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EXHIBIT 2.2
Amendment No. 1 dated as of June 28, 1999 to Contribution and Merger
Agreement dated as of April 29, 1999 among Suiza Corporation, Franklin
Plastics, Inc., the Suiza Companies identified therein, Vestar Packaging LLC,
▇▇▇▇ Plastics Holdings, Inc., the ▇▇▇▇ Companies identified therein, ▇▇▇▇
Plastics Group LLC, Consolidated Container Holdings LLC and Consolidated
Container Company LLC (the "Merger and Contribution Agreement").
Whereas, the parties hereto have agreed to amend the Contribution and
Merger Agreement as more fully described herein;
Now, therefore, in consideration of the premises, the parties hereto agree
as follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in the
Contribution and Merger Agreement shall have their defined meanings when used
herein.
2. Amendments. The Contribution and Merger Agreement is hereby amended as
follows:
(a) The forms of Unit Option Plan, Unit Option Agreement and Redemption
Agreement attached as Exhibit B to the Contribution and Merger Agreement
hereby are replaced with the forms thereof.
(b) There hereby is added to Section 12.5 of the Contribution and
Merger Agreement the following paragraph:
"(c) The parties agree to cause Holdings, in accordance with Section
12.11, to indemnify, defend and hold harmless ▇▇▇▇'▇ Indemnified
Persons for, and will pay to ▇▇▇▇'▇ Indemnified Persons the amount
of, any Damages incurred by any of Holdings and its subsidiaries and
▇▇▇▇'▇ Indemnified Persons arising directly or indirectly, from or
in connection with, any infringement or alleged infringement prior
to the Closing Date of U.S. Patent No. 4,605,576, entitled
"Multilayer Plastic Articles" (the "Jabarin Patent"), and U.S.
Patent No. 4,434,264, entitled "High Clarity Propylene Polymer
Compositions of Improved Impact Strength" (the "▇▇▇▇▇▇ Patent"), by
any Suiza Party or any Affiliate thereof."
(c) There hereby is added to the first sentence of Section 12.11(b) of
the Contribution and Merger Agreement following the words "Section 12.3 or
in Section 12.5(a)" the words "or in Section 12.5(c)".
(d) There hereby is added at the beginning of each of the first and
second sentences of Section 2.3(b) the words
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"Except as otherwise expressly agreed in writing by Suiza Foods,
Holdings and Vestar,"; and there hereby is added at the end of the
second sentence of Section 2.3(b) the words", and Holdings shall pay
Franklin an amount in cash equal to the exercise price paid to Holdings
upon exercise of such Franklin Replacement Option."
(e) The second sentence of Section 7.13 of Exhibit A hereby is
amended by adding at the beginning thereof the words "Except as
otherwise expressly agreed in writing by Suiza Foods, the Company and
Vestar,"; and there hereby is added at the end of said second sentence
the words", and the Company shall pay Franklin an amount in cash equal
to the exercise price paid to the Company upon exercise of such
Franklin Replacement Option."
3. Continuing Effect of Merger Agreement. This Amendment shall
not constitute a waiver or amendment of any other provision of the Contribution
and Merger Agreement not expressly referred to herein and shall not be construed
as a waiver or consent to any future action on the part of any party hereto that
would require a waiver or consent of any other party hereto. Except as expressly
amended herein, the provisions of the Contribution and Merger Agreement are and
shall remain in full force and effect.
4. Counterparts. This Amendment may be executed by the parties
hereto in any number of counterparts, and all of such counterparts taken
together shall be deemed to constitute one and the same instrument.
5. Effectiveness. This Amendment shall become effective upon the
execution and delivery of this Amendment by all parties hereto. This Amendment
shall have no force or effect prior thereto.
6. Governing Law. The Contribution and Merger Agreement, as
amended hereby, and the rights and obligations of the parties thereto shall be
governed by, and construed and enforced in accordance with, and the rights of
parties shall be governed by, the laws of the State of Delaware applicable to
contracts entered into and to be performed in the State of Delaware.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the day and year first above written.
SUIZA FOODS CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive VP and General Counsel
PLASTIC CONTAINERS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: SVP and Chief Financial Officer
CONTINENTAL CARIBBEAN
CONTAINERS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: SVP and Chief Financial Officer
CONTINENTAL PLASTIC CONTAINERS,
INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: SVP and Chief Financial Officer
FRANKLIN PLASTICS, INC., A
DELAWARE CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: VP
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ALLENTOWN PLASTICS, INC.
By: /s/ [ILLEGIBLE]
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Name:
Title: VP
ATLANTA CONTAINER, INC.
By: /s/ [ILLEGIBLE]
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Name:
Title: VP
CHESTER COUNTY CONTAINER CORP.
By: /s/ [ILLEGIBLE]
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Name:
Title: VP
FIRST CAPITAL PLASTICS, INC.
By: /s/ [ILLEGIBLE]
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Name:
Title: VP
FLORIDA PLASTICS, INC.
By: /s/ [ILLEGIBLE]
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Name:
Title: VP
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ILLINOIS PLASTICS, INC.
By: /s/ [ILLEGIBLE]
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Name:
Title: VP
KENTWOOD PLASTICS, INC.
By: /s/ [ILLEGIBLE]
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Name:
Title: VP
LIQUITAINE ACQUISITION CORPORATION
By: /s/ [ILLEGIBLE]
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Name:
Title: VP
MAINE PLASTICS, INC.
By: /s/ [ILLEGIBLE]
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Name:
Title: VP
MARLBOROUGH PLASTICS, INC.
By: /s/ [ILLEGIBLE]
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Name:
Title: VP
MIDDLESEX PLASTICS, INC.
By: /s/ [ILLEGIBLE]
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Name:
Title: VP
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NEW JERSEY PLASTICS, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name:
Title: VP
NORTH CAROLINA PLASTICS, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name:
Title: VP
OHIO STATE PLASTICS, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name:
Title: ▇▇
▇▇▇▇▇▇▇▇ PLASTICS, INC.
A MASSACHUSETTS CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name:
Title: VP
RICHMOND CONTAINER, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name:
Title: ▇▇
▇▇▇▇▇▇ ACQUISITION CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name:
Title: VP
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▇▇▇▇▇▇▇ PLASTICS, INC.
By: /s/ [ILLEGIBLE]
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Name:
Title: VP
VANGUARD MANUFACTURING, INC.
By: /s/ [ILLEGIBLE]
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Name:
Title: VP
CONSOLIDATED PLASTECHS, INC.
By: /s/ [ILLEGIBLE]
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Name:
Title: VP
VESTAR PACKAGING LLC
By: Vestar Capital Partners
III, L.P., its Managing
Member
By: Vestar Associates III,
L.P., its General Partner
By: Vestar Associates
Corporation III, its
General Partner
By: /s/ [ILLEGIBLE]
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Name:
Title: