EXHIBIT 10.1


 


AMENDMENT NO. 1 TO

ASSET PURCHASE AGREEMENT


 


THIS
AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT, dated as of
March 30, 2006 (this “Amendment”),
is made and entered into by and among NewPage Corporation, a Delaware
corporation (“Parent”), Chillicothe Paper
Inc., a Delaware corporation and wholly-owned subsidiary of Parent (the “Seller”), and P. H. Glatfelter
Company, a Pennsylvania corporation (the “Purchaser”).
Capitalized terms used, but not otherwise defined, herein shall have the
meanings ascribed to such terms in the Purchase Agreement (as defined below).


 


WHEREAS, Parent, the
Seller and the Purchaser have entered into that certain Asset Purchase
Agreement, dated as of February 21, 2006 (as amended by this Amendment,
the “Purchase Agreement”), which
contemplates that Parent will, and will cause the Seller and Parent’s other
Affiliates to, sell, assign, transfer, convey and deliver to the Purchaser, and
the Purchaser will purchase from such Persons, all of such Persons’ rights,
title and interests in and to, the Purchased Assets, and the Purchaser will
assume and agree to pay, perform and discharge the Assumed Liabilities, in
each case, upon the terms and subject to the conditions set forth in the
Purchase Agreement; and


 


WHEREAS, Parent, the Seller
and the Purchaser desire to amend the Purchase Agreement as set forth below;


 


NOW, THEREFORE, in
consideration of the mutual agreements contained herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:


 


ARTICLE I

AMENDMENT TO PURCHASE AGREEMENT


 


Section 1.1                                      Amendment
of Section 1.01. Section 1.01 of the Purchase Agreement is hereby
amended by inserting into Section 1.01 in alphabetical order the following
additional defined terms:


 


“2005 Real Estate Taxes Amount” means an amount
equal to the unpaid real estate taxes owed by Parent or the Seller set forth on
the Estimated Closing Date Working Capital Statement.


 


“Amended Purchase Price” means the Purchase Price
together with interest thereon at a rate per annum equal to the Prime Rate
quoted on March 31, 2006, and calculated based on the period beginning on,
and inclusive of, March 31, 2006 and ending on, and inclusive of, the
calendar day immediately preceding the date on which the Closing occurs in
accordance with this Agreement.


 


“Effective Time” means 12:01 A.M. on April 1,
2006.


 

















 


“Network Transition” means the services to be
provided by Parent to the Purchaser and the related rights and obligations of Parent
and the Seller that are set forth under the sub-heading “Separation Services”
on Schedule 9 (Information Systems) to the Transition Services Agreement; provided that Parent, the Seller and
the Purchaser shall comply with all their respective obligations under the
Transition Services Agreement that relate to the Network Transition as if such
agreement were executed and delivered by them as of the Effective Time,
including, in the case of the Purchaser, the requirements set forth
under “Service Requirements” in Schedule 9 to the Transition Services
Agreement.


 


“Preliminary Closing” means the preliminary
delivery on March 31, 2006, by the Seller of the fully-executed Seller
Deliverables to counsel to the Purchaser, and by the Purchaser of the
fully-executed Purchaser Deliverables to counsel to the Seller, at the location
of the Closing, which documents will be held in escrow by such respective
counsel unless and until delivered to the Seller or the Purchaser, as
applicable, in accordance with Section 2.04.


 


“Purchaser Deliverables” means the items
identified in Section 2.06 (b) through (f).


 


“Seller Deliverables” means the items identified
in Section 2.05 (a) through (c) and (e) through (h).


 


Section 1.2                                      Amendment
of Section 2.04. Section 2.04 of the Purchase Agreement is hereby
amended by deleting the period at the end of such Section 2.04 and
replacing it with the following:


 


“; provided
further that if the Preliminary Closing occurs, then: (a) the
Purchaser and Parent shall commence the Network Transition at 12:01 A.M.
on April 1, 2006, as well as any other transition or integration
activities approved in writing by Parent; (b) subject to the satisfaction
or waiver of the conditions to the obligations of the parties set forth in Article VII,
the Closing shall occur at 10:00 A.M. New York time on April 3, 2006,
and shall be effective as of the Effective Time; (c) at the Closing, the
Purchaser shall deliver to the Seller (i) the Purchaser Deliverables and (ii) by
wire transfer in immediately available funds to the Purchase Price Bank
Account, the Amended Purchase Price, the delivery of which shall satisfy the
Purchaser’s obligations under Section 2.06; and (d) at the Closing,
the Seller shall deliver to the Purchaser (i) the Seller Deliverables and (ii) upon
the Seller’s confirmed receipt of the Amended Purchase Price, a receipt for the
Amended Purchase Price, the delivery of which shall satisfy Seller’s
obligations under Section 2.05.


