Exhibit 2.2
EXECUTION COPY
AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT
Reference is made to the Asset Purchase Agreement dated as of June 4, 2001
(the "Asset Purchase Agreement") by and among Amana Appliance Company, L.P., a
Texas limited partnership ("Seller"), Goodman Global Holdings, Inc., a Texas
corporation ("Global"), Maytag Corporation, a Delaware corporation ("Buyer"),
and Maytag Worldwide N.V., a Netherlands Antilles corporation ("Maytag
Worldwide"). Capitalized terms used but not defined herein have the meaning set
forth in the Asset Purchase Agreement.
WHEREAS, Seller, Buyer, Global and Maytag Worldwide desire to amend the
Asset Purchase Agreement and set forth certain other agreements and
understandings and desire that, except as set forth herein, the Asset Purchase
Agreement shall remain in full force and effect.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of what are hereby acknowledged, the undersigned hereby agree to
amend the Asset Purchase Agreement and otherwise agree as follows:
1. Article I is hereby amended as follows:
(a) The definition of "Closing Date Pro Forma Balance Sheet" is amended by
adding the following language at the end of such definition:
"and except that the Closing Date Pro Forma Balance Sheet shall include a
reserve of $5,200,000 for potential liabilities, costs and expenses related
to the Schedule 3.24 Issues."
(b) The definition of "Product Warranty Claims" is amended by adding the
following language at the end of such definition:
"or otherwise reflected in the Closing Date Pro Forma Balance Sheet."
(c) The following defined terms are added thereto:
"Schedule 3.24 Expenses" has the meaning specified in Section 5.22."
"Schedule 3.24 Issues" has the meaning specified in Section 3.24 of the
Disclosure Schedule."
2. The Disclosure Schedule is amended and restated, effective as of June 4,
2001, to read as set forth in Annex I hereto. The annexes attached to the
original Disclosure Schedule that was delivered by the undersigned at the time
of the execution of the Asset Purchase Agreement shall be deemed to be attached
to Annex I for all purposes, except in the
cases of Annexes A-1, A-2, A-3 and N, which shall be replaced in their entirety
by the comparably denominated annexes appended to Annex I hereto.
3. Buyer agrees to pay, on behalf of Seller, certain retention and
transaction-related bonuses and other amounts (and related employment and
withholding taxes and other deductions) to such former employees of Seller, and
in such amounts, as may be specified in a schedule or schedules to be delivered
by Seller to Buyer within 30 days after the Closing Date. The total amount of
such payments (including related employment and withholding taxes and other
deductions) shall be set forth as a liability on the Closing Date Pro Forma
Balance Sheet.
4. Article V is hereby amended by adding the following section:
5.22 Schedule 3.24 Issues. (a) Seller agrees to cooperate with Buyer in
addressing the Schedule 3.24 Issues and to furnish without charge to Buyer
such engineering and other assistance as Buyer may reasonably request in
connection therewith. Buyer agrees to consult with Seller regarding actions
taken by Buyer after the Closing to address the Schedule 3.24 Issues, it
being understood that all decisions with respect thereto, including
decisions with respect to notifications to and negotiations with
governmental and regulatory agencies and any proposed action to recall or
repair affected products, shall be made by Buyer in its commercially
reasonable discretion; provided that Buyer agrees to promptly provide to
the Consumer Product Safety Commission a full report of the facts
previously disclosed by Seller regarding the Schedule 3.24 Issues and to
seek "fast-track" treatment of any actions related thereto.
(b) Seller agrees to reimburse Buyer for 50% of all costs, expenses,
losses, liabilities and other damages incurred by Buyer and its Affiliates
in connection with Buyer's addressing of the Schedule 3.24 Issues
("Schedule 3.24 Expenses"), but only to the extent that the total amount of
Schedule 3.24 Expenses exceeds $10,400,000. Schedule 3.24 Expenses shall
include all costs (including direct labor costs for Buyer personnel),
expenses, losses, liabilities and other damages incurred by Buyer and its
Affiliates in connection with (i) notification of customers, consumers and
governmental and regulatory agencies, (ii) negotiations with or proceedings
instituted by any governmental or regulatory agencies, (iii) any repair or
return of recalled products and any replacement products or parts that may
be installed, (iv) engineering modifications to the product and production
facilities and (v) Product Warranty Claims and Product Liability Claims
that may be related to the Schedule 3.24 Issues.
