AMENDMENT TO ASSET PURCHASE AGREEMENT
THIS AMENDMENT TO ASSET PURCHASE AGREEMENT
(this
“Amendment”), is made and entered into as of this 1st
day of November, 2007, by and between MASS
FINANCIAL CORP. ,
a Barbados corporation (the “
Seller ”),
and
RADIANT LOGISTICS GLOBAL SERVICES, INC.
, a Delaware corporation (the “
Buyer ”),
for the purpose of amending the Asset Purchase Agreement (the
“Agreement”) dated May 21, 2007, by and between the
Seller and Buyer. This Amendment replaces any prior Amendment to
Asset Purchase Agreement in its entirety. Capitalized terms used
and not otherwise defined herein shall have the meanings ascribed
to such terms in the Agreement.
Recitals
WHEREAS ,
the Buyer and Seller have determined that it is in each of their
best interests to amend certain provisions of the
Agreement.
NOW, THEREFORE ,
in consideration of the foregoing premises and representations,
warranties, covenants and agreements contained herein, and for
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
1.
Sections
2.1(c), 2.1(d), 2.1(e) and 2.1(f) of the Agreement are hereby
deleted.
2.
Section
2.1(b) of the Agreement is hereby deleted and amended to
provide in its entirety as follows:
“exclusive
rights to all the Intellectual Property used or useable
exclusively in the operation of the Automotive Business and
non-exclusive rights to any other Intellectual Property used
in the operations of the Automotive Business (the “IP
Rights”, and together with the Tangible Personal
Property, the “
Purchased Assets ”).”
3.
Section
3.1(a) of the Agreement is hereby deleted and amended to
provide in its entirety as follows:
“The
purchase price for the Purchased Assets (the “
Purchase Price ”)
shall be up to One Million Five Hundred Sixty Thousand Dollars
($1,560,000).”
4.
A
Sections
3.1(b)(ii) of the Agreement is hereby deleted and amended to
provide in its entirety as follows:
“Two
Hundred Sixty Five Thousand Dollars ($265,000) (the
“Second Payment”) shall be paid to the Seller by
immediately available funds to the Seller at closing, receipt
of said Second Payment to be a condition to Seller’s
obligation to close; and One Hundred Ninety Five Thousand
Dollars ($195,000) (the “Third Payment”) shall be
paid to the Seller by immediately available funds on November
3, 2008 subject to the set-off rights provided in Section
3.1(b)(v) hereof; and”
4.B
Sections
3.1(b)(iii) of the Agreement is hereby deleted and amended to
provide in its entirety as follows:
“One
Million Dollars ($1,000,000) shall be paid at Closing by
setoff against the Purchase Price owed by Buyer to Seller in
full satisfaction of indemnification claims, subject solely to
the set-off rights provided in Section 3.1(b)(v) hereof, of
any of Buyer, Radiant, and Airgroup Corporation, which is the
sole subsidiary of either Buyer or Radiant, whether already
asserted or hereafter arising under the Management Services
Agreement (the “
MSA Indemnification Claim” );”
5.
Sections
3.1(b)(v)of the Agreement is hereby deleted and amended to
provide in its entirety as follows:
“Buyer
shall take as set-off, up to Seventy-Five Thousand Dollars
($75,000) against the Third Payment due under Section
3.1(b)(ii), all costs incurred by any Buyer Indemnified Party
to investigate, defend or pay claims of current or former
carriers or customers of the Automotive Business to the extent
such claims relate to periods prior to May 21, 2007 which
shall include, but not be limited to, any and all legal fees
and costs incurred by any Buyer Indemnified Party (as defined
herein) in dealing with any non cargo insurance claims made
against any Buyer Indemnified Party including costs incurred
in connection with the Burke Garnishment (the “Set-off
Rights”). Prior to investigating, defending or paying
any such claim, Buyer shall notify Seller of its intended
action and Seller shall have 20 days to evaluate and/or
resolve such claim. Notwithstanding the above, the Seller
shall pay for all amounts due to Foster, Swift, Collins &
Smith, P.C. for legal services in connection with the Burke
Garnishments and the posting of the Letter of Credit as
provided in Paragraph 22 of this Amendment with no degradation
to the $75,000 available for off-set.
6.
Section
3.1(b) (vi) and 3.1(c) of the Agreement are hereby
deleted.
7.
A
new Section 3.3 is hereby added to the Agreement to provide in
its entirety as follows:
“As
soon as possible following Closing, Seller and Buyer shall
determine which payments received from UAFS customers are
property of Seller and which are property of Buyer, based on
the criteria set forth in Section 2.3 of the Management
Agreement, and each shall promptly remit to the other. The
parties shall continue to reconcile and settle the accounts on
a not less than weekly basis until all sums owed to the other
have been accounted for. “
8.
A
new Section 9.1(d) is hereby added to the Agreement to provide
in its entirety as follows:
“Seller
shall have obtained the issuance of an irrevocable letter of
credit in the amount of $2,750,000 (the “
Letter of Credit ”)
in accordance with that certain Stipulated Order Regarding Writs of
Garnishments dated August 14, 2007 with attached exhibits issued by
the State of Michigan Circuit Court for the County of Wayne (the
“
Stipulated
Order ”).”
9.
A
new Section 9.1(e) is hereby added to the Agreement to provide
in its entirety as follows:
“Seller
shall have taken all action necessary to cause that certain
action commenced by it against Buyer and Radiant in the United
States Federal District Court Western District of Washington
at Seattle Case No. C07-1547C to be dismissed with prejudice
and shall have executed a release (the “
Release ”)
in favor of Buyer and Radiant with respect to all claims raised
therein.”
11.
A
new Section 5.1(h) is hereby added to the Agreement to provide
in its entirety as follows:
“Seller’s
counsel shall have executed the Stipulated
Order.”
12.
A
new Section 5.1(i) is hereby added to the Agreement to provide
in its entirety as follows:
“Seller
shall have executed and delivered to Buyer and Radiant the
Release.”
13.
Section
5.2(a) of the Agreement is hereby deleted and the following
substituted therefor:
“Buyer’s
counsel shall have executed the Stipulated
Order.”
14.
A
new Section 5.2(g) is hereby added to the Agreement to provide
in its entirety as follows:
“Seller
shall pay to Buyer via offset of amounts owing by Buyer to
S
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