Exhibit 2
AGREEMENT AND PLAN OF REORGANIZATION
among
(i) Republic Industries, Inc.
AS REPUBLIC
(ii) Alamo Acquisition Corp., Alamo (Canada) Acquisition Corp.,
Alamo (Belgium) Acquisition Corp., Territory Blue Acquisition Corp.,
Tower Advertising Group Acquisition Corp., Green Corn Acquisition Corp.,
Guy Salmon Acquisition Corp., Alasys Acquisition Corp., Tripperoo Wings
Acquisition Corp., Rising Moon Acquisition Corp., Alamo (Puerto Rico)
Acquisition Corp., Alamo Sales Acquisition Corp., AFL Fleet Acquisition
Corp., Alamo Leasing Acquisition Corp., Alamo Automobile Acquisition Corp.,
Alamo Shuttle Acquisition Corp., Tower Restaurants Acquisition Corp.,
Tower Food Acquisition Corp. and Corporate Planners
Acquisition Corp.,
AS THE REPUBLIC SUBSIDIARIES
and
(iii) Michael S. Egan, The Michael S. Egan Living Trust, The Michael S. Egan
Grantor Retained Annuity Trust for Sarah Egan Mooney, The Michael S. Egan
Grantor Retained Annuity Trust for Eliza Shenners Egan, The Michael S. Egan
Grantor Retained Annuity Trust for Catherine Lewis Egan, The Michael S. Egan
Grantor Retained Annuity Trust for Teague Michael Thomas Egan, The Michael S.
Egan Grantor Retained Annuity Trust for Riley Martin Michael Egan, The 110
Group Trust, Norman D. Tripp and William H. Kelly,Jr.
AS THE SHAREHOLDERS
and
(iv) Alamo Rent-A-Car, Inc., Alamo Rent-A-Car (Canada), Inc. Alamo Rent-A-Car
(Belgium), Inc., Territory Blue, Inc., Tower Advertising Group, Inc., Green
Corn, Inc., Guy Salmon USA, Inc., Alasys, Inc., Tripperoo Wings, Inc., Rising
Moon Inc., Alamo Rent-A-Car (Puerto Rico) Inc., Alamo International Sales,
Inc., Risk Management Reengineering Assurance Group, AFL Fleet Funding, Inc.,
Alamo Leasing Corp., Alamo Automobile Sales, Inc., Alamo Shuttle, Inc., 110
Tower Restaurants, Inc., Tower Food & Beverage, Inc., Corporate Planners &
Developers, Inc., Alasys, Ltd., Guy Salmon USA, Ltd.,
DKBERT Assoc. and RKCTR
AS THE CONVEYED ENTITIES
DATED NOVEMBER 6, 1996
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND TERMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 6 -
Section 1.1 Certain Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 6 -
Section 1.2 Other Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 12 -
Section 1.3 Other Definitional Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 12 -
ARTICLE II
PLAN OF REORGANIZATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 13 -
Section 2.1 The Mergers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 13 -
Section 2.2 Conversion of Alamo Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 18 -
Section 2.3 Conversion of Alamo Canada Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 18 -
Section 2.4 Conversion of Alamo Belgium Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 19 -
Section 2.5 Conversion of Territory Blue Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 20 -
Section 2.6 Conversion of Tower Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 21 -
Section 2.7 Conversion of Green Corn Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 22 -
Section 2.8 Conversion of Guy Salmon Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 23 -
Section 2.9 Conversion of Alasys Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 23 -
Section 2.10 Conversion of Tripperoo Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 24 -
Section 2.11 Conversion of Rising Moon Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 25 -
Section 2.12 Conversion of Alamo (Puerto Rico) Securities . . . . . . . . . . . . . . . . . . . . . . . . . . - 26 -
Section 2.13 Conversion of Alamo Sales Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 27 -
Section 2.14 [Intentionally Deleted]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 27 -
Section 2.15 Conversion of Fleet Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 27 -
Section 2.16 Conversion of Alamo Leasing Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 28 -
Section 2.17 Conversion of Alamo Automobile Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . - 29 -
Section 2.18 Conversion of Alamo Shuttle Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 30 -
Section 2.19 Conversion of Tower Restaurants Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . - 31 -
Section 2.20 Conversion of Tower Food Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 32 -
Section 2.21 Conversion of Corporate Planners Securities . . . . . . . . . . . . . . . . . . . . . . . . . . - 32 -
Section 2.22 Risk Management; Conveyed Partnerships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 33 -
Section 2.23 Aggregate Consideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 34 -
Section 2.24 Exchange of Certificates and Other Consideration . . . . . . . . . . . . . . . . . . . . . . . . - 34 -
ARTICLE III
CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 35 -
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF THE CONVEYED ENTITIES AND THE SHAREHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 35 -
Section 4.1 Authority; Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 36 -
Section 4.2 Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 36 -
Section 4.3 Ownership of Company Common Stock and Partnership Interests . . . . . . . . . . . . . . . . . . - 36 -
Section 4.4 Non-Contravention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 37 -
Section 4.5 Consents and Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 37 -
Section 4.6 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 37 -
Section 4.7 SEC Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 38 -
Section 4.8 Absence of Certain Changes or Events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 38 -
Section 4.9 [Intentionally Deleted] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 38 -
Section 4.10 Property; Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 38 -
Section 4.11 Litigation and Claims; Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . - 39 -
Section 4.12 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 40 -
Section 4.13 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 40 -
Section 4.14 Material Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 41 -
Section 4.15 Intellectual Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 43 -
Section 4.16 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 45 -
Section 4.17 Employee Benefits; ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 47 -
Section 4.18 Labor Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 50 -
Section 4.19 Franchisees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 51 -
Section 4.20 Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 51 -
Section 4.21 Affiliate Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 51 -
Section 4.22 Brokers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 52 -
Section 4.23 Information in Registration Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 52 -
Section 4.24 Certain Accounting Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 52 -
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF
REPUBLIC AND THE REPUBLIC SUBSIDIARIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 52 -
Section 5.1 Authority; Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 52 -
Section 5.2 Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 52 -
Section 5.3 Non-Contravention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 53 -
Section 5.4 Consents and Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 53 -
Section 5.5 SEC Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 53 -
Section 5.6 Information in Registration Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 54 -
Section 5.7 Brokers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 54 -
Section 5.8 [Intentionally Deleted] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 54 -
Section 5.9 Republic Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 54 -
Section 5.10 Litigation and Claims; Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . - 54 -
-ii-
Section 5.11 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 55 -
Section 5.12 Financial Projections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 56 -
Section 5.13 Intention Concerning Reorganizations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 56 -
Section 5.14 Other Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 56 -
ARTICLE VI
COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 56 -
Section 6.1 Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 56 -
Section 6.2 Conduct of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 57 -
Section 6.3 Commercially Reasonable Efforts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 59 -
Section 6.4 No Solicitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 59 -
Section 6.5 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 60 -
Section 6.6 SEC Documents; Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 60 -
Section 6.7 Certain Tax Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 60 -
Section 6.8 Intercompany Obligations; Affiliate Agreements . . . . . . . . . . . . . . . . . . . . . . . . . - 63 -
Section 6.9 [Intentionally Deleted] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 63 -
Section 6.10 [Intentionally Deleted] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 63 -
Section 6.11 HSR Act Filings; Other Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 63 -
Section 6.12 Non-Competition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 64 -
Section 6.13 Public Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 64 -
Section 6.14 Affected Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 65 -
Section 6.15 [Intentionally Deleted] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 65 -
Section 6.16 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 65 -
Section 6.17 Distribution of Earnings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 66 -
Section 6.18 Pooling Accounting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 67 -
Section 6.19 Sale of Republic Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 67 -
Section 6.20 Certified . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 68 -
ARTICLE VII
CONDITIONS TO CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 68 -
Section 7.1 Conditions to the Obligations of Republic, the Republic
Subsidiaries and the Shareholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 68 -
Section 7.2 Conditions to the Obligations of Republic and the
Republic Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 68 -
Section 7.3 Conditions to the Obligations of the Shareholders . . . . . . . . . . . . . . . . . . . . . . . - 70 -
ARTICLE VIII
SURVIVAL AND INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 71 -
Section 8.1 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 71 -
Section 8.2 Indemnification by the Shareholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 71 -
-iii-
_
Section 8.3 Indemnification by Republic and the Republic Subsidiaries . . . . . . . . . . . . . . . . . . . - 72 -
Section 8.4 Indemnification Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 72 -
ARTICLE IX
TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 73 -
Section 9.1 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 73 -
Section 9.2 Effect of Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 74 -
ARTICLE X
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 75 -
Section 10.1 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 75 -
Section 10.2 Amendment: Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 77 -
Section 10.3 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 77 -
Section 10.4 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 77 -
Section 10.5 Fulfillment of Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 77 -
Section 10.6 Parties in Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 77 -
Section 10.7 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 77 -
Section 10.8 Schedules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 78 -
Section 10.9 Governing Law: Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 78 -
Section 10.10 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 78 -
Section 10.11 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 78 -
Section 10.12 Specific Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 78 -
SCHEDULES
Schedule 2 Purchase Price Allocation
Schedule 4.2 Conveyed Entities
Schedule 4.3 Ownership of Shares and Partnership Interests
Schedule 4.4 Non-Contravention
Schedule 4.5 Consents and Approvals
Schedule 4.6 Subsidiaries
Schedule 4.8 Certain Changes or Events
Schedule 4.10 Property
Schedule 4.11 Litigation and Claims
Schedule 4.12 Insurance
Schedule 4.13(a) Environmental Matters - Compliance
Schedule 4.13(b) Environmental Claims
Schedule 4.13(c) Basis for Environmental Claims
Schedule 4.13(d) Environmental Matters - Storage Sites
-iv-
Schedule 4.13(f) Environmental Matters - Presence on Real Property
Schedule 4.14 Material Contracts
Schedule 4.15(a) Intellectual Property - Rights to Use or License
Schedule 4.15(b) Intellectual Property - Cancellations
Schedule 4.15(c) Intellectual Property - Material Agreements
Schedule 4.15(d) Intellectual Property - Computer Programs
Schedule 4.15(f) Intellectual Property - Claims Against Conveyed Entities
Schedule 4.15(g) Intellectual Property - Claims Against Third Parties
Schedule 4.16 Taxes
Schedule 4.17 Employee Benefits - Liabilities and Proceedings
Schedule 4.18 Labor Matters
Schedule 4.19 Franchisees
Schedule 4.20 Records
Schedule 4.21 Affiliate Transactions
Schedule 5.3 Noncontravention
Schedule 5.4 Consents and Approvals
Schedule 5.10 Litigation and Claims; Compliance with Laws
Schedule 5.12 Financial Projections
Schedule 6.7(f) Personnel
Schedule 6.8(a) Certain Accounts
Schedule 6.8(b) Certain Agreements
Schedule 6.14 Unaccrued Compensation
Schedule 6.16 Insurance
ANNEXES
Annex I. Alamo Articles of Merger
Annex II. Alamo Canada Articles of Merger
Annex III. Alamo Belgium Articles of Merger
Annex IV. Territory Blue Articles of Merger
Annex V. Tower Articles of Merger
Annex VI. Green Corn Articles of Merger
Annex VII. Guy Salmon Articles of Merger
Annex VIII. Alasys Articles of Merger
Annex IX. Tripperoo Articles of Merger
Annex X. Rising Moon Articles of Merger
Annex XI. Alamo (Puerto Rico) Articles of Merger
Annex XII. Alamo Sales Articles of Merger
