EXHIBIT 10.2
AMENDMENT TO STOCK PURCHASE AGREEMENT
Amendment to Stock Purchase Agreement (this "Amendment"), dated as of
October 27, 2000, by and between Aftermarket Technology Corp., a Delaware
corporation ("Seller"), and ATCDG Acquisition Corp., a Delaware corporation
("Buyer"), amending that certain Stock Purchase Agreement, dated September 1,
2000, by and between Seller and Buyer.
1. MEXICALI SYSTEM. Seller agrees to pay for the Mexicali
System Costs (as hereinafter defined) at the facility located at Circuito Norte
No. 8, Parque Industrial Nelson, KM 14 Carretera a San Luis R.C., Mexicali,
B.C., Mexico (the "Mexicali Facility"); provided that Seller's total maximum
obligation pursuant to this Section 1 shall total $280,000 which shall consist
of the first $250,000 of any and all Mexicali System Costs plus 50% of any
Mexicali System Costs up to the next $60,000 of any and all Mexicali System
Costs. Seller shall pay all amounts due and owing under this Section 1 within 15
days of receipt of a bill evidencing the amount payable with respect hereto. As
used herein, "Mexicali System Costs" means costs and expenses of designing,
installing, modifying and/or repairing the air conditioning, ventilation, dust
control, fume control, or emission control systems with respect to the interior
air quality, ventilation and/or temperature conditions (such design,
installation, modifications and/or repairs to be referred to herein as the
"Mexican Project").
2. MEXICALI THIRD PARTY CLAIMS. Buyer Indemnities shall each be
indemnified and held harmless to the extent set forth in Article IX of the Stock
Purchase Agreement, by Seller in respect of any Environmental Damages incurred
by any Buyer Indemnitee (excluding consequential damages to such Buyer
Indemnitee but including consequential damages suffered by a third party that
have been recovered by such third party against a Buyer Indemnitee) to the
extent arising from third-party claims with respect to, arising from or in
connection with interior air quality, ventilation and/or temperature conditions
at the facility located at the Mexicali Facility ("Mexicali Third Party
Losses"). Seller's indemnity under this Section 2 (the "Mexicali Third Party
Indemnity") shall not be subject to the Aggregate Basket, as that term is
defined in the Stock Purchase Agreement; nor shall it be subject to any maximum
cap; provided that Seller's liability with respect to the first $200,000 of
Mexicali Third Party Losses shall total 75% of any such losses and thereafter
any liability with respect to any Mexicali Third Party Losses in excess of
$200,000 shall be the entire liability and obligation of Seller; provided, that
the indemnification provided by Seller pursuant to this Section 2 shall not be
applicable to any Mexicali Third Party Losses to the extent arising following
the Deadline (as hereinafter defined). As used herein, the "Deadline" means the
earlier to occur of (1) completion to Buyer's satisfaction of the Mexicali
Project and (2) June 30, 2001 (such date to be extended by a Force Majeure
Event). As used herein, a "Force Majeure Event" means any act of God, fire,
casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of
production facilities, riot, insurrection, material equipment or labor
unavailability, or any other cause beyond the reasonable control of the Buyer.
3. SEATTLE UST. Buyer Indemnities shall each be indemnified and
held harmless to the extent set forth in Article IX of the Stock Purchase
Agreement, by Seller in respect of any Environmental Damages incurred by any
Buyer Indemnitee (excluding consequential damages to such Buyer Indemnitee but
including consequential damages suffered by a third party that have been
recovered by such third party against a Buyer Indemnitee) to the extent arising
from any Releases from the former underground storage tank system located at 401
South Webster Street, Seattle Washington. Seller's indemnity hereunder shall not
be subject to the Aggregate Basket, as that term is defined in the Stock
Purchase Agreement; nor shall it be subject to any maximum cap and such
indemnity shall be deemed incorporated into and added to Exhibit H of the Stock
Purchase Agreement.
4. Section 2.02(b) of the Purchase Agreement is hereby amended
in its entirety as follows:
(b) At the Closing Buyer shall pay to Seller, in cash by wire
transfer of immediately available funds to a bank account or bank
accounts designated in writing by Seller, an aggregate amount
equal to:
(i) Fifty Eight Million Three Hundred Thousand Dollars
($58,300,000); plus
(ii) the amount (if any) by which Estimated Net Working
Capital is greater than $77,246,000;
(iii) the amount (if any) by which Estimated Net Cash is
greater than $0; minus
(iv) the amount (if any) by which Estimated Net Working
Capital is less than $77,246,000; minus
(v) the amount (if any) by which Estimated Net Cash is less
than $0.
(c) At the Closing, Buyer shall issue and deliver to Seller
certificates representing shares (the "Preferred Shares") of
Buyer's Series B Preferred Stock having an aggregate stated value
of Eight Million Six Hundred Fifty Thousand ($8,650,000).
(d) At the Closing, Buyer shall issue and deliver to Seller a
Senior Subordinated Note in the amount of Ten Million Fifty
Thousand Dollars ($10,050,000) issued pursuant to a Note Purchase
Agreement, dated as of the Closing Date, between the Buyer and
Seller.
