Exhibit 2.1
FIRST AMENDMENT
TO
EQUITY PURCHASE
AGREEMENT
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 HICKS
ACQUISITION COMPANY I, INC., a Delaware corporation (“
Buyer ”), GPC HOLDINGS, L.P., a Pennsylvania
limited partnership (“ GPCH ”), GRAHAM
PACKAGING CORPORATION, a Pennsylvania corporation (“
GPC ”), GRAHAM CAPITAL COMPANY, a Pennsylvania
limited partnership, (“ GCC ”), GRAHAM
ENGINEERING CORPORATION, a Pennsylvania corporation (“
GEC ” and, together with GPCH, GCC and GPC, the
“ Graham Family Holders ”), BMP/GRAHAM
HOLDINGS CORPORATION, a Delaware corporation (“
BMP/GHC ”), BCP/GRAHAM 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 ”), GRAHAM 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.