Annex XIII. [Intentionally Deleted]
Annex XIV. Fleet Articles of Merger
Annex XV. Alamo Leasing Articles of Merger
Annex XVI. Alamo Automobile Articles of Merger
Annex XVII. Alamo Shuttle Articles of Merger
-v-
Annex XVIII. Tower Restaurants Articles of Merger
Annex XIX. Tower Food Articles of Merger
Annex XX. Corporate Planners Articles of Merger
EXHIBITS
Exhibit "A" - Registration Rights Agreement
Exhibit "B" - Greenberg Traurig Legal Opinion
Exhibit "C" - Tripp Scott Legal Opinion
Exhibit "D" - Akerman Senterfitt Legal Opinion
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THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made
and entered into as of the 6th day of November, 1996, by and among (i) ALAMO
ACQUISITION CORP., a Florida corporation ("AAC"), ALAMO (CANADA) ACQUISITION
CORP., a Florida corporation ("ACA"), ALAMO (BELGIUM) ACQUISITION CORP., a
Florida corporation ("ABA"), TERRITORY BLUE ACQUISITION CORP., a Florida
corporation ("TBA"), TOWER ADVERTISING GROUP ACQUISITION CORP., a Florida
corporation ("TAG"), GREEN CORN ACQUISITION CORP., a Florida corporation
("GCA"), GUY SALMON ACQUISITION CORP., a Florida corporation ("GSA"), and
ALASYS ACQUISITION CORP., a Florida corporation ("AC"), TRIPPEROO WINGS
ACQUISITION CORP., a Florida corporation ("TWA"), RISING MOON ACQUISITION
CORP., a Florida corporation ("RMA"), ALAMO (PUERTO RICO) ACQUISITION CORP., a
Delaware corporation ("APR"), ALAMO SALES ACQUISITION CORP., a Florida
corporation ("AIS"), AFL FLEET ACQUISITION CORP., a New York corporation
("AFL"), ALAMO LEASING ACQUISITION CORP., a Florida corporation ("ALC"), ALAMO
AUTOMOBILE ACQUISITION CORP., a Florida corporation ("AASC"), ALAMO SHUTTLE
ACQUISITION CORP., a Florida corporation ("ASC"), TOWER RESTAURANTS ACQUISITION
CORP., a Florida corporation ("TRC"), TOWER FOOD ACQUISITION CORP., a Florida
corporation ("TFB"), and CORPORATE PLANNERS ACQUISITION CORP., a Florida
corporation ("CPA") (each, a "Republic Subsidiary" and collectively, the
"Republic Subsidiaries"); (ii) ALAMO RENT-A-CAR, INC., a Florida corporation
("Alamo"), ALAMO RENT-A-CAR (CANADA), INC., a Florida corporation ("Alamo
Canada"), ALAMO RENT-A-CAR (BELGIUM), INC., a Florida corporation ("Alamo
Belgium"), TERRITORY BLUE, INC., a Florida corporation ("Territory Blue"),
TOWER ADVERTISING GROUP, INC., a Florida corporation ("Tower"), GREEN CORN,
INC., a Florida corporation ("Green Corn"), GUY SALMON USA, INC., a Florida
corporation ("Guy Salmon"), ALASYS, INC., a Florida corporation ("Alasys"),
TRIPPEROO WINGS, INC., a Florida corporation ("Tripperoo"), RISING MOON INC., a
Florida corporation ("Rising Moon"), ALAMO RENT-A-CAR (PUERTO RICO) INC., a
Delaware corporation ("Alamo (Puerto Rico)"), ALAMO INTERNATIONAL SALES, INC.,
a Florida corporation ("Alamo Sales"), RISK MANAGEMENT REENGINEERING ASSURANCE
GROUP, a Cayman Islands company ("Risk Management"), AFL FLEET FUNDING, INC., a
New York corporation ("Fleet"), ALAMO LEASING CORP., a Florida corporation
("Alamo Leasing"), ALAMO AUTOMOBILE SALES, INC., a Florida corporation ("Alamo
Automobile"), ALAMO SHUTTLE, INC., a Florida corporation ("Alamo Shuttle"), 110
TOWER RESTAURANTS, INC., a Florida corporation ("Tower Restaurants"), TOWER
FOOD & BEVERAGE, INC., a Florida corporation ("Tower Food"), CORPORATE PLANNERS
& DEVELOPERS, INC., a Florida corporation ("Corporate Planners"), ALASYS, LTD.,
a Florida limited partnership, GUY SALMON USA, LTD., a Florida limited
partnership ("Guy Salmon, Ltd"), DKBERT ASSOC., a Florida general partnership,
and RKCTR, a Florida general partnership (each, a "Conveyed Entity" and,
collectively, the "Conveyed Entities"); (iii) REPUBLIC INDUSTRIES, INC., a
Delaware corporation ("Republic"); and (iv) MICHAEL S. EGAN, THE MICHAEL S.
EGAN LIVING TRUST, THE MICHAEL S. EGAN GRANTOR RETAINED ANNUITY TRUST FOR SARAH
EGAN MOONEY, THE MICHAEL S. EGAN GRANTOR RETAINED ANNUITY TRUST FOR ELIZA
SHENNERS EGAN, THE MICHAEL S. EGAN GRANTOR RETAINED ANNUITY TRUST FOR
CATHERINE LEWIS EGAN, THE MICHAEL S. EGAN GRANTOR RETAINED ANNUITY TRUST FOR
TEAGUE MICHAEL THOMAS EGAN, THE MICHAEL S. EGAN GRANTOR RETAINED ANNUITY TRUST
FOR RILEY MARTIN MICHAEL EGAN, THE 110 GROUP TRUST, NORMAN D. TRIPP AND WILLIAM
H. KELLY, JR. (each a "Shareholder" and, collectively, the "Shareholders").
BACKGROUND
A. The respective Boards of Directors of AAC and Alamo (which
together are sometimes referred to as the "Alamo Constituent Corporations")
deem it advisable and in the best interest of the Alamo Constituent
Corporations and their respective shareholders that AAC merge with and into
Alamo (the "Alamo Merger") pursuant to this Agreement, the Articles of Merger
substantially in the form attached as Annex I (the "Alamo Articles of Merger")
and the applicable provisions of the laws of the State of Florida.
