Exhibit 99-5
AMENDMENT AGREEMENT
This Amendment Agreement, dated as of December 16, 2004 (this
"Amendment"), relates to the Amended and Restated Note and Warrant Purchase
Agreement dated as of October 3, 2002 (as previously amended or supplemented,
the "Agreement"), by and among ▇▇▇▇▇ Ticonderoga Company, a Delaware corporation
(the "Company"), and each of The Equitable Life Assurance Society of the United
States, ▇▇▇▇ ▇▇▇▇▇▇▇ Life Insurance Company and Nomura International PLC
(collectively the "Noteholders").
WHEREAS, the Company desires to enter into an Agreement and Plan of
Merger by and among Fila - Fabbrica Italiana Lapis ▇▇ ▇▇▇▇▇▇ S.p.A., an Italian
corporation, Pencil Acquisition Corp., a Delaware corporation ("Merger Sub"),
and the Company substantially in the form attached as Exhibit A hereto (the
"Merger Agreement"), pursuant to which, on the terms and conditions provided in
the Merger Agreement, among other things, (x) Merger Sub will offer to purchase
all outstanding shares of the Company's common stock, par value $1.00 per share
(the "Common Stock"), at a purchase price of $7.00 per share in cash net to the
Seller (the "Offer") and (y) following the consummation of the Offer, Merger Sub
will merge with and into the Company, and all outstanding shares of Common Stock
not owned by Parent, Merger Sub or their affiliates will be converted into the
right to receive $7.00 per share in cash; and
WHEREAS, simultaneously with the execution and delivery of the Merger
Agreement, ▇▇▇▇ ▇▇▇▇ ("Pala"), ▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇"), certain Affiliates of Pala
and ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. Asta, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
(together "Sellers") will enter into a Stock Purchase Agreement with Merger Sub
substantially in the form of Exhibit B hereto (the "SPA") pursuant to which,
among other things, Sellers will sell, and Merger Sub will purchase all shares
of Common Stock beneficially owned by Sellers at a purchase price of $7.00 per
share in cash; and
WHEREAS, the Company has requested that the Agreement be amended to
provide that the execution and delivery of the Merger Agreement and the SPA, the
granting of the proxy contemplated by the SPA and the commencement of the Offer
will not constitute a "Change of Control" of the Company.
NOW THEREFORE, the parties hereto agree as follows:
1. Defined Terms. Capitalized terms used and not defined herein shall
have the meanings given them in the Agreement.
2. Amendment of Definition of Change of Control. Section 11.1 of the
Agreement is hereby amended to add the following sentence at the end of the
definition of "Change of Control:"
"Notwithstanding the foregoing, none of (I) the mere execution
and delivery by the stockholder parties thereto of a Stock
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Purchase Agreement (as in effect on December 16, 2004, the "SPA")
dated as of December 16, 2004 among ▇▇▇▇ ▇▇▇▇ ("Pala"), ▇▇▇▇
▇▇▇▇▇ ("▇▇▇▇▇"), certain Affiliates of Pala and ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
Asta, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and
Pencil Acquisition Corp., a Delaware corporation ("Purchaser")
(and the granting of the voting proxy pursuant thereto) or (II)
the mere execution and delivery by the Company of an Agreement
and Plan of Merger (as in effect on December 16, 2004, the
"Merger Agreement") by and among Fila - Fabbrica Italiana Lapis
▇▇ ▇▇▇▇▇▇ S.p.A., an Italian corporation, Purchaser and the
Company dated as of December 16, 2004, in each case substantially
in the form delivered to each holder of Notes on December 15,
2004, or (III) the mere commencement of the Offer, shall be
deemed to constitute a Change of Control; provided, however, that
without limiting the other provisions of this definition of
"Change of Control," (x) the purchase by Purchaser of shares of
common stock, par value $1.00 per share ("Common Stock"), of the
Company constituting 10% or more of the Company's outstanding
Common Stock (whether pursuant to the SPA, the Merger Agreement
or otherwise) or (y) the consummation of the merger contemplated
in the Merger Agreement shall constitute a Change of Control, and
provided further that the permissions granted by this sentence
shall expire on the "Outside Date" (as such term is defined in
the Merger Agreement). If the Outside Date is extended as
permitted by Section 7.5(s) of the Merger Agreement, the Company
shall deliver written notice to each holder of Notes with respect
to an extension of such Outside Date."
