EX-2.3 5 amend2.txt SECOND AMENDMENT TO MERGER AGREEMENT SECOND AMENDMENT TO AGREEMENT AND PLAN OF MERGER SECOND AMENDMENT (this "SECOND AMENDMENT"), dated as of July 22, 2002 to the Agreement and Plan of Merger, dated as of May 25, 2002, among GS Berry Acquisition Corp., a Delaware corporation, GS Capital Partners 2000, L.P., GS Capital Partners 2000 Offshore, L.P., GS Capital Partners 2000 GmbH & Co. Beteiligungs KG, Bridge Street Special Opportunities Fund 2000, L.P., GS Capital Partners 2000 Employee Fund, L.P. and Stone Street Fund 2000, L.P., BPC Holding Corporation, a Delaware corporation, Berry Plastics Corporation, a Delaware corporation, the Stockholders of Holding listed on SCHEDULE I attached thereto, Atlantic Equity Partners International II, L.P., J.P. Morgan Partners (SBIC), LLC, BPC Equity, LLC and Ira G. Boots, an individual, as amended by the First Amendment, dated as of July 17, 2002 (as amended, supplemented or otherwise modified from time to time, the "AGREEMENT"). WHEREAS, the parties hereto desire to amend the Agreement pursuant to Section 11.8 thereof in the manner set forth below. NOW, THEREFORE, the parties hereto agree as follows: 1. All terms used herein which are defined in the Agreement and not otherwise defined or amended herein are used herein as defined in the Agreement. 2. The definition of "Transaction Costs" in Section 3.1 is hereby amended and restated to state in its entirety as follows: "TRANSACTION COSTS" means all the out-of-pocket costs and expenses of the Sellers and any Corporation Entity relating to the merger and the transactions contemplated hereby that are paid or payable on the Closing Date, which categories of items are set forth on Schedule 3.1(c) hereto, payable by any Corporation Entity but specifically excluding any costs and expenses included in the definition of "Funded Obligations" LESS $426,388.74. None of the items set forth on Schedule 3.1(c) shall be included on the Closing Working Capital Statement. 3. The first sentence Section 3.7(a) is hereby amended by replacing the words "as of the Closing Date" with the following: "as of the end of the second shift that began on July 20, 2002 for each of the Corporation's operating facilities in accordance with the Corporation's current end of month cut-off procedures". 4. The parties hereto hereby acknowledge and confirm that the Agreement is, and shall continue to be, in full force and effect and is hereby ratified and confirmed in all respects except that on and after the date of this Second Amendment all references in any related document to "the Agreement", "the Merger Agreement", "thereto", "thereof", "thereunder" or words of like import referring to the Agreement shall mean the Agreement as amended by this Second Amendment. 5. (a) This Second Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. (b) Section and paragraph headings are included for convenience of reference only and shall not constitute a part of this Second Amendment for any other purpose. - 2 - IN WITNESS WHEREOF, this First Amendment has been signed on behalf of each of the parties hereto as of the date first written above. GS BERRY ACQUISITION CORP. By:________________________________ Name: Title: GS FUNDS: GS CAPITAL PARTNERS 2000, L.P. By: GS Advisors 2000, L.L.C., its general partner By:________________________________ Name: Title: GS CAPITAL PARTNERS 2000, OFFSHORE, L.P. By: GS Advisors 2000, L.L.C., its general partner By:________________________________ Name: Title: GS CAPITAL PARTNERS 2000, GMBH & CO. BETEILIGUNGS KG By: Goldman Sachs Management GPGmbH, its general partner By:________________________________ Name: Title: BRIDGE STREET SPECIAL OPPORTUNITIES FUND 2000, L.P. By: Bridge Street Special Opportunities 2000, L.L.C., its general partner By:________________________________ Name: Title: GS CAPITAL PARTNERS 2000 EMPLOYEE FUND, L.P. By: GS Employee Funds 2000, L.L.C., its general partner By:________________________________ Name: Title: STONE STREET FUND 2000, L.P. By: Stone Street 2000, L.L.C., its general partner By:________________________________ Name: Title: BPC HOLDING CORPORATION By:________________________________ Name: Title: BERRY PLASTICS CORPORATION By:________________________________ Name: Title: SELLERS: By: ______________________________ Ira G. Boots By: ______________________________ James M. Kratochvil THE JAMES M. KRATOCHVIL CHARITABLE REMAINDER UNITRUST By: ______________________________ James M. Kratochvil, as Trustee ATLANTIC EQUITY PARTNERS INTERNATIONAL II, L.P. By: Atlantic Equity Associates International II, L.P., its General Partner By: Buaron Holdings Ltd., its Managing General Partner By: _______________________________ Name: Title: BPC EQUITY, LLC By: Aetna Life Insurance Company, its Member By: _______________________________ Name: Title: J.P. MORGAN PARTNERS (SBIC), LLC By: By: _______________________________ Name: Title: THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY By: _______________________________ Name: Title: