Exhibit 2.2
FIRST AMENDMENT TO
ASSET PURCHASE AGREMENT AND ACKNOWLEDGMENT
This FIRST AMENDMENT TO ASSET
PURCHASE AGREEMENT AND ACKNOWLEDGEMENT (this “
Amendment ”) is dated effective as of this 28
th day of July, 2006 (the “ Effective date
”), by and between Shell Energy Services, L.L.C., a Delaware
limited liability company (“ Seller ”), and
MxEnergy Inc., a Delaware corporation (“ Buyer
”). Seller and Buyer and sometimes referred to individually
as a “ Party ” and collectively as the “
Parties ”.
WHEREAS, Seller and Buyer entered
into that certain Asset Purchase Agreement dated as of May 12, 2006
(the “ Agreement ”), covering the purchase and
sale of certain assets related to retail natural gas services in
Ohio and Georgia, as more specifically described therein
(capitalized terms used but not otherwise defined herein shall have
the meaning ascribed thereto in the Agreement); and
WHEREAS, the Parties desire to amend
the Agreement pursuant to the terms and conditions set forth herein
by entering into this Amendment and to acknowledge certain matters
related to the Agreement.
NOW, THEREFORE, for and in
consideration of the premises and of the mutual covenants and
agreements contained herein, the Parties hereby agree to amend the
Agreement in the following respects and acknowledge and agree to
certain matters related thereto:
1.
Pre-Closing Data Retrieval
Date . The definition of
“Pre-Closing Data Retrieval Date” in Section 1.1 of the
Agreement shall be amended and restated in its entirety read as
follows:
“ Pre-Closing Data
Retrieval Date ” means the date that is ten (10) Business
Days prior to the Effective Date, except with respect to unbilled
revenue described in Section 2.4(a)(iv), for which the Pre-Closing
Data Retrieval Date shall be eight (8) Business Days prior to the
Effective Date.
2.
Adjustments to Estimated
Payment . The first
sentence of Section 2.5 of the Agreement shall be amended and
restated in its entirety read as follows:
On or before four (4) Business Days
prior to the Closing or, in the case of item (ii), on or before six
(6) Business Days prior to the Closing, Seller (with the
cooperation of Buyer and Buyer will have the ability to review the
preparation of the Closing Statement during Seller’s
completion thereof) will prepare and deliver to Buyer a written
statement prepared in accordance with Schedule 2.5 and the
other provisions of this Agreement setting forth (i) the Base
Amount, (ii) the estimated Marked to Market Amount, (iii) the
estimated Inventory Amount, (iv) the estimated Unbilled Revenue
Amount, (v) the estimated Accounts Receivable Amount (vi) the
estimated Dekatherm Amount and (vii) the estimated Prepaid Items
Amount (collectively, “ Estimated Price ”), in
reasonable detail based on information available to Seller on the
Pre-Closing Data Retrieval Date, and wire transfer instructions
(the “ Closing Statement ”).
