AMENDMENT NO. 1 TO
SECOND AMENDED AND RESTATED ASSET PURCHASE AGREEMENT
AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED ASSET PURCHASE
AGREEMENT (this "Amendment No. 1"), dated as of July 31, 2002, is
entered into by and among OEP Imaging Corporation, a Delaware corporation
(the "Purchaser"), Polaroid Corporation, a Delaware corporation
("Polaroid"), and its Subsidiaries listed on the signature pages of this
Amendment No. 1 (collectively, together with Polaroid, the "Sellers").
WHEREAS, on October 12, 2001 (the "Filing Date"), the Sellers
filed voluntary bankruptcy petitions (the "Petitions") pursuant to Chapter
11 of Title 11 of the United States Code (the "Bankruptcy Code") before the
United States Bankruptcy Court for the District of Delaware (the
"Bankruptcy Court"), jointly administered as Case No. 01-10864 (PJW)
(Bankr. D. Del.) (the "Case");
WHEREAS, the Sellers and the Purchaser are parties to that certain
Second Amended and Restated Asset Purchase Agreement, dated as of July 3,
2002 (the "Asset Purchase Agreement"), pursuant to which the Sellers agreed
to sell to the Purchaser and the Purchaser agreed to purchase from the
Sellers, (i) all of the outstanding capital stock of the Subsidiaries of
Polaroid that are incorporated or organized outside of the United States
which are directly owned by a Seller and identified on the list attached
thereto as Exhibit A (the "Acquired Subsidiaries") and (ii) all of the
assets, rights and properties of the Sellers relating to the Business not
conducted by the Acquired Subsidiaries and, in connection with such
purchase and sale, the Purchaser agreed to assume certain obligations and
liabilities of Sellers, all on the terms and subject to the conditions set
forth in the Asset Purchase Agreement and in accordance with Sections 363
and 365 of the Bankruptcy Code (the "Contemplated Transactions"); and
WHEREAS, the Sellers and the Purchaser desire to amend the Asset
Purchase Agreement as set forth herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements and covenants hereinafter set forth, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
I. Defined Terms. Capitalized terms used herein and not otherwise defined
shall have the meanings ascribed to them under the Amended and Restated
Asset Purchase Agreement.
II. Amendments.
A. Amendment to Section 2.01(d). Section 2.01(d) of the Asset Purchase
Agreement is hereby amended by inserting the following phrase at the end of
Section 2.01(d):
"and except the amount that Polaroid Graphics Imaging LLC
("Polaroid Graphics") owes to Polaroid for the purchase of dry tech film as
specified under that certain letter agreement, dated July 28, 2000, among
Polaroid Graphics, Polaroid and Andlinger Capital VIII LLC (the "PGI Note")
and the accounts receivable of Polaroid Graphics which arose prior to the
Filing Date owed to the Sellers (the "Polaroid Graphics Pre-Petition
Receivable").
B. Amendment to Section 2.02. Section 2.02 of the Amended and Restated
Asset Purchase Agreement is hereby amended by deleting the word "and" at
the end of paragraph (i), deleting the period at the end of paragraph (j)
and inserting in lieu thereof "; and", and inserting the following new
paragraph (k) at the end of Section 2.02:
"(k) the PGI Note and the Polaroid Graphics Pre-Petition Receivable."
C. Amendment to Section 6.13. Notwithstanding anything to the contrary
contained in the Amended and Restated Asset Purchase Agreement (including
Section 6.13 thereof), the Sellers and the Purchaser agree that the Assumed
Contracts shall not include (i) the Lease by and between 000 Xxxxxxxx Xxxxx
LLC, a Delaware limited liability company, and Polaroid Memorial Drive LLC,
a Massachusetts limited liability company, dated December 24, 1997 and (ii)
the Sublease Agreement by and between Computervision Corporation, a
Delaware corporation, and Polaroid Corporation, dated August 24, 1994.
III. General Provisions.
A. Amended and Restated Asset Purchase Agreement. Except as modified
by this Amendment No. 1, the terms of the Asset Purchase Agreement shall
remain in full force and effect.
B. Descriptive Headings. The headings contained in this Amendment No.
1 are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Amendment No. 1.
C. Governing Law. This Amendment No. 1 shall be governed by and
construed in accordance with the laws of the State of Delaware without
giving effect to the rules of conflict of laws of the State of Delaware
that would require application of any other law.
D. Counterparts; Effectiveness. This Amendment No. 1 may be executed
in two or more counterparts, each of which shall be deemed to be an
original but all of which shall constitute one and the same agreement. This
Amendment No. 1 shall become effective when each party hereto shall have
received counterparts thereof signed by all the other parties hereto.
[Signatures on the following page.]
IN WITNESS WHEREOF, the Purchaser and each of the Sellers have
caused this Amendment No. 1 to be executed on their behalf by their
officers thereunto duly authorized, as of the date first above written.
PURCHASER
OEP IMAGING CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
SELLERS
POLAROID CORPORATION POLAROID ASIA PACIFIC
INTERNATIONAL INC
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------- ----------------------------
Name: Xxxxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Financial Officer Title: President
POLAROID ASIA PACIFIC LIMITED POLAROID LATIN AMERICA CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------- -----------------------------
Name: Xxxxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxxx
Title: President Title: Vice President
POLAROID EYEWEAR, INC. POLAROID MALAYSIA LIMITED
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------ -----------------------------
Name: Xxxxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxxx
Title: Treasurer Title: Treasurer
INNER CITY, INC. INTERNATIONAL POLAROID CORPORATION
By: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------- -----------------------------
Name: Xxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxxx
Title: Assistant Secretary Title: Treasurer
MAG-MEDIA LTD. PMC, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------- -----------------------------
Name: Xxxxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxxx
Title: President Title: President
POLAROID PARTNERS, INC. POLINT, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------- -----------------------------
Name: Xxxxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxxx
Title: Treasurer Title: President
PRD CAPITAL, INC. PRD INVESTMENT, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------- -----------------------------
Name: Xxxxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxxx
Title: President Title: President
POLAROID EYEWEAR FAREAST, INC. SUB DEBT PARTNERS CORP.
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------- -----------------------------
Name: Xxxxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxxx
Title: Treasurer Title: President
POLAROID ONLINE SERVICES, INC. POLAROID ID SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------- -----------------------------
Name: Xxxxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxxx
Title: Treasurer Title: President
POLAROID DRY IMAGING, LLC
By: POLAROID PARTNERS, INC.
Manager
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Treasurer
