Exhibit 2.2
AMENDMENT AGREEMENT
AMENDMENT AGREEMENT (this "Agreement"), dated August 2,
1999 among Fort Xxxxx Corporation, a Virginia corporation ("Fort
Xxxxx"), ACX Technologies, Inc., a Colorado corporation ("ACX")
and Graphic Packaging Corporation ("GPC," and together with ACX,
"Buyer"). Capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to such terms in the
Asset Purchase Agreement among Fort Xxxxx, ACX and GPC, dated as
of April 25, 1999 (the "Asset Purchase Agreement").
WHEREAS, the parties hereto have entered into the Asset
Purchase Agreement, pursuant to which Fort Xxxxx has agreed to
sell, or cause its Subsidiaries to sell, the Assets, and Buyer
has agreed to purchase such Assets, for the consideration set
forth in the Asset Purchase Agreement, and to assume the Assumed
Liabilities, upon the terms and conditions set forth in the Asset
Purchase Agreement;
WHEREAS, Schedule 2.3(a)(v) to the Asset Purchase
Agreement was delivered concurrently with the Asset Purchase
Agreement on April 25, 1999 ("Execution Schedule 2.3(a)(v)");
WHEREAS, the parties hereto have mutually agreed to
revise Execution Schedule 2.3(a)(v) in various respects and have
further agreed that such revised schedule, attached hereto as
Exhibit A ("Closing Schedule 2.3(a)(v)"), shall replace and
supersede in all respects Execution Schedule 2.3(a)(v);
WHEREAS, Schedule 2.3(a)(vii) to the Asset Purchase
Agreement was delivered concurrently with the Asset Purchase
Agreement on April 25, 1999 ("Execution Schedule 2.3(a)(vii)");
WHEREAS, the parties hereto have mutually agreed to
revise Execution Schedule 2.3(a)(vii) in various respects and
have further agreed that such revised schedule, attached hereto
as Exhibit B ("Closing Schedule 2.3(a)(vii)"), shall replace and
supersede in all respects Execution Schedule 2.3(a)(vii);
WHEREAS, Schedule 2.3(b)(iv) to the Asset Purchase
Agreement was delivered concurrently with the Asset Purchase
Agreement on April 25, 1999 ("Execution Schedule 2.3(b)(iv)");
WHEREAS, the parties hereto have mutually agreed to
revise Execution Schedule 2.3(b)(iv) in various respects and have
further agreed that such revised schedule, attached hereto as
Exhibit C ("Closing Schedule 2.3(b)(iv)"), shall replace and
supersede in all respects Execution Schedule 2.3(b)(iv);
WHEREAS, Schedule 5.12 to the Asset Purchase Agreement
was delivered concurrently with the Asset Purchase Agreement on
April 25, 1999 ("Execution Schedule 5.12");
WHEREAS, the parties hereto have mutually agreed to
revise Execution Schedule 5.12 in various respects and have
further agreed that such revised schedule, attached hereto as
Exhibit D ("Closing Schedule 5.12"), shall replace and supersede
in all respects Execution Schedule 5.12;
WHEREAS, Schedule 7.14 to the Asset Purchase Agreement
was delivered concurrently with the Asset Purchase Agreement on
April 25, 1999 ("Execution Schedule 7.14");
WHEREAS, the parties hereto have mutually agreed to
revise Execution Schedule 7.14 in various respects and have
further agreed that such revised schedule, attached hereto as
Exhibit E ("Closing Schedule 7.14"), shall replace and supersede
in all respects Execution Schedule 7.14;
WHEREAS, Schedule 7.16 to the Asset Purchase Agreement
was delivered concurrently with the Asset Purchase Agreement on
April 25, 1999 ("Execution Schedule 7.16");
WHEREAS, the parties hereto have mutually agreed to
revise Execution Schedule 7.16 in various respects and have
further agreed that such revised schedule, attached hereto as
Exhibit F ("Closing Schedule 7.16"), shall replace and supersede
in all respects Execution Schedule 7.16;
WHEREAS, the parties hereto have mutually agreed to
modify Section 2.1(d) of the Asset Purchase Agreement as set
forth below;
WHEREAS, the parties hereto have mutually agreed to
modify Section 2.1(l) of the Asset Purchase Agreement as set
forth below;
WHEREAS, the parties hereto have mutually agreed to
modify the Purchase Price provided for in Section 3.1 of the
Asset Purchase Agreement as set forth below;
WHEREAS, the parties hereto have mutually agreed to
modify Sections 5.12(e) and 5.12(f) of the Asset Purchase
Agreement as set forth below; and
WHEREAS, the parties hereto have mutually agreed to
modify Section 7.5(b) of the Asset Purchase Agreement as set
forth below.
