FIRST AMENDMENT TO EQUITY PURCHASE AGREEMENT
Exhibit 2.1
This FIRST AMENDMENT, dated as of January 27, 2009 (the “First Amendment”), to that
certain Equity Purchase Agreement, dated as of July 1, 2008 (the “Purchase Agreement”) is
entered into by and among XXXXX ACQUISITION COMPANY I, INC., a Delaware corporation
(“Buyer”), GPC HOLDINGS, L.P., a Pennsylvania limited partnership (“GPCH”), XXXXXX
PACKAGING CORPORATION, a Pennsylvania corporation (“GPC”), XXXXXX CAPITAL COMPANY, a
Pennsylvania limited partnership, (“GCC”), XXXXXX ENGINEERING CORPORATION, a Pennsylvania
corporation (“GEC” and, together with GPCH, GCC and GPC, the “Xxxxxx Family
Holders”), BMP/XXXXXX HOLDINGS CORPORATION, a Delaware corporation (“BMP/GHC”),
BCP/XXXXXX HOLDINGS L.L.C., a Delaware limited liability company and
a wholly-owned subsidiary of
BMP/GHC (“BCP LLC”), GPC CAPITAL CORP. II, a Delaware corporation (“IPO
Corp.”), GPC OPCO GP LLC, a Delaware limited liability company (“GPC Opco”), XXXXXX
PACKAGING HOLDINGS COMPANY, a Pennsylvania limited partnership (the “Company”),
HH-HACI, L.P., a Delaware limited partnership (“Founder”), BLACKSTONE CAPITAL PARTNERS III
MERCHANT BANKING FUND L.P., a Delaware limited partnership (“BCP III”), BLACKSTONE OFFSHORE
CAPITAL PARTNERS III L.P., a Cayman Islands exempted limited partnership (“BOCP III”), and
BLACKSTONE FAMILY INVESTMENT PARTNERSHIP III L.P., a Delaware limited partnership (“BFIP
III”) and BCP III, as the Seller Representative (as defined in the Purchase Agreement) pursuant
to Section 6.10 of the Purchase Agreement.
WHEREAS, the parties desire to amend the Purchase Agreement as provided herein.
NOW, THEREFORE, in consideration of the mutual promises herein set forth, and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
agree as follows:
ARTICLE I
AMENDMENT TO PURCHASE AGREEMENT
1.1 Section 3.11. Section 3.11 is hereby deleted in its entirety, is of no
further force or effect, and replaced with the following:
“RESERVED”
1.2 Section 6.1(a). Section 6.1(a) is hereby amended by adding (x) the following
clause:
“(vii) by either the Seller Representative or the Buyer by giving written
notice to the other Person.”
and (y) “, or” at the end of the preceding Section 6.1(a)(vi) (in replacement of the period
currently there).
1.3 Section 6.1(b). Section 6.1(b) is hereby amended by adding the following to the end of
the paragraph:
“provided further that in the event of a termination
pursuant to Section 6.1(a)(i) or 6.1(a)(vii), no party shall have
liability under this agreement except for any intentional or knowing
breaches of obligations provided for in Section 3.1(d), Section 3.5 or
this Article VI.”
1.4 Effect on the Purchase Agreement. The First Amendment shall not constitute a
waiver, amendment or modification of any provision of the Purchase Agreement not expressly referred
to herein. Except as expressly amended or modified herein, the provisions of the Purchase
Agreement are and shall remain in full force and effect and are hereby ratified and confirmed. On
and after the date hereof, each reference in the Purchase Agreement to “this Agreement,” “herein,”
“hereof,” “hereunder” or words of similar import shall mean and be a reference to the Purchase
Agreement as amended hereby. To the extent that a provision of the First Amendment conflicts with
or differs from a provision of the Purchase Agreement, such provision of the First Amendment shall
prevail and govern for all purposes and in all respects. The First Amendment shall be binding upon
and inure to the benefit of the parties and their successors and permitted assigns.
Notwithstanding anything herein or in the Purchase Agreement to the contrary, any and all
provisions in the Purchase Agreement restricting the ability of a party from engaging in actions
that were, before giving effect to this First Amendment, prohibited by Section 3.11 are hereby
deleted and of no further force or effect.
ARTICLE II
MISCELLANEOUS
2.1 Construction. The First Amendment shall be governed by and construed in
accordance with the internal laws of the State of New York.