B. The respective Boards of Directors of ACA and Alamo Canada
(which together are sometimes referred to as the "Alamo Canada Constituent
Corporations") deem it advisable and in the best interest of the Alamo Canada
Constituent Corporations and their respective shareholders that ACA merge with
and into Alamo Canada (the "Alamo Canada Merger") pursuant to this Agreement,
the Articles of Merger substantially in the form attached as Annex II (the
"Alamo Canada Articles of Merger") and the applicable provisions of the laws of
the State of Florida.
C. The respective Boards of Directors of ABA and Alamo Belgium
(which together are sometimes referred to as the "Alamo Belgium Constituent
Corporations") deem it advisable and in the best interest of the Alamo Belgium
Constituent Corporations and their respective shareholders that ABA merge with
and into Alamo Belgium (the "Alamo Belgium Merger") pursuant to this Agreement,
the Articles of Merger substantially in the form attached as Annex III (the
"Alamo Belgium Articles of Merger") and the applicable provisions of the laws
of the State of Florida.
D. The respective Boards of Directors of TBA and Territory Blue
(which together are sometimes referred to as the "Territory Blue Constituent
Corporations") deem it advisable and in the best interest of the Territory Blue
Constituent Corporations and their respective shareholders that TBA merge with
and into Territory Blue (the "Territory Blue Merger") pursuant to this
Agreement, the Articles of Merger substantially in the form attached as Annex
IV (the "Territory Blue Articles of Merger") and the applicable provisions of
the laws of the State of Florida.
E. The respective Boards of Directors of TAG and Tower (which
together are sometimes referred to as the "Tower Constituent Corporations")
deem it advisable and in the best interest of the Tower Constituent
Corporations and their respective shareholders that TAG merge with and into
Tower (the "Tower Merger") pursuant to this Agreement, the Articles of Merger
substantially in the form attached as Annex V (the "Tower Articles of Merger")
and the applicable provisions of the laws of the State of Florida.
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F. The respective Boards of Directors of GCA and Green Corn
(which together are sometimes referred to as the "Green Corn Constituent
Corporations") deem it advisable and in the best interest of the Green Corn
Constituent Corporations and their respective shareholders that GCA merge with
and into Green Corn (the "Green Corn Merger") pursuant to this Agreement, the
Articles of Merger substantially in the form attached as Annex VI (the "Green
Corn Articles of Merger") and the applicable provisions of the laws of the
State of Florida.
G. The respective Boards of Directors of GSA and Guy Salmon
(which together are sometimes referred to as the "Guy Salmon Constituent
Corporations") deem it advisable and in the best interest of the Guy Salmon
Constituent Corporations and their respective shareholders that GSA merge with
and into Guy Salmon (the "Guy Salmon Merger") pursuant to this Agreement, the
Articles of Merger substantially in the form attached as Annex VII (the "Guy
Salmon Articles of Merger") and the applicable provisions of the laws of the
State of Florida.
H. The respective Boards of Directors of AC and Alasys (which
together are sometimes referred to as the "Alasys Constituent Corporations")
deem it advisable and in the best interest of the Alasys Constituent
Corporations and their respective shareholders that AC merge with and into
Alasys (the "Alasys Merger") pursuant to this Agreement, the Articles of Merger
substantially in the form attached as Annex VIII (the "Alasys Articles of
Merger") and the applicable provisions of the laws of the State of Florida.
I. The respective Boards of Directors of TWA and Tripperoo (which
together are sometimes referred to as the "Tripperoo Constituent Corporations")
deem it advisable and in the best interest of the Tripperoo Constituent
Corporations and their respective shareholders that TWA merge with and into
Tripperoo (the "Tripperoo Merger") pursuant to this Agreement, the Articles of
Merger substantially in the form attached as Annex IX (the "Tripperoo Articles
of Merger") and the applicable provisions of the laws of the State of Florida.
