EXHIBIT 10.33
AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT (this "Amendment")
is made and entered into this day of May, 2002 ("Effective Date"), by and
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among MWL Acquisition Corp., a Delaware corporation ("Purchaser"), Mail-Well
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I Corporation, a Delaware corporation ("Seller"), and Mail-Well, Inc., a
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Colorado corporation ("Parent").
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WITNESSETH:
WHEREAS, Purchaser, Seller and Parent have entered into that
certain Stock Purchase Agreement dated May 6, 2002 (the "Agreement"); and
WHEREAS, Purchaser, Seller and Parent desire to amend the Stock
Purchase Agreement pursuant to this Amendment.
NOW, THEREFORE, in consideration of the mutual covenants,
representations and warranties made in the Agreement and herein and of the
mutual benefits to be derived herefrom, Purchaser, Seller and Parent agree
as follows:
1. The first "WHEREAS" clause of the Agreement shall be amended by
changing "500" to "20".
2. Section 1.1 of the Agreement shall be amended by deleting the
definition of "Grossed-Up Basis" in its entirety and adding the following
new definition:
""Note" has the meaning set forth in Section 4.19(jj)."
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3. Section 2.2 of the Agreement shall be amended by replacing the
first sentence of clause (a) in its entirety with the following:
"(a) The Purchaser shall pay at Closing an aggregate amount for
the Shares ("Initial Purchase Price") equal to (i) $75,000,000
which shall be allocated to US Label Shares in the amount of $48.1
million; Canada Label Shares in the amount of $17.5 million; and UK
Label Shares in the amount of $9.4 million ("Purchase Price
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Allocation") minus (ii) the Initial Purchase Price Adjustment."
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4. Section 2.2 of the Agreement shall be amended by adding the
following immediately prior to "excluding" inside the first parentheses in
clause (i) of the definition of "Initial Purchase Price Adjustment":
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"including indebtedness under the Note but . . ."
5. Section 2.2(a) of the Agreement shall be amended by replacing the
definition of "Working Capital Objective" in its entirety with the
following:
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"means the sum of $20,500,000."
6. Section 2.4(b) of the Agreement shall be amended by removing the
last sentence in its entirety and replacing it with the following:
"The Inventory shall be valued in accordance with GAAP consistent
with past practice based on a physical count taken by Seller and
observed by Purchaser immediately prior to the Closing Date."
7. Section 4.19(j) of the Agreement shall be amended by removing the
existing first sentence of such section in its entirety.
8. Section 4.19(l) of the Agreement shall be amended by replacing the
existing clause (A) of such section in its entirety with the following:
"(A) as a result of a change in method of accounting for a
Pre-Closing Period, to include any adverse adjustment under Section
481 of the Code or other similar adverse adjustment in income for
any Post-Closing Period, . . ."
9. Section 4.19(ii) of the Agreement shall be amended by replacing
such Section in its entirety with the following:
"(ii) A resolution of the board of directors of Canada Label
dated May 15, 2002 has been passed adding $16,125,111 to stated
capital (also known as paid-up capital) account maintained by
Canada Label pursuant to the Companies Act (Nova Scotia) in respect
of the issuance of the Additional Canada Label Shares and during
the period from and after May 15, 2002 to Closing Canada Label
shall not have reduced its stated capital or paid up capital or
returned any paid up capital to its shareholders and shall not have
authorized any such reduction or return."
10. Section 4.19(jj) of the Agreement shall be amended by replacing
such Section in its entirety with the following:
"(jj) Prior to the time of Closing (i) Seller shall (A) subscribe
for 99 additional common shares in the capital of Canada Label (the
"Additional Canada Label Shares") the purchase price of
$16,125,111, and in the resolution issuing the Additional Canada
Label Shares, the board of directors of Canada Label will add the
entire amount to paid-up capital and (B) advance $15,500,000 to
Canada Label as intercompany debt due on the earlier of demand or
May 1, 2005 bearing simple interest at the rate of 3.21% per annum,
which debt shall be evidenced by a promissory note ("Note") issued
by Canada Label to Seller; and (ii) the aggregate proceeds of such
subscription and such advance shall be
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used by Canada Label, prior to the Closing, to repay its other
obligations owing to Related Parties, such that at Closing Canada
Label shall have no Intercompany Accounts to any Related Party
other than the Note."
11. A new Section 4.19(kk) shall be added as follows:
"(kk) Lancer Label. As a result of or in connection with the
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pre-closing transactions relating to Lancer Label Canada, Inc.
described at Section 5.4 hereof, no Target will incur any Taxes or
Losses."
12. Section 4.29(b) of the Agreement shall be amended by replacing the
reference to "C$40 million . . ." with "C$400 million. . .".
13. Section 5.4 of the Agreement shall be amended by adding the
following sentence immediately after the existing sentence:
"The parties acknowledge and agree that prior to the Closing,
Seller will (a) cause Lancer Label Canada, Inc. to pay off all
Intercompany Accounts to any Target, and (b) will cause the Targets
to convey all of the outstanding shares of capital stock of Lancer
Label Canada, Inc. to Supremex, Inc. or another Affiliate of Seller
(other than a Target).
