EXHIBIT 2.2
AMENDMENT NUMBER ONE TO ASSET PURCHASE AGREEMENT
This Amendment Number One to Asset Purchase Agreement (this "Amendment") is
entered into as of May 19, 2003, by and among Encompass Services Corporation
(the "Company"), a Texas corporation, the Subsidiaries of the Company owning
Purchased Assets, which are named on the signature pages hereto (the "Selling
Subsidiaries"), and Residential Acquisition Corp. (the "Buyer"), a Delaware
corporation.
R E C I T A L S
WHEREAS, the Company, Selling Subsidiaries and Buyer are parties to that
certain Asset Purchase Agreement, dated as of May 7, 2003 (the "Agreement"); and
WHEREAS, the Company, Selling Subsidiaries and Buyer desire to amend the
Agreement as provided for and on the conditions herein;
NOW, THEREFORE, the Company, Selling Subsidiaries and Buyer hereby amend
certain provisions of the Agreement as follows:
1. DEFINITIONS. All initially capitalized terms used in this Amendment
but not otherwise defined herein shall have the meanings given to them in the
Agreement.
2. AMENDMENTS. Section 6.10 of the Agreement is hereby amended and
restated in its entirety to read as follows:
"6.10 Waiver and Release.
(a) Sellers agree that effective as of the Closing Date, the Sellers
and their Affiliates that are subject to the Chapter 11 Cases and their
successors (the "Debtors") waive and release and shall be permanently
enjoined from any prosecution or attempted prosecution of any and all
claims, obligations, rights, causes of action or liabilities, whether known
or unknown, foreseen or unforeseen, existing or hereafter arising, which
the Debtors have or may have against any Transferred Employee, Xxxxxx Xxxx
and Xxxx Xxxxx (each a "Covered Person" and collectively the "Covered
Persons") and each of their respective attorneys, financial advisors and
property; provided, however, that the foregoing will not operate as a
waiver of, or release from, (i) any cause of action arising out of an
express contractual obligation owing by any such Covered Person to the
Debtors, or (ii) any cause of action arising out of the willful misconduct
or gross negligence of such Covered Person in connection with, related to,
or arising out of the administration of the Chapter 11 Cases, the pursuit
of confirmation of the Plan, the consummation of the Plan, the
administration of the Plan, or the property to be distributed under the
Plan.
(b) Sellers further agree than any Order of the Bankruptcy Court
(whether Confirmation Order, Alternate Order or other Order) authorizing
and approving the sale of the Purchased Assets and the consummation of the
transactions contemplated by this Agreement shall waive and release (i) any
and all Covered Persons and their respective attorneys, financial advisors
and property and (ii) Wellspring and each of its present or
former members, officers, directors, agents, financial advisors, attorneys,
employees, partners and representatives and their respective property, in
each case on the same terms and conditions as set forth in Section 13.7 of
the Plan."
3. REPRESENTATIONS AND WARRANTIES. Each of the Sellers and Buyer
represent and warrant and agree that (i) it has the requisite power to enter
into, execute and perform all obligations under this Amendment (ii) the
execution, delivery and performance hereof are within its powers, are not in
contravention of the terms of any of its Organizational Documents and have been
duly authorized by all necessary board, stockholder and member action of it.
4. MISCELLANEOUS. If any term or provision of this Amendment is
determined to be invalid, illegal or unenforceable by any Governmental Entity,
the remaining provisions of this Amendment to the extent permitted by Law shall
remain in full force and effect provided that the essential terms and conditions
of this Amendment remain valid, binding and enforceable. Such Government Entity
shall have the power to reduce the scope of any offending provision, to delete
specific words or phrases or to replace any invalid or unenforceable term or
provision with a term or provision that comes closest to expressing the
intention of the invalid or unenforceable term or provision. In event that such
Governmental Entity does not cure such offending term or provision, the parties
agree to negotiate in good faith to modify this Amendment to fulfill as closely
as possible the original intents and purposes hereof. To the extent permitted by
Law, the parties hereby to the same extent waive any provision of Law that
renders any provision hereof prohibited or unenforceable in any respect. THIS
AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE BANKRUPTCY
CODE AND, TO THE EXTENT NOT INCONSISTENT WITH THE BANKRUPTCY CODE, THE INTERNAL
LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR
CONFLICTING PROVISION OR RULE (WHETHER OF THE STATE OF NEW YORK OR ANY OTHER
JURISDICTION) THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION OTHER THAN NEW YORK
TO BE APPLIED. IN FURTHERANCE OF THE FOREGOING, THE LAW OF NEW YORK WILL CONTROL
THE INTERPRETATION AND CONSTRUCTION OF THIS AGREEMENT AND THE TRANSACTION
DOCUMENTS, EVEN IF UNDER SUCH JURISDICTION'S CHOICE OF LAW OR CONFLICT OF LAW
ANALYSIS, THE SUBSTANTIVE LAW OF SOME OTHER JURISDICTION WOULD ORDINARILY APPLY.
5. LIMITED EFFECT. In the event of a conflict between the terms and
provisions of this Amendment and the terms and provisions of the Agreement, the
terms and provisions of this Amendment shall govern. In all other respects, the
Agreement, as amended, modified, and supplemented hereby, shall remain in full
force and effect.
6. COUNTERPARTS; EFFECTIVENESS. This Amendment may be executed in any
number of counterparts and by different parties on separate counterparts, each
of which when so executed and delivered shall be deemed to be an original. All
such counterparts, taken together, shall constitute but one and the same
Amendment. This Amendment shall become effective upon the execution of a
counterpart of this Amendment by each of the parties hereto.
2
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first set forth above.
BUYER:
RESIDENTIAL ACQUISITION CORP.
By: /s/ Xxxxxx Cascade
------------------------------------
Name: Xxxxxx Cascade
Title: Vice President
COMPANY:
ENCOMPASS SERVICES CORPORATION
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President - Treasurer
SELLING SUBSIDIARIES:
XX XXXX, INC.
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President and Secretary
A-ABC APPLIANCE, INC.
By: /s/ Xxxx X. Xxxxx
-------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President and Secretary
A-ABC SERVICES, INC.
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President and Secretary
AIRTRON OF CENTRAL FLORIDA, INC.
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President and Secretary
AIRTRON, INC.
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President and Secretary
ENCOMPASS RESIDENTIAL SERVICES OF
HOUSTON, INC.
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President and Secretary
XXXXX SERVICES, INC.
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President and Secretary
HALLMARK AIR CONDITIONING, INC.
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President and Secretary
K & N PLUMBING, HEATING AND AIR
CONDITIONING, INC.
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President and Secretary
MASTERS, INC.
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President and Secretary
XXXX X. XXXXX CO., INC.
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President and Secretary
VAN'S COMFORTEMP AIR CONDITIONING INC.
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President and Secretary
XXXXXXX & SONS, INC.
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President and Secretary
XXXXXX REFRIGERATION, AIR CONDITIONING
& HEATING, INC.
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President and Secretary
