, XX.
Title: Chairman
SPINNAKER COATING, INC.
BY: /s/ XXXXX X. XXXXXXXX, XX.
------------------------
Name: XXXXX X. XXXXXXXX, XX.
Title: Chairman
SPINNAKER COATING-MAINE, INC.
BY: /s/ Xxxxx X. Xxxxxxxx, Xx.
------------------------
Name: Xxxxx X. Xxxxxxxx, Xx.
Title: Chairman
SP ACQUISITION, LLC
BY: /s/ Xxxxxxx X. Xxxxx
------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
