Exhibit 2.1
SECOND AMENDMENT
TO
ASSET PURCHASE
AGREEMENT
among
KADANT COMPOSITES
LLC,
KADANT INC.,
LDI COMPOSITES CO.
and
LIBERTY DIVERSIFIED INDUSTRIES,
INC.
dated as of
May 1, 2009
SECOND AMENDMENT TO ASSET
PURCHASE AGREEMENT
This Second Amendment to Asset Purchase
Agreement (the “Second Amendment”) is made and entered
into as of May 1, 2009, among KADANT COMPOSITES LLC , a
Delaware limited liability company (“ Seller ”),
KADANT INC. , a Delaware corporation (“ Kadant
”), LDI COMPOSITES CO. , a Minnesota corporation
(“ Buyer ”), and LIBERTY DIVERSIFIED
INDUSTRIES, INC. , a Minnesota corporation, and parent
corporation of Buyer (“ Buyer Parent
”). Capitalized terms used herein and not
otherwise defined shall have the meaning ascribed to them in the
Agreement (defined below).
WHEREAS , effective October 21, 2005, Seller, Kadant,
Buyer and Buyer Parent entered into that certain Asset Purchase
Agreement, as amended by a First Amendment to Asset Purchase
Agreement dated October 10, 2006 (as so amended, the “
Agreement ”), pursuant to which Seller sold to Buyer
all of the tangible and intangible assets of Seller other than the
Excluded Assets, and Buyer purchased the same on the terms set
forth therein;
WHEREAS , the Buyer Parent has indicated to the Seller
that the Buyer Parent intends to sell a portion of the Assets,
comprising the Geodeck decking and railing business to a third
party Nature’s Deck LLC (“Purchaser”) on or about
May 1, 2009 (the “Sale Transaction”); and
WHEREAS , the parties wish to further amend the
Agreement to reflect certain terms relating to or resulting from
the Sale Transaction;
NOW ,
THEREFORE , in consideration of the covenants and agreements
hereinafter set forth, the parties hereto agree as
follows:
1.
Extension of Indemnification to Purchaser in Sale
Transaction . Notwithstanding the prohibitions on
assignment set forth in Section 13 of the Agreement, each of Kadant
and Seller agree that Purchaser shall be an “Indemnified
Party” for purposes of Section 12 of the Agreement from and
after the closing of the Sale Transaction on the terms and
conditions set forth below:
(a) Notwithstanding
the provisions of Section 12(a) of the Agreement, the
indemnification obligations of Kadant and Seller applicable to the
Purchaser shall relate solely to valid Third Party Claims (a)
existing as of the date of the closing of the Sale Transaction or
(b) made after the date of the closing of the Sale Transaction, in
each case solely with respect to Warranty Claims associated with
GeoDeck decking and railing products manufactured and sold by
Seller on or before October 21, 2005 (the “Seller’s
Product”). For the avoidance of doubt, in no
event shall Kadant or Seller have any obligation to indemnify
Purchaser for any claim that Purchaser may have against Buyer or
Buyer Parent.
(b) The
Parties agree that the p