5. Section 2.05(b) of the Purchase Agreement shall be amended
to add the following clause (ix):
(ix) The Note, executed on behalf of Buyer, in form reasonably
acceptable to the parties hereto.
6. Seller hereby represents and warrants to Buyer that all
obligations of King-O-Matic pursuant to or arising under the King-O-Matic
Intercompany Note have been paid and satisfied.
7. Notwithstanding anything contained in the Purchase Agreement
to the contrary, Seller hereby agrees and acknowledges that Buyer shall be
entitled to use the "ATC Distribution Group, Inc." or any other name containing
direct or indirect reference to ATC or the letters "ATC" until 30 days following
written notice from Seller that Seller has decided not terminate use of the name
"ATC".
8. The definition of "Financial Statements" contained in
Section 3.09 of the Purchase Agreement shall include, in addition to the
statements specified in such Section 3.09, the unaudited consolidated balance
sheet and related unaudited consolidated statement of operations and retained
earnings for the Company and the Company Subsidiaries as of and for the nine
months ended September 30, 2000, a copy of which is attached hereto.
9. Seller shall continue to provide coverage under the ATC
FlexChoice Program to the employees of the Company through October 31, 2000. The
Company shall promptly reimburse Seller for all claims paid by Seller to or on
behalf of the Company's employees under the Seller's self-insured benefit plans
(including the PPO medical plan and the vision care plan) to the extent such
claims are attributable to the period October 28 - October 31, 2000.
10. Exhibit H to the Purchase Agreement is hereby amended to add
the following facility:
4000 N.W. 39th Expressway
Oklahoma City, Oklahoma
11. Seller shall reimburse Buyer for any fees payable by Buyer
to the lessor and landlords of the Company or Seller in connection with
obtaining any consent from any such lessor or landlord to the consummation of
the transactions contemplated hereby, including to Principal Life Insurance
Company.
12. Buyer shall give Seller prompt notice of any claim for
Damages that Buyer reasonably expects to be $250,000 or more and which Buyer
intends to apply, in whole or in part, against the Aggregate Basket.
13. That certain Master Lease, dated February 16, 1998, between
Sun Data, Inc. (now known as Solarcom) and Seller, pursuant to which various
items of computer hardware and software have been leased by Seller for the
benefit of the Company, is being assigned by Seller to the Company and in
connection with such assignment is being amended to require the Company to buy
all such hardware and software at the end of their respective lease terms.
Seller agrees that it shall promptly pay to the Company any amounts required to
be paid by the Company to purchase such hardware and software in excess of
$320,000 and that such payments shall be split 50/50 between Buyer and Seller as
they come due, except that Buyer's first such termination payment due in March
2001 shall be 50% of the required payment plus $20,000. Buyer and Seller hereby
agree that, for all purposes of this Agreement, the Master Lease is an operating
lease, not a capital lease.
14. Section 7.07 of the Purchase Agreement is deleted in its
entirety and replaced with the following:
7.07 USE OF NAME; LOGO. Simultaneously with the Closing
hereunder, Seller shall grant the Company and the Company Subsidiaries
a 365 day (such time period, running from the Closing Date through the
end of the 365th day after the Closing Date, is the "Transition
Period"), royalty free, non-exclusive and non-transferable license to
continue to use the logo set forth on SCHEDULE 7.07 in any medium,
including, without limitation, signs, boxes, invoices and promotional
material, in which it is displayed on the date hereof. The parties
agree and acknowledge that use of such logo by the Company or any
Company Subsidiary after the end of the Transition Period would
infringe Seller's intellectual property rights, and accordingly, Buyer
covenants that it will cause the Company and the Company Subsidiaries,
to cease all use of such logo after the end of the Transition Period.
Within 30 days after written notice from Seller, (i) the Certificate
of Incorporation of the Company and each of its affiliates shall be
amended in order to change its name to a name that does not contain
any direct or indirect reference to Seller or the letters "ATC" and
(ii) the Company shall make appropriate filings, reflecting such name
change, in each jurisdiction in which the Company is authorized to
conduct business as a foreign corporation. Except to the extent
expressly permitted by the license to be granted pursuant to the first
sentence of this Section 7.07, from and after the Closing Date Buyer
shall take all steps necessary to cause the Company and each Company
Subsidiary to forthwith cease all use, in any medium, that states or
implies that the Company or such Company Subsidiary is an Affiliate of
Seller; PROVIDED, HOWEVER, that Buyer shall take all steps necessary
to cause the packaging materials, catalogs and printed promotional
materials containing the logo set forth on SCHEDULE 7.07 that are used
by the Company or the Company Subsidiaries on and after the 30th day
after the Closing Date and prior to the end of the Transition Period,
to bear a sticker or other clear notification stating that the Company
and the Company Subsidiaries are not affiliated with Seller.
15. Except as expressly provided herein, all terms of the Stock
Purchase Agreement are ratified and confirmed.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their respective authorized officers as of the day and year
first above written.
AFTERMARKET TECHNOLOGY CORP.
By: /s/ Joseph Salamunovich
------------------------------------
Joseph Salamunovich, Vice President
ATCDG ACQUISITION CORP., INC.
By: /s/ Robert Fitzsimmons
------------------------------------
Robert Fitzsimmons, President