J. The respective Boards of Directors of RMA and Rising Moon
(which together are sometimes referred to as the "Rising Moon Constituent
Corporations") deem it advisable and in the best interest of the Rising Moon
Constituent Corporations and their respective shareholders that RMA merge with
and into Rising Moon (the "Rising Moon Merger") pursuant to this Agreement, the
Articles of Merger substantially in the form attached as Annex X (the "Rising
Moon Articles of Merger") and the applicable provisions of the laws of the
State of Florida.
K. The respective Boards of Directors of APR and Alamo (Puerto
Rico) (which together are sometimes referred to as the "Alamo (Puerto Rico)
Constituent Corporations") deem it advisable and in the best interest of the
Alamo (Puerto Rico) Constituent Corporations and their respective shareholders
that APR merge with and into Alamo (Puerto Rico) (the "Alamo (Puerto Rico)
Merger") pursuant to this Agreement, the Articles of Merger substantially in
the form attached as Annex XI (the "Alamo (Puerto Rico) Articles of Merger")
and the applicable provisions of the laws of the State of Delaware.
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L. The respective Boards of Directors of AIS and Alamo Sales
(which together are sometimes referred to as the "Alamo Sales Constituent
Corporations") deem it advisable and in the best interest of the Alamo Sales
Constituent Corporations and their respective shareholders that AIS merge with
and into Alamo Sales (the "Alamo Sales Merger") pursuant to this Agreement, the
Articles of Merger substantially in the form attached as Annex XII (the "Alamo
Sales Articles of Merger") and the applicable provisions of the laws of the
State of Florida.
M. [Intentionally Deleted].
N. The respective Boards of Directors of AFL and Fleet (which
together are sometimes referred to as the "Fleet Constituent Corporations")
deem it advisable and in the best interest of the Fleet Constituent
Corporations and their respective shareholders that AFL merge with and into
Fleet (the "Fleet Merger") pursuant to this Agreement, the Articles of Merger
substantially in the form attached as Annex XIV (the "Fleet Articles of
Merger") and the applicable provisions of the laws of the State of New York.
O. The respective Boards of Directors of ALC and Alamo Leasing
(which together are sometimes referred to as the "Alamo Leasing Constituent
Corporations") deem it advisable and in the best interest of the Alamo Leasing
Constituent Corporations and their respective shareholders that ALC merge with
and into Alamo Leasing (the "Alamo Leasing Merger") pursuant to this Agreement,
the Articles of Merger substantially in the form attached as Annex XV (the
"Alamo Leasing Articles of Merger") and the applicable provisions of the laws
of the State of Florida.
P. The respective Boards of Directors of AASC and Alamo
Automobile (which together are sometimes referred to as the "Alamo Automobile
Constituent Corporations") deem it advisable and in the best interest of the
Alamo Automobile Constituent Corporations and their respective shareholders
that AASC merge with and into Alamo Automobile (the "Alamo Automobile Merger")
pursuant to this Agreement, the Articles of Merger substantially in the form
attached as Annex XVI (the "Alamo Automobile Articles of Merger") and the
applicable provisions of the laws of the State of Florida.
Q. The respective Boards of Directors of ASC and Alamo Shuttle
(which together are sometimes referred to as the "Alamo Shuttle Constituent
Corporations") deem it advisable and in the best interest of the Alamo Shuttle
Constituent Corporations and their respective shareholders that ASC merge with
and into Alamo Shuttle (the "Alamo Shuttle Merger") pursuant to this Agreement,
the Articles of Merger substantially in the form attached as Annex XVII (the
"Alamo Shuttle Articles of Merger") and the applicable provisions of the laws
of the State of Florida.
R. The respective Boards of Directors of TRC and Tower
Restaurants (which together are sometimes referred to as the "Tower Restaurants
Constituent Corporations") deem it advisable and in the best interest of the
Tower Restaurants Constituent Corporations and their respective shareholders
that TRC merge with and into Tower Restaurants (the "Tower Restaurants Merger")
pursuant to this Agreement, the Articles of Merger substantially in the form
attached as Annex XVIII
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(the "Tower Restaurants Articles of Merger") and the applicable provisions of
the laws of the State of Florida.
