EXHIBIT 2.2
FIRST AMENDMENT
TO AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER (the "AMENDMENT") is
entered into as of June 19, 1998 by and among Century Acquisition Corporation, a
Delaware corporation ("INVESTOR"), Century Maintenance Supply, Inc., a Delaware
corporation (the "CORPORATION"), FS Equity Partners IV, L.P., a Delaware limited
partnership ("FSEP IV"), Xxxxxx X. Xxxxxxx (the "MAJOR SHAREHOLDER") and the
Selling Shareholders which are signatories to the Merger Agreement. Capitalized
terms used but not defined in this Amendment have the meaning given such terms
in the Merger Agreement (defined below).
RECITALS
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A. Investor, Corporation, Major Shareholder, and the other Selling
Shareholders entered into that certain Agreement and Plan of Merger dated as of
May 5, 1998 (the "MERGER AGREEMENT").
B. The parties now desire to amend the Merger Agreement to extend the
termination date.
NOW THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are acknowledged, the
undersigned agree as follows:
1. SECTION 2.4 of the Merger Agreement is hereby amended by deleting
clause (ii) thereof in its entirety and replacing with the following:
. . . (ii) authorize preferred stock for issuance, and create and
authorize the preferred stock (the "NEW PREFERRED STOCK"), which will
be authorized as "Blank Check" preferred, with the rights, preferences
and privileges in substantially the form as described in the term
sheet and subject to modification as set out therein (the "PREFERRED
STOCK TERM SHEET") attached as Exhibit B hereto, and . . .
2. SECTION 2.7(C) of the Merger Agreement is hereby amended by replacing,
in each place in SECTION 2.7(C) that it occurs, the number "$7,000,000" with
"$8,000,000".
3. The text of SECTION 2.7(G) of the Merger Agreement is hereby deleted
in its entirety.
4. The text of SECTION 2.7(H) of the Merger Agreement is hereby deleted
in its entirety.
5. SECTION 7.12 of the Merger Agreement is hereby amended by deleting the
last sentence and replacing it with the following:
In addition, at the closing of the purchase of the Option Shares, CAC
will provide a certificate, signed by its President, confirming that all of
the representations and warranties made by CAC in Article III of this
Agreement are true and correct as of the date of closing of the purchase of
the Option Shares. If FSEP IV exercises this Option, the Option Shares
shall be entitled to share in any claim for Specialty Losses or Indemnity
Losses.
6. SECTION 9.1(D) of the Merger Agreement is hereby deleted in its
entirety and replaced with the following:
(d) by Investor, on the one hand, or Corporation and Selling
Shareholders, on the other, if the Closing Date shall not have
occurred, other than through the failure of the party attempting to
terminate to fulfill their obligations hereunder, on or before the
expiration of 69 days from the date of this Agreement or such later
date agreed to in writing by
Corporation, Selling Shareholders and Investor; provided, however,
that such 69 day period shall automatically be extended for a period
of 15 days if the delay in the Closing Date relates to the closing of
the financing contemplated by the Commitment Letter and/or the sale of
the New Preferred Stock contemplated by Section 8.2(p) of this
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Agreement;
7. EXHIBIT A (Certificate of Merger) to the Merger Agreement is hereby
deleted and replaced with the EXHIBIT A to this Amendment.
8. EXHIBIT B (Term Sheet for Preferred Stock) to the Merger Agreement is
hereby amended by deleting "Century Acquisition Corporation" as the Issuer and
replacing it with "Century Maintenance Supply, Inc."
9. EXHIBIT C (Term Sheet for Warrants) to the Merger Agreement is hereby
deleted in its entirety.
10. EXHIBIT E (Term Sheet for Shareholders Agreements) to the Merger
Agreement is hereby amended by amending the "REGISTRATION RIGHTS" section to add
the following additional sentence at the end of that section:
The rights described in this paragraph shall apply to the common stock of
the Company held by FSEP IV or by Xxxxxxx. The registration rights
applicable to any preferred stock of the Company held by FSEP IV or by
Xxxxxxx will be governed by a separately negotiated agreement acceptable to
them.
11. EXHIBIT K (Amended and Restated Certificate of Incorporation) to the
Merger Agreement is hereby deleted and replaced with the EXHIBIT K to this
Amendment.
12. Conditions. This Amendment shall not be effective until it has been
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signed by or on behalf of Investor, Corporation, FSEP IV, Major Shareholder, and
Selling Shareholders.
13. Amendment. Except as affected by this Amendment, the Merger Agreement
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is unchanged and continues in full force and effect. All references to the
Merger Agreement shall refer to the Merger Agreement as amended by this
Amendment. This Amendment shall be binding upon and inure to the benefit of
each of the undersigned and their respective successors and permitted assigns.
14. Counterparts. This Amendment may be executed in two or more
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counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same amendment.
15. Governing Law. This Amendment shall be governed by and construed in
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accordance with the laws of the State of Delaware, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
16. Power of Attorney. Under Section 11.7 of the Merger Agreement, the
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Major Shareholder has a limited, irrevocable power of attorney to act as the
agent and attorney-in-fact for the Selling Shareholders for the sole purpose of
approving any amendments to, or waivers, of the Merger Agreement on behalf of
the Selling Shareholders, subject to the limitations set out in Section 11.7.
[SIGNATURES ON IMMEDIATELY FOLLOWING PAGES]
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The Amendment is executed as of the date set out in the preamble to this
Amendment.
CENTURY ACQUISITION CORPORATION
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
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Title: Vice President
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FS EQUITY PARTNERS IV, L.P., a Delaware limited
partnership
By: FS CAPITAL PARTNERS, L.L.C., its general
partner
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
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Title: Managing Member
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CENTURY MAINTENANCE SUPPLY, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Vice President
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CENTURY AIRCONDITIONING SUPPLY, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Vice President
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SELLING SHAREHOLDERS
Xxxxx X. Xxxxxx
Xxxx X. Xxxxxxx
Xxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxxxxx
R. Xxxxx Xxx
Xxxxxxx X. Xxxx
Xxxxxx X. Xxxxxx
Xxxxx X. Xxxxx
Xxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx, as Major Shareholder and on
behalf of each Selling Shareholder under the power
of attorney granted him by Section 11.7 of the
Merger Agreement
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