FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT
Exhibit
2.1
FIRST
AMENDMENT TO
THIS FIRST AMENDMENT TO ASSET
PURCHASE AGREEMENT (this “Amendment”), dated as
of the 29th day of January, 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 (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. Exhibit
A.
Exhibit A
to the Agreement is hereby amended and restated in its entirety, as set forth in
Schedule A
attached hereto.
3. Section
6.5(c).
Section 6.5(c) of the Agreement is
hereby deleted and replaced in its entirety as follows:
(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 by
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 3,
2009.
4. Section
6.15.
Section 6.15 of the Agreement is hereby
deleted and replaced in its entirety as follows:
6.15 Expenses. Within
one day after the Bidding Procedures Order is entered, Sellers shall pay (in
cash) to or as directed by Purchasers (a) $478,440 in respect of unpaid
Purchaser Expenses that accrued prior to the Commencement Date (the “Expense True-Up”),
and (b) an Expense Deposit of $1,000,000.
5. Sections 8.1(i) through
(m).
Sections 8.1(i) through (m) of the
Agreement are hereby deleted and replaced in their entirety as
follows:
(i) by Purchasers as
a result of (A) the failure of the Bankruptcy Court to have entered an order
approving the Bidding Procedures Order by no later than January 20, 2009 (or
such later date as the Purchasers may determine in their sole discretion), or
(B) following the entry of the Bidding Procedures Order but prior to the entry
of the Sale Order, the Bidding Procedures Order ceases to be in full force and
effect, or is revoked, rescinded, vacated, materially modified, reversed or
stayed or otherwise rendered ineffective by a court of competent
jurisdiction;
(j) by
Purchasers as a result of the failure of Sellers to require that Bids be due by
no later than March 17, 2009 (or such later date as the Purchasers may determine
in their sole discretion);
(k) by
Purchasers as a result of the failure of the Sellers to have held and closed the
Auction by no later than March 19, 2009 (or such later date as the Purchasers
may determine in their sole discretion);
(l) by
Purchasers as a result of (A) the failure of the Bankruptcy Court to have
entered an order approving the Sale Order by no later than March 23, 2009 (or
such later date as the Purchasers may determine in their sole discretion), or
(B) following the entry of the order approving the Sale Order, the Sale Order
ceases to be in full force and effect, or is revoked, rescinded, vacated,
materially modified, reversed or stayed or otherwise rendered ineffective by a
court of competent jurisdiction;
(m) by
Purchasers on any day after April 3, 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
6. Effective Time of
Amendments.
The amendments set forth herein reflect
the agreements among the parties reached on January 20, 2009, and, as such,
shall be effective as of January 20, 2009.
7. No Other
Amendments.
Except as specifically amended hereby,
the terms of the Agreement shall remain in full force and effect.
8. 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.
9. 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/ Jordan X. Xxxxx
Name:
Jordan X. Xxxxx
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
DELMARVA
PROPERTIES, INC.
By: /s/ X. X. Xxxxxx Xx.
Name:
X. X. Xxxxxx Xx.
Title:
Vice President
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
CHESAPEAKE
PHARMACEUTICAL PACKAGING COMPANY INC.
By: /s/ X. X. Xxxxxx Xx.
Name:
X. X. Xxxxxx Xx.
Title:
Vice President
CHESAPEAKE
INTERNATIONAL HOLDING COMPANY
By: /s/ X. X. Xxxxxx Xx.
Name:
X. X. Xxxxxx Xx.
Title:
Vice President
CHESAPEAKE
PRINTING AND PACKAGING COMPANY
By: /s/ X. X. Xxxxxx Xx.
Name:
X. X. Xxxxxx Xx.
Title:
Vice President
SHEFFIELD,
INC.
By: /s/ X. X. Xxxxxx Xx.
Name:
X. X. Xxxxxx Xx.
Title: President
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
Exhibit
A
Form
of Bidding Procedures Order
See
attached.
