EXHIBIT 2.2(b)
AMENDMENT NO. 1 TO
SEPARATION AGREEMENT
THIS AMENDMENT NO. 1 TO SEPARATION AGREEMENT (this "Amendment"), is
made effective as of the 23rd day of December, 2002 for the purpose of amending
and modifying that certain Separation Agreement (the "Separation Agreement"),
effective as of November 30, 2002, by and among Central Freight Lines, Inc., a
Texas corporation ("Central Freight"), Central Refrigerated Service, Inc., a
Nebraska corporation ("Central Refrigerated"), the Xxxxx and Xxxxxx Xxxxx Family
Trust (the "Trust"), Interstate Equipment Leasing, Inc., an Arizona corporation
("IEL"), and Xxxxx Xxxxx individually ("Moyes" and, together with the Trust and
IEL, the "Noteholders"). Capitalized terms used but not defined in this
Amendment shall have the meaning ascribed thereto in the Separation Agreement.
WHEREAS, effective December 20, 2002, Central Refrigerated declared a
share dividend pursuant to which 90 shares of Central Refrigerated common stock
were issued for each share of Central Refrigerated common stock issued and
outstanding as of December 20, 2002;
WHEREAS, on December 20, 2002, Central Freight owned 100 shares of
Central Refrigerated common stock, which shares constituted all of the issued
and outstanding Central Refrigerated common stock;
WHEREAS, as a result of the share dividend, Central Freight is now the
record owner of 9,100 shares of Central Refrigerated common stock;
WHEREAS, the parties hereto desire to amend the Separation Agreement to
reflect the share dividend;
WHEREAS, effective December 20, 2002, IEL transferred and assigned the
IEL Note to the Trust;
WHEREAS, the parties hereto desire to amend the Separation Agreement to
provide for the transfer and delivery by Central Freight to the Trust of the
shares of Central Refrigerated common stock that were to be transferred and
delivered to IEL as consideration for the cancellation of the IEL Note;
WHEREAS, the parties hereto have determined that it is in their mutual
best interests that the consummation of the transactions contemplated by Section
1 of the Separation Agreement occur no earlier than 11:59 p.m. Mountain Standard
Time on December 31, 2002, notwithstanding Central Refrigerated's having
obtained separate insurance coverage prior to such time; and
WHEREAS, the parties hereto desire to amend the Separation Agreement to
provide that the consummation of the transactions contemplated by Section 1
thereof will occur no earlier than 11:59 p.m. Mountain Standard Time on December
31, 2002.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual agreements set forth herein, the parties hereto agree as follows:
1. Section 1 of the Separation Agreement is hereby amended and
restated in its entirety to read as follows:
"1. Cancellation of Notes.
(a) In lieu of repayment of all principal and accrued
interest due and payable pursuant to the Trust Note, the IEL Note, and
the Moyes Notes, Central Freight agrees to transfer and deliver the
Pledged Shares to the Trust and Moyes, and the Trust and Moyes agree to
accept such Shares, as follows:
Noteholder Name Number of Pledged Shares to be Delivered
--------------- ----------------------------------------
Trust 4823
Moyes 4277
Central Freight shall deliver certificates representing the Pledged
Shares, endorsed by Central Freight in blank or with stock powers
executed by Central Freight in blank attached, to the Trust and Moyes
following satisfaction of all conditions precedent specified in Section
1(b) below. Such transfer shall be effective as of the Effective Time
(as defined in Section 1(b) below). Upon delivery of the Pledged
Shares, the Trust and Moyes shall return the Trust Note, the IEL Note,
and Moyes Notes to Central Freight for cancellation. Central Freight
shall thereafter have no further obligation under the Trust Note, IEL
Note, or Moyes Notes.
(b) The respective obligations of each party to
consummate the transactions contemplated by this Section 1 are subject
to satisfaction of the following condition precedent: Central
Refrigerated shall have obtained separate insurance coverage as
contemplated by that certain letter dated October 21, 2002, from
Xxxxxxx & Xxxxx, Inc. or on such other terms as the parties may agree.
The closing of the transactions contemplated by this Section 1 shall be
deemed to occur on the later of (i) the date and time at which such
separate insurance becomes effective or (ii) 11:59 p.m. Mountain
Standard Time on December 31, 2002 (the "Effective Time").
(c) If the foregoing condition precedent has not been
satisfied by December 31, 2003, the respective obligations of each
party under this Section 1 shall expire and have no further force or
effect."
2. Except as explicitly modified or amended by this Amendment,
all terms, conditions, and provisions of the Separation Agreement shall continue
in full force and effect.
3. This Amendment may be executed via facsimile or otherwise in
one or more counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Amendment
effective as of the date first above written.
CENTRAL FREIGHT LINES, INC., THE XXXXX AND XXXXXX XXXXX
a Texas corporation FAMILY TRUST
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxx Xxxxx
Xxxxxx X. Xxxxx, Chief Executive Xxxxx Xxxxx, Trustee
Officer and President
CENTRAL REFRIGERATED SERVICE, INTERSTATE EQUIPMENT LEASING,
INC., a Nebraska corporation INC., an Arizona corporation
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxx Xxxxx
Xxxxxx Xxxxxx, Vice President of Xxxxx Xxxxx, President
Finance and Chief Financial Officer
XXXXX XXXXX
/s/ Xxxxx Xxxxx