2.2 Counterparts. This First 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.
2.3 Entire Agreement. This First Amendment together with the Purchase Agreement
(including the Schedules thereto and the documents referred to therein) constitutes the entire
agreement between the parties hereto and supersedes all
prior agreements and understandings, oral and written, between the parties hereto with respect
to the subject matter hereto.
IN WITNESS WHEREOF, the undersigned have executed, or have caused to be executed, the First
Amendment on the date first written above.
BUYER: | ||||||
XXXXX ACQUISITION COMPANY I, INC. | ||||||
By: Name: |
/s/ Xxxxxx X. Xxxxx
|
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Title: | President, Chief Executive Officer and Chief Financial Officer | |||||
COMPANY: | ||||||
XXXXXX PACKAGING HOLDINGS COMPANY |
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By: Name: |
/s/ Xxxx X. Xxxxxxx
|
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Title: | Chief Executive Officer | |||||
GPC CAPITAL CORP. II | ||||||
By: Name: |
/s/ Xxxx X. Xxxxxxx
|
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Title: | President and Chief Executive Officer | |||||
GPC OPCO GP LLC | ||||||
By: Name: |
/s/ Xxxx X. Xxxxxxx
|
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Title: | Chief Executive Officer |
Signature Page to First Amendment to Purchase Agreement
SELLERS: | ||||||
XXXXXX PACKAGING CORPORATION | ||||||
By: Name: |
/s/ Xxxx X. Xxxx III
|
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Title: | Vice President | |||||
GPC HOLDINGS, L.P. | ||||||
By: GPC Investments, LLC, its General Partner | ||||||
By: Name: |
/s/ Xxxx X. Xxxx III
|
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Title: | Vice President | |||||
XXXXXX CAPITAL COMPANY | ||||||
By: Xxxxxx Capital, LLC, its General Partner | ||||||
By: Name: |
/s/ Xxxx X. Xxxx III
|
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Title: | Vice President | |||||
XXXXXX ENGINEERING CORPORATION | ||||||
By: Name: |
/s/ Xxxx X. Xxxx III
|
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Title: | Vice President |
Signature Page to First Amendment to Purchase Agreement
BMP/XXXXXX HOLDINGS CORPORATION | ||||||
By: Name: |
/s/ Xxxxx Xxx
|
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Title: | Senior Managing Director | |||||
BCP/XXXXXX HOLDINGS L.L.C. | ||||||
By: Name: |
/s/ Xxxxx Xxx
|
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Title: | Senior Managing Director |
Signature Page to First Amendment to Purchase Agreement
BLACKSTONE HOLDERS: | ||||||
BLACKSTONE CAPITAL PARTNERS III MERCHANT BANKING FUND L.P. |
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By: Blackstone Management Associates III, LLC, its General Partner |
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By: Name: |
/s/ Xxxxx Xxx
|
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Title: | Senior Managing Director |
Signature Page to First Amendment to Purchase Agreement
BLACKSTONE OFFSHORE CAPITAL PARTNERS III L.P. |
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By: Blackstone Management Associates III, LLC, its General Partner |
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By: Name: |
/s/ Xxxxx Xxx
|
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Title: | Senior Managing Director | |||||
BLACKSTONE FAMILY INVESTMENT PARTNERSHIP III L.P. (only with respect to Sections 3.12, 3.14 and 6.20) |
||||||
By: Blackstone Management Associates III, LLC, its General Partner |
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By: Name: |
/s/ Xxxxx Xxx
|
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Title: | Senior Managing Director |
Signature Page to First Amendment to Purchase Agreement
SELLER REPRESENTATIVE: | ||||||
BLACKSTONE CAPITAL PARTNERS III MERCHANT BANKING FUND L.P. |
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By: Blackstone Management Associates III, LLC, its General Partner |
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By: Name: |
/s/ Xxxxx Xxx
|
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Title: | Senior Managing Director |
Signature Page to First Amendment to Purchase Agreement
FOUNDER: | ||||||
HH-HACI, L.P. | ||||||
By: HH-HACI GP LLC, its General Partner |
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By: Name: |
/s/ Xxxxxx X. Xxxxx
|
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Title: | Authorized Signatory |
Signature Page to First Amendment to Purchase Agreement