Exhibit 2.2
AMENDMENT
TO
PURCHASE AND CONTRIBUTION
AGREEMENT
This AMENDMENT to the
PURCHASE AND CONTRIBUTION AGREEMENT (this
“Amendment”) is made and entered into on June 29,
2009, by and between (i) Carrier Corporation, a Delaware
corporation (“Seller”) and (ii) Watsco, Inc., a
Florida corporation (“Buyer”) (collectively, the
“Parties,” and each individually, a
“Party”).
Recitals
A. WHEREAS, on May 3, 2009
Seller and Buyer entered into a Purchase and Contribution Agreement
(the “Purchase and Contribution Agreement”) under
which, among other things, Buyer is to acquire, directly or
indirectly, a 60% membership interest in the Company, following
which Buyer will own, directly or indirectly, 60% of the Company,
Seller will own 39% of the Company, the 1% Holder will own 1% of
the Company and the Company will own the Comfort Products
Contributed Assets and will have assumed the Comfort Products
Liabilities;
B. WHEREAS, the Purchase and
Contribution Agreement contemplates that, on or prior to the
Closing Date, the Parties shall enter into an amendment to the
Purchase and Contribution Agreement addressing, among other things,
the allocation of assets and liabilities comprising the Head Office
and the allocation of employees of Seller and its Affiliates who
are, immediately prior to the Closing, primarily employed in the
business of the Head Office (the “Head Office
Amendment”); and
C. WHEREAS, the Parties desire to
enter into the Head Office Amendment and amend certain other
provisions of the Purchase and Contribution Agreement, in each case
as set forth below.
Agreement
NOW, THEREFORE, in consideration of
the foregoing and the mutual agreements contained in this
Amendment, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, intending
to be legally bound, the parties hereto agree as
follows:
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1.
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Capitalized
terms used but not otherwise defined herein shall have the meanings
given them in the Purchase and Contribution Agreement.
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2.
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Recital
A of the Purchase and
Contribution Agreement is hereby amended by replacing the words
“Carrier Enterprises, LLC” with the words
“Carrier Enterprise, LLC”.
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3.
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Section 1.01 of the Purchase and Contribution Agreement is
hereby amended and restated to read in its entirety as
follows:
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1.01 Restructuring
Transactions . Seller shall, and, to the extent applicable,
shall cause its Subsidiaries to (a) before the Closing,
transfer and convey to the Company all of Seller’s right,
title and interest in and to the equity interests in the Division
Entities and, prior to the Closing Date, contribute membership
interests in the Company which after giving effect to the issuance
of membership interests pursuant to Section 1.02(b)
will be equal to one percent (1%) of the outstanding
membership interests in the Company immediately after Closing to
the 1% Holder and (b) take all actions necessary such that,
from and after the Closing, (i) the Company and Division
Entities shall not contain the assets or liabilities comprising the
California Business, the Northeast Business or the Applied Business
or the inventory subject to the Consignment Agreement and
(ii) the Head Office shall reflect the consummation of the
transactions and other actions contemplated by Exhibit J
(collectively, the “Restructuring”).
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4.
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Exhibit
J in the form attached as
Annex A hereto is hereby added as Exhibit J to the
Purchase and Contribution Agreement.
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5.
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Section 5.01(a) of the Purchase and Contribution Agreement is
hereby amended and restated to read in its entirety as
follows:
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(a) Employment Continuity .
JV Employees are intended to have continuity of employment upon the
Closing. Subject to Exhibit J , no later than immediately
prior to the Closing, Seller or its appropriate Affiliate shall
transfer the employment of each Carrier Transferred Employee not
employed by the Company or a Subsidiary thereof to the Company or a
Subsidiary thereof. Subject to Exhibit J , no later than
immediately prior to the Closing, Seller or its appropriate
Affiliate shall transfer any employee of the Company and its
Subsidiaries who is not a Carrier Transferred Employee to Seller or
one of its Affiliates other than the Company or a Subsidiary
thereof. No later than December 31, 2009, Buyer shall cause
the Company to make an offer of employment to each Comfort
Employee, effective as of January 1, 2010.
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6.
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Section 5.01(d) of the Purchase and Contribution Agreement is
hereby amended and restated to read in its entirety as
follows:
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(d) Seller Plans .
(i) Subject to Exhibit J , Seller and its Subsidiaries
shall remain solely responsible for all liabilities incurred prior
to the Closing by Carrier Transferred Employees under Seller Plans,
and (ii) Buyer and its Subsidiaries shall, subject to the
terms of the Comfort Products Transition Services Agreement, remain
solely responsible for all compensation and employee benefit
liabilities incurred prior to January 1, 2010 (or, if later,
the date of commencement of employment of the applicable Comfort
Employee with the Company) by Comfort Employees. With respect to
the period from the Closing Date through December 31, 2009,
(x) Carrier Transferred Employees shall continue to
participate in welfare benefit plans maintained
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by Seller and its Affiliates and
(y) Comfort Employees shall remain employed by Buyer and its
Affiliates, in each case in accordance with the provisions of the
Transition Services Agreement or Comfort Products Transition
Services Agreement, as applicable. Following December 31,
2009, the Company shall be solely responsible for compensation and
employee benefit plans for all JV Employees.
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7.
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Section 5.01(e) of the
Purchase and Contribution Agreement
is hereby amended and restated to read in its entirety as
follows:
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(e) Successor Employer . With
respect to Carrier Transferred Employees, Seller and the Company
shall, and shall cause their respective Subsidiaries to, to the
extent permitted by applicable law or practicable, (i) treat
the Company (or its applicable Subsidiary) as a “successor
employer” and Seller (or its applicable Subsidiary) as a
“predecessor,” within the meaning of
Section 3121(a)(1) and 3306(b)(1) of the Code, to the extent
appropriate, for purposes of Taxes imposed under the United States
Federal Insurance Contributions Act, as amended
(“FICA”), or the United States Federal Unemployment Tax
Act, as amended (“FUTA”), (ii) cooperate with each
other to avoid, to the extent possible, the restart of FICA and
FUTA with respect to each such JV Employee for the calendar year
within which the Closing occurs and (iii) file tax returns,
exchange wage payment information and report wage payments made by
the respective predecessor and successor employer on separate IRS
Forms W-2 to each such JV Employee for the calendar year within
which the Closing occurs, consistent with Section 4.02(1) of
Revenue Procedure 2004-53.
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8.
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Section 5.03 of the Purchase and Contribution Agreement is
hereby amended and restated to read in its entirety as
follows:
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5.03 Intentionally left
blank.
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9.
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Section 5.04 of the Purchase and Contribution Agreement is
hereby amended and restated to read in its entirety as
follows:
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5.04 Comfort Products Transition
Services . Each Party shall endeavor to reach agreement upon
the full terms and conditions of a transition services agreement
(“Comfort Products Transition Services Agreement”)
relating to Comfort Products, the Comfort Products Contributed
Assets and the Comfort Products Liabilities, and, subject to the
foregoing, on the Closing Date, Seller, Buyer and the Company shall
enter into the Comfort Products Transition Services
Agreement
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10.
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Section 5.05 of the Purchase and Contribution Agreement is
hereby amended and restated to read in its entirety as
follows:
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5.05 Intentionally left
blank.
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11.
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Section 7.02 of the Purchase and Contribution Agreement is
hereby amended and restated to read in its entirety as
follows:
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7.02 Further Assurances .
Following the Closing, Seller and Buyer shall, and shall cause
their respective Subsidiaries to, execute and deliver such
documents, and take such other action, as shall be r