3. Agreement and Acknowledgement. The parties acknowledge and agree
that, (a) concurrently with the consummation of the Offer, the Company will pay
or cause to be paid in full all amounts outstanding under the Restated Notes as
of and through such date of consummation (the "Closing Date"), (b) effective
upon receipt of the payments contemplated by clause (a), the Restated Notes
shall be cancelled, the Restated Note Agreement and each Transaction Document
shall be terminated and (c) each Noteholder shall execute and deliver such
documents as the Company deems reasonably necessary to release the Collateral
from any and all liens in favor of the Noteholders created under or in
connection with the Transaction Documents.
4. Representations and Warranties. The Company hereby represents and
warrants to each Noteholder that, as of the date hereof and after giving effect
to the amendments contained herein:
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(a) No Default or Event of Default has occurred and is
continuing.
(b) The execution, delivery and performance by the Company of
this Amendment has been duly authorized by all necessary corporate and other
action and does not and will not require any registration with, consent or
approval of, notice to or action by, any person (including any Governmental
Authority) in order to be effective and enforceable, other than the consent of
the Noteholders being obtained hereby. The Agreement as amended by this
Amendment constitutes the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other laws affecting creditors' rights generally and subject to
general principles of equity, regardless of whether consideration in a
proceeding in equity or at law.
(c) The representations and warranties set forth in each
Transaction Document (as defined in the Agreement) are true and correct in all
material respects as of the date hereof as though given on the date hereof,
except (i) in the case of Sections 2.2(a), 2.2(b), and 2.17(a) of the Agreement,
to the extent such representations and warranties specifically relate to an
earlier date, in which case such representations and warranties shall have been
true and correct as of such date; (ii) in the case of Section 2.9(b) of the
Agreement, as expressly contemplated by the Merger Agreement; and (iii) for
matters, events, or changes in circumstances that have occurred or arisen after
the Restatement Date (as defined in the Agreement) that reasonably could not be
expected to result in the aggregate in a Material Adverse Effect (as defined in
the Agreement).
5. Conditions Precedent to Effectiveness. This Amendment shall become
effective on the date on which each of the following conditions is satisfied
(the "Effective Date"):
(a) This Amendment shall have been executed and delivered by a
duly authorized officer of each of the Company and the Noteholders.
(b) The Noteholders shall have received a certificate of the
Secretary of the Company, dated as of the Effective Date, certifying that the
representations and warranties made in Section 3 are true and correct in all
material respects.
6. Expenses. The Company agrees to pay or reimburse the Noteholders
for its reasonable out-of-pocket expenses in connection with this Amendment,
including the reasonable fees, charges and disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
LLP, counsel for the Noteholders.
7. Governing Law; Counterparts.
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(a) This Amendment and the rights and obligations of the parties
hereto shall be governed by, and construed and interpreted in accordance with,
the laws of the State of New York.
(b) This Amendment may be executed by one or more of the parties
to this Amendment on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. This Amendment may be delivered by facsimile transmission of the
relevant signature pages hereof.
[Remainder of page intentionally blank; next page is signature page.]
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IN WITNESS WHEREOF, the Company and the Noteholders signatory hereto
have caused this Amendment to be duly executed by their respective authorized
officers as of the day and year first above written.
▇▇▇▇▇ TICONDEROGA COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
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THE EQUITABLE LIFE ASSURANCE SOCIETY
OF THE UNITED STATES
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Investment Officer
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▇▇▇▇ ▇▇▇▇▇▇▇ LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Managing Director
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NOMURA INTERNATIONAL PLC
By: /s/ ▇. ▇▇▇▇▇▇▇
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Name: ▇. ▇▇▇▇▇▇▇
Title: Managing Director
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