 


If the
Closing occurs, for all purposes hereunder, wherever the term “Closing Date” is
used herein (including in phrases such as “prior to the Closing Date”, “as of
the Closing Date”, “on or prior to the Closing Date”, “after the Closing Date”,
“at the Closing Date”, “on the Closing Date”, “between the date hereof and the
Closing Date”, “from and after the Closing Date”, “from the Closing Date” and


 


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“following
the Closing Date”), other than in defined terms in which the words “Closing
Date” are included, the words “Closing Date” shall be deemed to be replaced
with the words “Effective Time.”“


 


Section 1.3                                      Amendment
of Section 2.06. Section 2.06 of the Purchase Agreement is hereby
amended by deleting the word “and” at the end of subsection 2.06(d) and
the period at the end of such Section 2.06 and replacing such period with
the following:


 


“; and


 


(f)                                  the
2005 Real Estate Taxes Amount by wire in immediately available funds to the
Title Company.”


 


Section 1.4                                      Amendment of Section 5.17(f). Section 5.17(f) of the Purchase
Agreement is hereby deleted in its entirety.


 


ARTICLE II

AMENDMENT OF DISCLOSURE SCHEDULE


 


Section 2.1                                      Amendment of Sections 1.01 and 2.01. Each of Sections 1.01(a), (b), (c), (d), (e) and
(f) and 2.01(b)(ix) of the Disclosure Schedule is hereby amended
and restated in its entirety as set forth on Exhibit A attached
hereto, and each such amended section of the Disclosure Schedule shall
be deemed for all purposes to have been delivered as of the date of the
Purchase Agreement.


 


Section 2.2                                      Amendment of Section 5.04(f). Section 5.04(f) of the Disclosure
Schedule is hereby amended and restated in its entirety as set forth on Exhibit B
attached hereto, and such amended section of the Disclosure Schedule shall
be deemed for all purposes to have been delivered as of the date of the
Purchase Agreement.


 


ARTICLE III

PARENT’S AND SELLER’S LOSS;

COMPENSATION FOR REVERSAL OF NETWORK TRANSITION;

INDEMNIFICATION


 


Section 3.1                                      Compensation.
If the Preliminary Closing occurs, and the Closing does not occur on April 3,
2006, or another date agreed upon by the parties, then the Purchaser upon
demand of Parent shall compensate and reimburse (“Compensate”)
Parent and the Seller and any Affiliate of Parent or the Seller and each of
their and their Affiliates’ respective officers, directors, employees,
stockholders, representatives and agents (collectively, “Protected Parties”)
for any and all liabilities, loss of profits, losses (including any of the
foregoing arising from any changes, alterations, destruction, business
interruption, delays or stoppages), or damages of any kind (including
reasonably related consequential damages, reasonable out-of pocket costs and
expenses, and costs and expenses reasonably allocable to time spent by their
employees or officers), actually suffered or incurred, whether jointly or
severally, directly or indirectly, by the Protected Parties arising out of or
resulting, directly or indirectly, from the Network Transition, or any other
transition or integration activity undertaken by or on behalf of the Purchaser authorized
or unauthorized pursuant to Section 2.04 of the Purchase Agreement, in
each case


 


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irrespective of whether such effect would otherwise be
a violation of any of the terms of the Purchase Agreement, as amended by this
Amendment, had the Closing occurred on April 3, 2006 (hereinafter a “Business  Loss”).
“Business  Loss”
shall also include any Loss arising out of or resulting, directly or
indirectly, from the Protected Parties’, or, at the Protected Parties’ request,
the Purchaser’s, reversal of, or attempt to reverse, the Network Transition or
any effect of any other action carried out, or attempted to be carried out, by
the Protected Parties in order to put the Protected Parties and their systems
and facilities in the same condition in which such persons, systems and
facilities would have been had no aspect of the Network Transition occurred
(the “Reversal of Network Transition”).


 


Section 3.2                                      Indemnification.
Without duplication of any recovery by any Protected Party pursuant to Section 3.1,
the Purchaser shall indemnify, defend and hold harmless the Protected Parties
from and against any and all Business Losses or Losses arising out of or
resulting from any Third-Party Claim (hereinafter a “Third-Party
Loss”) relating to, arising out of or resulting from the Network
Transition, the Reversal of Network Transition, or any other transition or
integration activity undertaken by or on behalf of the Purchaser whether
authorized or unauthorized pursuant to Section 2.04 of the Purchase
Agreement.


