EXHIBIT 2.2
CONEX ACQUISITION CORPORATION
c/o Pacer International Inc.
0000 Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx Xxxxx, XX 00000
January 12, 2000
To the Seller Group (as defined
in the below-referenced
Asset Purchase Agreement):
Asset Purchase Agreement dated as of
December 31, 1999 (the "Agreement"), among
Conex Acquisition Corporation, Conex Global
Logistics Services, Inc., MSL Transportation Group, Inc.,
Jupiter Freight, Inc., The Xxxxxxx X. Xxxxxx Living Trust,
The Uchida Family Trust, Xxxxxxx Xxxxxx and Xxxxxxxxx Xxxxxx
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Gentlemen:
This letter will serve to set forth our agreement regarding the following
amendments to, and other matters relating to, the Agreement. Accordingly, for
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, you and we hereby agree as follows:
1. Defined Terms. Capitalized terms used and not defined herein have the
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meanings given to them in the Agreement.
2. Closing Date. The Closing Date will be January 13, 2000. The Closing
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Balance Sheet shall be prepared as of the close of business on December 31,
1999. If the Closing occurs, all of the economic benefits and interests in
the Purchased Assets shall be deemed to have been transferred to and owned
by, and all of the obligations of the Assumed Liabilities shall be deemed
to have been assumed by and be obligations of, the Purchaser effective as
of 12:00 a.m. on January 1, 2000, and any changes in the Purchased Assets
and the Assumed Liabilities occurring during the period from and after the
close of business on December 31, 1999, through and including the Closing
Date (including, without limitation, collections of accounts receivable and
payments of accounts payable) shall be for the account of the Purchaser as
if the Closing had occurred effective as of 12:00 a.m. on January 1, 2000;
provided, however, that nothing herein shall affect, or impair the rights
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and remedies of the parties with respect to any inaccuracy or breach of,
the representations and warranties made by the parties in the Agreement as
of December
31, 1999, and as of the Closing Date and the covenants and agreements of
the parties in the Agreement for the period from December 31, 1999, through
the Closing Date.
3. Amendment of Section 5.1(b) of the Agreement. Section 5.1(b) of the
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Agreement is hereby amended by adding the following proviso at the end of
the eighth (8/th/) sentence thereof:
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"provided, however, that if (I) the difference between the Purchaser's
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calculation of the 1999 Adjusted EBIT submitted to the Arbitrating
Accountants and the Arbitrating Accountants' calculation of the 1999
Adjusted EBIT is the same as (II) the difference between the
Companies' calculation of the 1999 Adjusted EBIT submitted to the
Arbitrating Accountants and the Arbitrating Accountants' calculation
of the 1999 Adjusted EBIT, then the Arbitrating Accountants'
calculation of the 1999 Adjusted EBIT shall be the final calculation
of the 1999 Adjusted EBIT for all purposes of this Agreement"
4. Amendment of Section 5.2(b) of the Agreement. Section 5.2(b) of the
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Agreement is hereby amended by adding the following proviso at the end of
the eighth (8/th/) sentence thereof:
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"provided, however, that if (I) the difference between the Purchaser's
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calculation of the 2000 Adjusted EBIT submitted to the Arbitrating
Accountants and the Arbitrating Accountants' calculation of the 2000
Adjusted EBIT is the same as (II) the difference between the
Companies' calculation of the 2000 Adjusted EBIT submitted to the
Arbitrating Accountants and the Arbitrating Accountants' calculation
of the 2000 Adjusted EBIT, then the Arbitrating Accountants'
calculation of the 2000 Adjusted EBIT shall be the final calculation
of the 2000 Adjusted EBIT for all purposes of this Agreement"
5. Amendment of Section 6.2 of the Agreement. Section 6.2 of the Agreement is
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hereby amended by adding the following proviso at the end of the eighth
(8/th/) sentence thereof:
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"provided, however, that if (I) the difference between the Purchaser's
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calculation of the Final Net Working Capital submitted to the
Arbitrating Accountants and the Arbitrating Accountants' calculation
of the Final Net Working Capital is the same as (II) the difference
between the Companies' calculation of the Final Net Working Capital
submitted to the Arbitrating Accountants and the Arbitrating
Accountants' calculation of the Final Net Working Capital, then the
Arbitrating Accountants' calculation of the Final Net Working Capital
shall be the final calculation of the Final Net Working Capital for
all purposes of this Agreement"
6. Amendment of Section 11.1 of the Agreement. Section 11.1 of the Agreement
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is hereby amended by changing the reference therein to "the Company" to
read "the Companies."
