AMENDMENT NO. 1 TO
STOCK PURCHASE AGREEMENT
This AMENDMENT NO. 1 (this "Amendment"), dated as of February 28,
1998, amends the Stock Purchase Agreement dated as of December 20, 1997 (the
"Stock Purchase Agreement"), by and among AT&T Corp., a New York corporation
("AT&T" or the "Seller"), American Transtech Inc., a Delaware corporation (the
"Company"), and MATRIXX Marketing Inc., an Ohio corporation (the "Buyer").
Capitalized terms used but not defined herein have the meanings set forth in the
Stock Purchase Agreement.
1. For purposes of clarification, the parties agree that the
representations and warranties of the Seller set forth in Article II of the
Stock Purchase Agreement are intended to encompass the Business as a whole,
including, to the extent applicable, the Canadian Business. Accordingly:
(a) the representations and warranties set forth in Section 2.1 of the
Stock Purchase Agreement shall apply to ACE with respect to the General
Conveyance and Assumption Agreement and any other agreements that it will
enter into with Matrixx Marketing Customer Care Canada Inc. ("Matrixx
Canada") in connection with the transactions contemplated by the Stock
Purchase Agreement (the "Canada Agreements");
(b) the representations and warranties set forth in Section 2.2 of the
Stock Purchase Agreement shall apply with respect to ACE and its ownership
of the Canadian Assets;
(c) references to the Company set forth in Sections 2.6(ii) and
2.6(iii) of the Stock Purchase Agreement shall be deemed to include ACE,
and the reference to the U.S. Business in Section 2.6(ii) of the Stock
Purchase Agreement shall be deemed to be a reference to the Business
(including the Canadian Business);
(d) the Material Contracts referred to in Section 2.7 of the Stock
Purchase Agreement shall include Contracts of the Canadian Business that
would have come within the definition of Material Contract set forth in
Section 2.7 of the Stock Purchase Agreement but for the fact that they are
Contracts to which ACE rather than the Company is a party or is bound;
(e) references in Section 2.8 of the Stock Purchase Agreement to the
Company shall be deemed to include ACE and the consequences of its
execution, delivery and performance of the Canada Agreements;
(f) references in Sections 2.9, 2.10, 2.11, 2.12, 2.15(a)(ii) and 2.16
of the Stock Purchase Agreement to the Company shall be deemed to include
ACE or the Canadian Business, as the context requires, references in
Sections 2.9, 2.11 and 2.15(a)(ii) to the Seller shall be deemed to include
ACE, and references to CERCLA or similar state laws shall be deemed to
include similar Canadian laws; and
(g) all factual matters set forth in the Canada Agreements and the
Employee Matters Agreement (including the Schedules to such agreements)
shall be deemed to be disclosed in any Section of the Disclosure Schedules
to the Stock Purchase Agreement where such disclosure might be relevant for
purposes of the representations and warranties relating to ACE and the
Canadian Business.
2. Similarly, the parties agree that the representations and warranties of
the Buyer set forth in Article III of the Stock Purchase Agreement are intended
to apply to Matrixx Canada, to the extent applicable, with respect to its
execution and performance of the Canada Agreements. Accordingly the
representations and warranties set forth in Sections 3.1, 3.2, 3.3 and 3.4 of
the Stock Purchase Agreement shall apply to Matrixx Canada with respect to the
execution and performance of the Canada Agreements.
3. (a) References in Sections 4.1(b) and (e) of the Stock Purchase
Agreement to the Company shall be deemed to include ACE in respect of the
Canadian Business. Buyer hereby approves the amendment dated February 27, 1998
to the agreement between ACE and Staffmax Inc.
(b) Section 4.7 of the Stock Purchase Agreement shall apply to ACE in
respect of the Canadian Business (it being understood that this shall not affect
the obligations of Buyer or Matrixx Canada with respect to any liabilities or
any other obligations set forth in, or for which survival is expressly provided
in, the Canada Agreements, the Stock Purchase Agreement or any Ancillary
Agreements).
(c) Section 4.9 of the Stock Purchase Agreement shall apply in
respect of any representations, warranties, covenants, conditions and
agreements contained in the Canada Agreements.
4. Section 7.1 of the Stock Purchase Agreement is hereby amended to
provide that, for all purposes, the Closing shall be deemed to have occurred at
11:59 p.m. on the Closing Date.
5. Section 10.1(a) is hereby amended to provide that Seller and Buyer
shall indemnify the other and the other's Indemnified Group in respect of Losses
arising out of or resulting from any representations and warranties of ACE or
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Matrixx Canada, as applicable, contained in the Canada Agreements being untrue
as of the Closing Date or the material breach of any covenant or agreement of
ACE or Matrixx Canada, as applicable, contained in the Canada Agreements which
survives the Closing to the extent not waived by the other party thereto.
6. Section 12.11 of the Stock Purchase Agreement shall be deemed to refer
to the Canadian Assets as well as the Company Stock.
7. Seller and Buyer agree that the terms and conditions of the Lease
Agreement from the Company to AT&T Universal Card Services Corp. ("UCS") with
respect to a portion of 8000 Baymeadows Way, Jacksonville, Florida (the "UCS
Lease"), originally contemplated to become effective upon consummation of the
sale of UCS, will become operative on the Closing Date, and will remain in
effect until the originally contemplated Expiration Date set forth therein, or,
in the event the agreement for the sale of UCS (the "UCS Sale Agreement")
terminates without consummation of the sale of UCS, until the first anniversary
of the Closing Date. Until the first anniversary of the closing of the sale of
UCS, or, in the event the UCS Sale Agreement terminates without consummation of
the sale of UCS, until the first anniversary of the Closing Date, Seller will
pay to the Company a monthly payment equal to $38,250 less the monthly amount to
which the Company is entitled to be paid by UCS under the UCS Lease.
8. All workers' compensation claims that arose in the Business on or
before the Closing Date, and all liabilities arising from and attendant
obligations in connection with respective state laws for those workers'
compensation claims, will remain the sole responsibility of Seller. Buyer will
be responsible only for those workers' compensation claims that arise in the
Business after the Closing Date.
9. Seller agrees that, within ten business days following the Closing
Date, Seller will make a payment to the Company in the amount of $2.5 million.
Buyer will use this payment to establish a separate accrual account in such
amount to be used by Buyer to provide benefits to employees of the Business that
Buyer is not otherwise contractually obligated to provide. This accrual will
not, however, be reflected on the Closing Balance Sheet.
10. Seller agrees that, within ten business days following the Closing
Date, Seller will make a payment to the Company in the amount of $400,000 for
certain miscellaneous expenses incurred by the Company in connection with the
transactions contemplated by the Stock Purchase Agreement.
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11. The reference to "this Agreement" contained in Section 12.3 of the
Stock Purchase Agreement shall be deemed to include this Amendment No. 1.
12. As amended by this Amendment No. 1, all the terms of the Stock
Purchase Agreement shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties have caused this Amendment No. 1 to be
duly executed and delivered by their proper and duly authorized officers or
representatives.
MATRIXX MARKETING INC.
By: /s/ David F. Dougherty
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Name: David F. Dougherty
Title: President and Chief
Executive Officer
AT&T CORP.
By: /s/ Daniel E. Somers
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Name: Daniel E. Somers
Title: Senior Executive Vice
President and CFO
AMERICAN TRANSTECH INC.
By: /s/ Monica M. Mehan
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Name: Monica M. Mehan
Title: President
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