FIRST
AMENDMENT TO
ASSET
PURCHASE AGREEMENT
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:
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:
Capitalized
terms used herein and not otherwise defined shall have the meaning
given to such terms in the Agreement.
Exhibit
A to the Agreement is hereby amended and restated in its entirety,
as set forth in Schedule A attached hereto.
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.
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, rescind