NOW, THEREFORE, in consideration of the foregoing and
the premises, representations, warranties and agreements
contained in the Asset Purchase Agreement, the parties hereto
agree as follows:
FIRST: Closing Schedule 2.3(a)(v), attached hereto
as Exhibit A, shall replace and supersede in all respects
Execution Schedule 2.3(a)(v). All references in the Asset
Purchase Agreement to "Schedule 2.3(a)(v)" shall mean Closing
Schedule 2.3(a)(v).
SECOND: Closing Schedule 2.3(a)(vii), attached hereto
as Exhibit B, shall replace and supersede in all respects
Execution Schedule 2.3(a)(vii). All references in the Asset
Purchase Agreement to "Schedule 2.3(a)(vii)" shall mean Closing
Schedule 2.3(a)(vii).
THIRD: Closing Schedule 2.3(b)(iv), attached hereto
as Exhibit C, shall replace and supersede in all respects
Execution Schedule 2.3(b)(iv). All references in the Asset
Purchase Agreement to "Schedule 2.3(b)(iv)" shall mean Closing
Schedule 2.3(b)(iv).
FOURTH: Closing Schedule 5.12, attached hereto as
Exhibit D, shall replace and supersede in all respects Execution
Schedule 5.12. All references in the Asset Purchase Agreement to
"Schedule 5.12" shall mean Closing Schedule 5.12.
FIFTH: Closing Schedule 7.14, attached hereto as
Exhibit E, shall replace and supersede in all respects Execution
Schedule 7.14. All references in the Asset Purchase Agreement to
"Schedule 7.14" shall mean Closing Schedule 7.14.
SIXTH: Closing Schedule 7.16, attached hereto as
Exhibit F, shall replace and supersede in all respects Execution
Schedule 7.16. All references in the Asset Purchase Agreement to
"Schedule 7.16" shall mean Closing Schedule 7.16.
SEVENTH: Effective hereby, Section 2.1(d) is hereby
deleted and replaced in its entirety by the following:
"(d) except to the extent specified in Schedule 5.12,
the Filed Business Intellectual Property listed in Schedule 5.12,
any Non-Filed Business Intellectual Property, and licenses to
Filed Business Intellectual Property and Non-Filed Business
Intellectual Property listed in Schedule 5.12 (such Filed
Business Intellectual Property, such Non-Filed Business
Intellectual Property, and such licenses thereto, collectively,
the "Business Intellectual Property");"
EIGHTH: Effective hereby, Section 2.1(l) is amended
by replacing the words "one-third" with the word "entire";
NINTH: Effective hereby, Section 3.1 is amended by
replacing "$830 million" with "$825,804,000."
TENTH: Effective hereby, Sections 5.12(e) and
5.12(f) are amended by replacing the word "Unfiled" (wherever it
appears in such sections) with the word "Non-Filed";
ELEVENTH: Effective hereby, Section 7.5(b) is amended
by adding the following proviso at the end of the second sentence
of Section 7.5(b):
", provided, however, that Fort Xxxxx shall file any
sales tax returns, subject to Buyer's reasonable review and
comment"
TWELFTH: This Agreement shall be construed and
enforced in accordance with the laws of the state of Delaware
without regard to its laws or regulations relating to choice of
law.
THIRTEENTH: This Agreement may be executed in two or
more counterparts, each of which shall be considered an original,
but all of which together shall constitute the same instrument.
IN WITNESS WHEREOF the parties hereto have caused this
Amendment Agreement to be executed by their duly authorized
officers.
FORT XXXXX CORPORATION
By:/s/ Xxxxxxxx X. Xxxxxxxx, XX
Name: Xxxxxxxx X. Xxxxxxxx, XX
Title: Senior Vice President,
General Counsel
ACX TECHNOLOGIES, INC.
By:/s/ Xxxx X.X. Xxxxxx
Name: Xxxx X.X. Xxxxxx
Title: Secretary
GRAPHIC PACKAGING CORPORATION
By:/s/ Xxxx X.X. Xxxxxx
Name: Xxxx X.X. Xxxxxx
Title: Assistant Secretary