14. Section 5.10(a) of the Agreement shall be amended by deleting the
phrase "on a Grossed-Up Basis" and by adding the following immediately after
the word "Target" at the end of clause (A) of such section:
"or was not included as a Tax Liability in Final Working
Capital . . ."
15. Section 5.11(a) of the Agreement shall be amended by adding the
following immediately prior to the existing fourth sentence:
"Except as set forth in Section 5.11(c), . . . ."
16. Section 5.11(b) of the Agreement shall be amended by replacing the
existing clause (i) in its entirety with the following:
"(i) assume and remain solely responsible for, and shall
reimburse and indemnify Purchaser Indemnitees for, any and all
Liabilities under each benefit plan maintained prior to the Closing
Date by or for the benefit of the current or former employees of
Seller or its ERISA Affiliates . . ."
17. Section 5.11(c) of the Agreement shall be replaced in its entirety
with the following:
"(c) Following the Closing Date, Purchaser shall recognize
Target's employees' years
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of service through the Closing Date for purposes of eligibility and
vesting under the benefit plans provided to Target's employees
following the Closing Date. Purchaser shall, and shall cause Target
to, enroll all of Target's employees in medical, dental, vision,
employee assistance, life and long-term disability benefit
coverages commencing June 1, 2002, and such coverages shall not
impose any limits on or denials of coverage based on pre-existing
medical conditions of such employees except to the extent that any
such employee was limited from or denied coverage for a
pre-existing medical condition immediately prior to June 1, 2002.
Prior to June 1, 2002, Purchaser shall not, and shall cause Target
to not, terminate the employment of any employees of Target covered
under any Target Benefit Plan as described in Section 5.11(a)
above, and shall reimburse and indemnify Seller Indemnitees for any
and all Liabilities resulting from any termination in violation of
this covenant, including those arising under obligations for
medical continuation coverage under Code Section 4980B."
18. Section 5.11(g) of the Agreement shall be amended by adding the
following at the end of the existing last paragraph of such section:
"Purchaser will and will cause its representatives, including the
directors of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Pension Trustees Limited, to use their
best commercial efforts to effect the provisions of this Section
5.11(g)."
19. Section 5.14 of the Agreement shall be amended by adding the
following new sentence to the end of the paragraph:
"At the Closing, Purchaser and Seller shall enter into a License
Agreement concerning the "Mail-Well" name and marks in
substantially the form attached hereto as Exhibit I."
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20. A new Section 5.20 shall be added as follows:
"5.20. UK Statutory Accounts. Purchaser shall and shall cause UK
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Label to retain Deloitte & Touche as statutory auditors of the UK
Entities for purposes of finalizing and filing the statutory
accounts of the UK Entities for fiscal year 2000 and shall cause
such accounts to be filed for all subsequent periods on a timely
basis."
21. A new Section 5.21 shall be added as follows:
"5.21. Repayment of Note. Purchaser shall cause Canada Label to pay
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to Seller at the Closing all principal and accrued interest
outstanding on the Note from funds provided or arranged by
Purchaser and not by Seller or Canada Label."
22. Section 6.12 of the Agreement shall be amended by adding the
following at the end of such Section:
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"Seller hereby irrevocably assigns to Purchaser, effective
immediately upon the Closing, the right to all proceeds under the
KEDFA Bond, including all unpaid interest up to the Closing Date."
23. The following shall be added as a new Section 9.6(f) to the
Agreement:
"(f) Seller shall not be liable for any Losses suffered by a
Purchaser Indemnitee related to Taxes that arise as a result of
Purchaser or its Affiliates, except as required by applicable law,
taking a position on its Tax Returns which is contrary to the
manner in which Seller or Targets treated an item or transaction
giving rise to Taxes prior to the Closing, including, but not
limited to, with respect to the Additional Canada Label Shares."
24. Words, terms or phrases that begin with initial capital letters
used, but not defined specifically, in this Amendment, shall have the
meanings ascribed to such words, terms or phrases in the Agreement.
25. Except as otherwise specifically amended pursuant to the provisions
of this Amendment, all terms and provisions of the Agreement shall remain in
full force and effect in accordance with its terms.
26. This Amendment shall be governed by, and construed in accordance
with, the laws of the State of Colorado.
27. This Agreement may be executed in two (2) or more counterparts, all
of which shall be considered one and the same agreement, and shall become
effective when one counterpart has been signed by each party and delivered
to the other party hereto.
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IN WITNESS WHEREOF, each party hereto has caused this Amendment to
be executed on its behalf by its duly authorized officer, all as of the day
and year first above written.
PURCHASER:
MWL ACQUISITION CORP.
By:
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Name:
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Title:
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SELLER:
MAIL-WELL I CORPORATION
By:
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Name:
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Title:
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PARENT:
MAIL-WELL, INC.
By:
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Name:
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Title:
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