(c) Within 45 days after the end of each calendar quarter in which Schedule
3.24 Expenses are incurred by Buyer and its Affiliates, Buyer will furnish
to Seller a statement setting forth in reasonable detail the Schedule 3.24
Expenses incurred in such period, together with reasonable documentation
supporting such Schedule 3.24 Expenses, and a calculation of the amount, if
any, owed to Buyer under this Section 5.22. All amounts
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owed under this Section 5.22 shall be paid by Seller within 30 days after
receipt of the applicable statement. Buyer will give Seller and its
counsel, accountants and other representatives full and free access, during
normal business hours and upon the giving of reasonable prior notice, to
its books and records relating to such Schedule 3.24 Expenses, and to its
employees, accountants, counsel and other representatives, all without
charge to the Seller, except for reimbursement of reasonable out-of-pocket
expenses.
(d) Notwithstanding anything in Section 7.2(f)(iii) to the contrary, the
liability of Seller Group under Section 7.2(a)(i) for any breach of this
Section 5.22 shall not take into account any Tax benefit inuring to the
Buyer in connection with the payment of any Schedule 3.24 Expenses.
(e) For the avoidance of doubt, the monetary limitations set forth in
Sections 7.2(f)(i) and the time limitations set forth in Section 7.2(g)(ii)
shall not apply to any indemnification for breach by Seller of its
obligations under Section 5.22.
5. Section 7.2(b)(ii)(E) is hereby amended and restated to read as follows:
"(E) except as provided in Sections 5.22 and 7.2(a)(ii)(E), any Product
Liability Claims or Schedule 3.24 Expenses relating to products of the
Business that were manufactured or purchased by Seller or its predecessors
on or prior to the Closing Date, other than Product Liability Claims
relating to products manufactured at any facility previously operated by
Former Owner or any of its Affiliates or predecessors and that is not
included in the Purchased Assets; and"
6. The introductory clause in Section 7.2(b)(ii)(F) is hereby amended to
read as follows:
"except as set forth in Sections 5.22 and 7.2(a)(ii)(E),"
7. Section 7.2(g)(ii) is hereby amended by replacing the reference to
"Section 7.2(a)" to "Section 7.1".
8. The defense of any Third Party Claim relating to the Schedule 3.24
Issues shall be governed by Section 7.2(c)(iii).
9. Buyer hereby acknowledges that nothing in Section 5.13(a)(i) will affect
Buyer's obligation under the second sentence of Section 5.13(c)(i).
10. The undersigned agree that the Estimated Change in Working Capital is
$5,237,000.
11. The undersigned agree that attached hereto as Annex II is the
Allocation Schedule.
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12. Notwithstanding any other provision of the Asset Purchase Agreement to
the contrary, the undersigned agree that all encumbrances reflected in the title
commitments incorporated as Annexes A-1, A-2 and A-3 to the amended and restated
Disclosure Schedule attached hereto as Annex I shall constitute Permitted
Encumbrances.
13. Schedule 6.2(f) is amended by adding the following to the list of
Necessary Consents, for purposes of Article VII:
"Environmental Permit No. 1152-AOP-R1 issued by the Air Division of the
Arkansas Department of Environmental Quality and Permit No. 1363301 issued
by the Searcy Water and Sewer System."
14. This Amendment No. 1 may be executed in counterparts, all of which
shall be considered one and the same agreement.
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IN WITNESS WHEREOF, this Amendment No. 1 has been executed and delivered by
or on behalf of the parties as of this 30th day of July, 2001.
AMANA APPLIANCE COMPANY, L.P.
By: Amana Holding Company,
its sole general partner
By: /s/ Ben D. Cambell
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Name: Ben D. Campbell
Title: Executive Vice President
GOODMAN GLOBAL HOLDINGS, INC.
By: /s/ Ben D. Cambell
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Name: Ben D. Campbell
Title: Executive Vice President
MAYTAG CORPORATION
By: /s/ Roger K. Scholten
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Name: Roger K. Scholten
Title: Senior Vice President
MAYTAG WORLDWIDE N.V.
By: /s/ Roger K. Scholten
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Name: Roger K. Scholten
Title: Director
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