 


Section 3.3                                      Indemnification
Procedures. If a Protected Party receives notice of any Third-Party Claim
against it which may give rise to a claim for a Third-Party Loss under
this Article III, then Parent shall give notice of such Third Party Claim
to the Purchaser, who shall be entitled to undertake and conduct the
investigation and defense in connection with such Third-Party Claim if, within
15 days after receipt of notice of the Third Party Claim from Parent, the
Purchaser notifies Parent that the Purchaser (i) acknowledges that it is
obligated to indemnify the relevant Protected Parties for the Third Party Claim
and (ii) is assuming the investigation and defense of the Third Party
Claim. If the Purchaser fails or refuses to undertake the investigation and
defense of a Third Party Claim in accordance with the aforementioned notification
procedures or is not conducting such investigation and defense in a manner
reasonably satisfactory to Parent, then Parent shall be entitled to immediately
assume control, at the expense of the Purchaser, of such investigation and
defense, and the Purchaser, together with any of its legal representatives
involved with such investigation and defense, shall promptly cooperate with
Parent and its legal representatives in connection with Parent’s assumption of
such control. Each Protected Party and the Purchaser shall cooperate with each
other with respect to any claim relating to a Third Party Loss, including
making available to the other, at the Purchaser’s expense, all witnesses,
records, materials and information in their respective possession or under
their respective control relating to such matter. No Third Party Claim may be
settled by the Purchaser or the Parent without the other party’s prior written
consent, which consent will not be unreasonably withheld, conditioned or
delayed; provided that no such consent
will be required if such compromise or settlement is based solely on the
payment of money in exchange for a complete release of the Purchaser or the
Protected Party, as applicable, without any further obligations being imposed
on such Person.


 


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ARTICLE IV

MISCELLANEOUS


 


Section 4.1                                      No
Waiver. Nothing in this Amendment shall constitute a waiver by Parent, the
Seller or the Purchaser of any breach or default on the part of any party
to the Purchase Agreement.


 


Section 4.2                                      Governing
Law; Jurisdiction. The provisions of Sections 10.12 of the Purchase
Agreement shall apply to this Amendment as if references to “Agreement” therein
were to this Amendment.


 


Section 4.3                                      Entire
Agreement. This Amendment together with the Purchase Agreement (together
with the Schedules, Exhibits and other agreements referenced therein), the
Confidentiality Agreement and the Ancillary Agreements constitute the entire
agreement of the parties hereto with respect to the subject matter hereof and
thereof and supersede all prior agreements and undertakings, both written and
oral, among the Seller, Parent and the Purchaser with respect to the subject
matter hereof and thereof.


 


Section 4.4                                      Effect.
Except as expressly set forth herein, this Amendment shall not by implication
or otherwise alter, modify, amend or in any way affect any of the
representations, warranties, terms, conditions, obligations, covenants or
agreements contained in the Purchase Agreement, all of which shall continue in
full force and effect in accordance with their respective terms. For the
avoidance of doubt, except as expressly set forth herein, the execution,
delivery and effectiveness of this Amendment shall not constitute a
reaffirmation, remaking, withdrawal or modification as of the date of this
Amendment of any of the representations, warranties or covenants of any party
hereto.


 


Section 4.5                                      Counterparts.
This Amendment may be executed and delivered (including by facsimile
transmission) in one or more counterparts, and by the different parties hereto
in separate counterparts, each of which when executed shall be deemed to be an
original, but all of which taken together shall constitute one and the same
agreement.


 


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IN WITNESS WHEREOF,
the parties hereto caused this Amendment No. 1 to Asset Purchase Agreement
to be duly executed as of the date first above written.


 


 


	
  NEWPAGE CORPORATION

  	
  CHILLICOTHE
  PAPER INC.

  
	
   

  	
   

  
	
  By:

  	
  /s/ Matthew L. Jesch

  	
   

  	
  By:

  	
  /s/ Matthew L.
  Jesch

  	
   

  
	
   

  	
  Name: Matthew
  Jesch

  	
   

  	
  Name: Matthew
  Jesch

  
	
   

  	
  Title: Vice President and Chief Financial

  Officer

  	
   

  	
  Title: Vice President and Chief

  Financial Officer

  
						



 


 


	
  P. H. GLATFELTER COMPANY

  
	
   

  
	
  By:

  	
  /s/ George H. Glatfelter II

  	
   

  
	
   

  	
  Name: George H. Glatfelter II

  
	
   

  	
  Title: Chairman and Chief Executive Officer

  



 


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