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7. Amendment of Section 13.1 of the Agreement. The proviso in Section 13.1 of
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the Agreement is hereby amended by changing the reference therein to
"clause (i)" to read "clause (a) of this Section 13.1."
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8. Conflicts; No Other Amendments. In the event of any conflict between the
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express provisions of the Agreement and this letter agreement, the
provisions of this letter agreement shall control. Except as expressly
amended by this letter agreement, the Agreement remains in full and effect
in accordance with its terms.
9. Amendment. This Agreement may not be altered or otherwise amended except
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pursuant to an instrument in writing signed by each party.
10. Entire Agreement. This letter agreement and the Agreement together with
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the other agreements and documents referenced therein (including the
Schedules and the Exhibits (in their executed form) attached thereto) and
any written other document or agreement contemporaneously entered into with
this letter agreement and the Agreement contain all of the agreements among
the parties hereto with respect to the transactions contemplated hereby and
thereby and supersede all prior agreements or understandings among the
parties with respect thereto.
11. Benefits of Agreement. All the terms and provisions of this letter
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agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and permitted assigns. Except as expressly
provided herein, this letter agreement shall not confer any rights or
remedies upon any Person other than the foregoing. Notwithstanding anything
contained herein to the contrary, this letter agreement shall not be
assignable by any Company or the Shareholders without the express written
consent of the Purchaser. The Purchaser may, without the consent of any
other party hereto, (a) assign any or all of its rights and interests
hereunder to one or more of its Affiliates and designate one or more of its
Affiliates to perform its obligations hereunder and (b) assign any or all
of its rights and interests hereunder as security for any obligations
arising in connection with the financing of the transactions contemplated
hereby, in any or all of which cases the Purchaser nonetheless shall remain
responsible for the performance.
12. Counterparts and Facsimile Execution. This letter agreement may be
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executed in two or more counterparts, all of which shall be considered one
and the same agreement and shall become effective when one or more
counterparts have been signed by each of the parties and delivered (by
facsimile or otherwise) to the other party, it being understood that all
parties need not sign the same counterpart. Any counterpart or other
signature hereupon delivered by facsimile shall be deemed for all purposes
as constituting good and valid execution and delivery of this letter
agreement by such party.
13. Governing Law. THIS LETTER AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
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ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF CALIFORNIA, WITHOUT
GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICTING PROVISION OR RULE
(WHETHER OF THE STATE OF
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CALIFORNIA, OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE LAWS OF ANY
JURISDICTION OTHER THAN THE STATE OF CALIFORNIA TO BE APPLIED. EACH OF THE
PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY RELATED DOCUMENT.
Please acknowledge your agreement with the foregoing by signing this letter
agreement where provided below, whereon it shall become a binding agreement
between us.
Very truly yours,
CONEX ACQUISITION CORPORATION
By_____________________________________
Name:
Title:
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Accepted and Agreed as of
the date first written above:
CONEX GLOBAL LOGISTICS SERVICES, INC. THE SHAREHOLDERS:
By:_________________________________ ________________________________
Name: Xxxxxxx Xxxxxx
Title:
MSL TRANSPORTATION GROUP, INC. THE XXXXXXX X. XXXXXX LIVING
TRUST
By:_________________________________ By:_____________________________
Name: Name:
Title: Title:
JUPITER FREIGHT, INC.
By:_________________________________ ________________________________
Name: Xxxxxxxxx Xxxxxx
Title:
THE UCHIDA FAMILY TRUST
By:_____________________________
Name:
Title:
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