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EXHIBIT 2.2
FIRST AMENDMENT TO PURCHASE AGREEMENT
This First Amendment to Purchase Agreement, dated July 24, 1998 (this
"Amendment"), is between and among Adistra, LLC, a Minnesota limited liability
company ("Adistra"), Gage Marketing Group, LLC, a Minnesota limited liability
company ("Gage"), the members of Adistra (the "Selling Members") and
Xxxxxxxxxxx, Inc., a Georgia corporation ("Buyer") as successor in interest to
AHL Services, Inc., a Georgia corporation ("AHL"):
BACKGROUND
A. AHL, Adistra, Gage and the Selling Members have executed and
delivered the Purchase Agreement, dated as of June 17, 1998 (the "Purchase
Agreement").
X. XXX assigned all of its right, title and interest in and to
the Purchase Agreement to Buyer pursuant to that certain Instrument of
Assignment and Delegation of even date herewith.
C. The Buyer and the Sellers desire to amend the Purchase
Agreement.
D. Pursuant to Section 15.13 of the Purchase Agreement, each of
the Selling Members appointed Xx. Xxxxx X. Xxxx as the Members' Representative,
with full power and authority to act as such Selling Member's representative,
attorney-in-fact and agent, to execute and deliver and to receive, on behalf of
such Selling Member, all amendments to the Purchase Agreement, among other
things.
AGREEMENTS
1. Definitions. Any capitalized term not otherwise defined in
this Amendment shall have the same meaning as in the Purchase Agreement.
2. Amendment of Section 3.2(b). Section 3.2(b) of the Purchase
Agreement is hereby amended by (i) the deletion of subclause (ii) of clause (B)
thereof and the substitution therefor of the following: "(ii) the average
closing price per share of the Buyer Common Stock on the NASDAQ National Market
for the trading days during the period commencing on the date hereof [June 17,
1998] and ending on July 15, 1998 and" and (ii) the addition of the following
sentences to the end of such section:
Buyer shall not be required to issue any fractional shares of
Buyer Common Stock in connection with the Closing. If any
Selling Member would otherwise be entitled to receive a
fractional share of Buyer Common
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Stock, such fractional share shall be settled by a cash
payment therefor, which cash settlement shall be based upon
the average closing price per share of the Buyer Common Stock
on the NASDAQ National Market for the trading days during the
period commencing on the date hereof [June 17, 1998] and
ending on July 15, 1998. Such cash payment shall be included
with the Closing Cash Payment paid to such Selling Member.
3. Establishment of Closing Date. Notwithstanding the provisions
of Section 5.1 of the Purchase Agreement, the parties agree that the Closing
shall be held on July 24, 1998.
4. Amendment of Section 10.3. (A) Section 10.3 of the Purchase
Agreement is hereby amended by the addition of the following to the end of
Section 10.3(a):
Company and Buyer have requested and Gage has agreed, to
provide certain benefits under employee welfare benefit plans
(as defined in Section 3(1) of ERISA) maintained by Gage to
employees (and their eligible dependents) who are transferred
to the Company and who participated in such plans prior to the
Closing Date. Company agrees that it shall reimburse Gage for
all costs and expenses to provide such benefits including,
without limitation, benefit payments, stop loss and other
insurance premiums, and administrative expenses incurred
directly or indirectly by Gage for the provision of such
post-Closing benefits, provided that such costs and expenses
are related to coverages and claims incurred during the period
commencing on the Closing Date and ending on the date that the
participation in the Gage employee welfare benefit plans ends,
which ending date shall be established by the mutual agreement
of Gage and the Company, but which shall not be later than
August 31, 1998. Gage agrees that any such benefits shall,
solely for the purposes of satisfying the Company's obligation
as set forth in this Section 10.3(a), be treated as benefits
provided by the Company, provided reimbursement for the
associated costs and expenses is paid promptly following
notice by Gage to Company thereof.
(B) Section 10.3 of the Purchase Agreement is hereby further
amended by the deletion of the first two sentences of Section 10.3(b) and the
substitution therefor of the following:
Gage shall transfer the account balances and assets
representing such transferred account balances in the Gage
Marketing Group Employees' Savings and Investment Plan (the
"Gage Plan") of all participating Gage employees transferred
to the Company as part of such employee transfer to a Code
Section 401(k) plan (the "401(k) Plan") of the Company or of
the Buyer as directed by Buyer. Such plan transfer shall be
made in the form of cash or other assets acceptable to the
trustee of the 401(k) Plan, and shall satisfy the requirements
of Section 411(d)(6) and 414(l) of the
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Code. The 401(k) Plan shall include a vesting schedule that is
identical to the vesting schedule in the Gage Plan as of the
Closing Date, and each transferred employee's service which is
credited under the Gage Plan shall be credited as service
under the 401(k) Plan for all purposes, including determining
each transferred employee's vested interest in: (i) his
account that represents employer contributions transferred
from the Gage Plan, and (ii) employer contributions made on
his behalf to the 401(k) Plan. The sponsor of the 401(k) Plan
shall assume all responsibilities for the transferred accounts
and assets as of the date of such transfer from the Gage Plan
to the 401(k) Plan.
5. Amendment of Section 10.7. Section 10.7 of the Purchase
Agreement is hereby amended by the deletion therefrom of the phrase reading
"which shall be listed on a schedule delivered by the Selling Members to the
Buyer at Closing" and the substitution therefor of a phrase reading "which shall
be listed on a schedule delivered by the Selling Members to the Buyer
simultaneously with the delivery of the Final Closing Balance Sheet".
6. Amendment of Section 12.6. Section 12.6 of the Purchase
Agreement is hereby amended by the addition of the following sentence to the end
of such section:
Furthermore, Gage shall have transferred any equity interests
in Gage-Mexico owned by it to the Company.
7. Effect on Purchase Agreement. Except as expressly modified by
this Amendment, the Parties ratify and confirm the Purchase Agreement in all
respects.
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This Amendment has been executed and delivered by the Buyer and by the
Members' Representative, on behalf of the Selling Members, on July 24, 1998.
XXXXXXXXXXX, INC.
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Chief Financial Officer
REVOCABLE TRUST OF
XXXXX X. XXXX
REVOCABLE TRUST OF
XXXXXXX X. XXXX
XXXXXXXXX X. XXXX
XXXXXXXX X. XXXX
XXXXX X. XXXX
XXXXXXX X. XXXX
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx, as the Members'
Representative,
pursuant to Section 15.13
of the Purchase Agreement
GAGE MARKETING GROUP, LLC
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Chief Executive Officer
ADISTRA, LLC
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Chief Executive Officer
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