**EXHIBIT10.40         **

CONFORMED COPY

 

THIS AMENDMENT NO. 4 (this “Amendment”) to the StockPurchase Agreement dated as of September 1, 2000 (the “Stock PurchaseAgreement”) by and between ATCDG Acquisition Corp., Inc. (“Acquisition Corp.”)and Aftermarket Technology Corp. (“Seller”) is entered into December 28, 2001by and between ATC Distribution Group, Inc. (the “Company”) (as successor bymerger to Acquisition Corp.) and Seller.

 

WHEREAS, the Companyissued 8,650 shares of its Series B Preferred Stock, par value $0.01 per share(the “Shares”), to Seller in connection with the acquisition of the Companyfrom Seller on October 27, 2001, in accordance with the terms of the StockPurchase Agreement;

WHEREAS, pursuant to theStock Purchase Agreement of even date herewith by and between ATCDG HoldingsCorp., Inc. (“Holdings”) and Seller, Seller is selling, and Holdings ispurchasing, all of the Shares (the “Purchase”);

WHEREAS, in connection with the Purchase, Seller andthe Company desire to amend the Stock Purchase Agreement to account for thePurchase;

 

NOW, THEREFORE, in consideration of the promises,terms and conditions set forth herein, and for other good and valuableconsideration, the receipt and sufficiency of which are hereby acknowledged,and intending to be legally bound, the parties hereto agree as follows:

 

 

### 1.             Amendmentand Restatement of Section 9.01(c)(i). Section 9.01(c)(i) of the Stock Purchase Agreement will be amended andrestated in its entirety to read as follows:

“Notwithstanding anything to the contrary provided inthis Agreement, except as provided in Section 9.01(c)(ii), the aggregateliability of Seller under Section 9.01(c)(i), (iv) and (v) shall not exceed$12,000,000 in cash (the “Cash Cap”). Indemnification payments by Seller under Section 9.01(c)(i), (iv) and(v) shall be paid by means of draws against the Letter of Credit, which shallbe deemed to be a payment against the Cash Cap on a dollar-for-dollar basis,until the earlier to occur of (A) the exhaustion of the aggregate amount of theLetter of Credit by such draws or (B) the expiration or termination of theLetter of Credit in accordance with its terms. Subsequent to the earlier to occur of events (A) or (B) in the precedingsentence, indemnity payments by Seller under Section 9.01(c)(i), (iv) and (v)shall be made by Seller, until the remaining amount of the Cash Cap shall havebeen exhausted.”

 

 

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### 2.             Removal of References to the term “Stock Cap” fromthe Agreement.

#### a.             The line containing the term “Stock Cap” and thereference to “Section 9.01(a)” shall be deleted from Section 1.02 of the StockPurchase Agreement.

#### b.             Section9.01(c)(ii) of the Stock Purchase Agreement shall be amended and restated inits entirety to read as follows:

“Notwithstanding the provisions of Section 9.01(c)(i): (A) theUnlimited Claims and claims for Damages of Buyer Indemnitees resulting fromliabilities and obligations described in Section 9.01(a)(iii) shall not besubject to any such maximum cap on the indemnification obligation of Seller and(B) indemnification payments by Seller in respect of the Unlimited Claims andclaims for Damages of Buyer Indemnitees resulting from the liabilities andobligations described in Section 9.01(a)(iii) shall not be considered orcounted in applying any of the provisions of Section 9.01(c)(i) regardingcalculation of the Cash Cap.”

#### c.             The first paragraph of Section9.04(d)(iv) of the Stock Purchase Agreement (i.e., the paragraph up to Section9.04(d)(iv)(x)) shall be amended and restated in its entirety to read asfollows:

“the IndemnifyingParties covenant that they will pay, as appropriate: (A) the portion of theProposed Settlement Amount that both (1) exceeds the Aggregate Basket, ifapplicable to Indemnitee and such claim or Proceeding, taking into account allprevious Damages that Buyer and Seller reasonably agree have been incurred byBuyer Indemnitees and would have been indemnified pursuant to Section 9.01(a),but for the provisions of Section 9.01(b), and (2) is less than the remainingportion of the Cash Cap, if applicable to Indemnitee and such claim orProceeding, taking into account all previous indemnity payments by theIndemnifying Parties pursuant to Sections 9.01(a)(i), (iv) and (v) (the portionof the Proposed Settlement Amount that satisfies both clause (1) and clause(2), above, is the “Indemnifiable Amount”), if the Indemnifiable Amount exceedsthe remaining portion of the Proposed Settlement Amount (the “UnindemnifiableAmount”); or (B) one-half of the Proposed Settlement Amount (the “HalfAmount”), if the Unindemnifiable Amount equals or exceeds the IndemnifiableAmount,

then the liability of the Indemnifying Parties with respect to suchclaim or Proceeding shall be determined as follows:”

#### d.             Section9.04(g)(x) of the Stock Purchase Agreement shall be amended and restated in itsentirety to read as follows:

“if the amount of such final judgment, arbitrationorder or settlement payable by the Buyer Indemnitees (the “Ultimate Amount”) isless than or equal to the remaining portion of the Cash Cap, taking intoaccount all 

 

 

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previous indemnity payments by Seller pursuant toSections 9.01(a)(i), (iv) and (v) (the “Unused Cap”), the Seller’s liabilityunder this Article IX with respect to such claim or Proceeding shall equal thegreater of (1) the portion of the Ultimate Amount for which Seller would beliable pursuant to this Article IX (including, without limitation, Section9.01(b), taking into account all previous Damages that Buyer and Sellerreasonably agree have been incurred by Buyer Indemnitees and would have beenindemnified pursuant to Section 9.01(a), but for the provisions of Section9.01(b)) and (2) one-half of the Ultimate Amount; and”

### 3.             Statusof Agreement.  Except as expresslyprovided in this Amendment, in Amendment No. 1 dated October 20, 2000, inAmendment to Stock Purchase Agreement dated October 27, 2000, in Amendment No.2 to Stock Purchase Agreement dated May 25, 2001 and in Amendment No. 3 toStock Purchase Agreement dated October 19, 2001, all of the terms andconditions of the Stock Purchase Agreement remain in full force and effect andfully binding upon and enforceable against the parties thereto.

### 4.             Miscellaneous.  This Amendment may be executed in two (2) ormore counterparts, each of which shall be deemed an original, but all of whichshall constitute one and the same instrument. This Amendment shall be binding upon and inure to the benefit of each ofthe parties hereto, and their respective successors, assigns and legalrepresentatives.  This Amendment may beamended or modified only by a written instrument executed by the partieshereto.  With respect to the parties’rights and obligations under this Amendment, this Amendment shall be governed,construed and enforced in accordance with the laws of the State of New York,without regard to any state’s or jurisdiction’s choice of laws principles tothe contrary.  The headings of the sectionsin this Amendment are for reference purposes only and shall not affect themeaning or interpretation of this Amendment.

 

 

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IN WITNESS WHEREOF, the parties hereto have causedthis Amendment to be duly executed by their respective authorized officers asof the day and year first above written.

 
| AFTERMARKET  TECHNOLOGY CORP. |
|-------------------------------|
|                          |   |
|                          |   |
| By:                           | /s/  Barry C. Kohn |
|                          | Name:  Barry C. Kohn |
|                          | Title:  Chief Financial Officer |
|                          |   |
|                          |   |
| ATC  DISTRIBUTION GROUP, INC. |
|                          |   |
|                          |   |
| By:                           | /s/  Robert Fitzsimmons |
|                          | Name:  Robert Fitzsimmons |
|                          | Title:  Vice President |

 

 

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