S. The respective Boards of Directors of TFB and Tower Food
(which together are sometimes referred to as the "Tower Food Constituent
Corporations") deem it advisable and in the best interest of the Tower Food
Constituent Corporations and their respective shareholders that TFB merge with
and into Tower Food (the "Tower Food Merger") pursuant to this Agreement, the
Articles of Merger substantially in the form attached as Annex XIX (the "Tower
Food Articles of Merger") and the applicable provisions of the laws of the
State of Florida.
T. The respective Boards of Directors of CPA and Corporate
Planners (which together are sometimes referred to as the "Corporate Planners
Constituent Corporations") deem it advisable and in the best interest of the
Corporate Planners Constituent Corporations and their respective shareholders
that CPA merge with and into Corporate Planners (the "Corporate Planners
Merger") pursuant to this Agreement, the Articles of Merger substantially in
the form attached as Annex XX (the "Corporate Planners Articles of Merger") and
the applicable provisions of the laws of the State of Florida.
U. The respective Boards of Directors of each of the Alamo
Constituent Corporations, the Alamo Canada Constituent Corporations, the Alamo
Belgium Constituent Corporations, the Territory Blue Constituent Corporations,
the Tower Constituent Corporations, the Green Corn Constituent Corporations,
the Guy Salmon Constituent Corporations, the Alasys Constituent Corporations,
the Tripperoo Constituent Corporations, the Rising Moon Constituent
Corporations, the Alamo (Puerto Rico) Constituent Corporations, the Alamo Sales
Constituent Corporations, the Fleet Constituent Corporations, the Alamo Leasing
Constituent Corporations, the Alamo Automobile Constituent Corporations, the
Alamo Shuttle Constituent Corporations, the Tower Restaurants Constituent
Corporations, the Tower Food Constituent Corporations and the Corporate
Planners Constituent Corporations have approved and adopted this Agreement as a
plan of reorganization within the relevant provisions of Section 368 of the
Code.
V. The Shareholders of Risk Management deem it advisable to
transfer all of their respective interests in Risk Management to Republic in
exchange for certain shares of Republic Common Stock (as hereinafter defined),
on the terms and subject to the conditions set forth in this Agreement.
W. The partners of DKBERT Assoc. and RKCTR and the limited
partners of Alasys, Ltd. and Guy Salmon, Ltd. (collectively, the "Conveyed
Partnerships") deem it advisable to transfer all of their respective
Partnership Interests in the Conveyed Partnerships to entities directly or
indirectly owned by Republic in exchange for certain shares of Republic Common
Stock (as hereinafter defined), on the terms and subject to the conditions set
forth in this Agreement.
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NOW, THEREFORE, in consideration of the mutual covenants and
undertakings contained herein, and subject to and on the terms and conditions
herein set forth, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND TERMS
Section 1.1 Certain Definitions. As used in this Agreement, the
following terms shall have the meanings set forth or as referenced below:
"Affiliate" shall mean, as to any person, any other person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such person. The term "control" (including, with correlative
meanings, the terms "controlled by" and "under common control with"), as
applied to any person, means the possession, direct or indirect, of the power
to direct or cause the direction of the management and policies of such person,
whether through the ownership of voting securities or other ownership interest,
by contract or otherwise.
"Agreement" shall mean this Agreement, as the same may be amended or
supplemented from time to time in accordance with the terms hereof.
"Alamo" shall have the meaning set forth in the recitals hereto.
"Balance Sheet" shall have the meaning set forth in Section 4.7
hereof.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
day on which banks in New York City are authorized or obligated by law or
executive order to close.
"Car Rental Business" shall mean the daily general use automobile
rental business as conducted by the Conveyed Entities and their Subsidiaries as
of the date hereof.
"Claim" shall have the meaning set forth in Section 8.4 hereof.
"Claim Notice" shall have the meaning set forth in Section 8.4 hereof.
"Clean-up" shall mean all actions required to: (a) clean-up, remove,
treat or remediate Hazardous Materials; (b) prevent the Release of Hazardous
Materials so that they do not migrate, endanger or threaten to endanger public
health or welfare; (c) perform pre-remedial studies and investigations and
post-remedial monitoring and care; or (d) respond to any government requests
for information or documents in any way relating to clean-up, removal,
treatment or remediation or potential clean-up, removal, treatment or
remediation of Hazardous Materials.
-6-
"Closing" shall mean the closing of the transactions contemplated by
this Agreement.
"Closing Date" shall have the meaning set forth in Article III hereof.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Company Common Stock" shall have the meaning set forth in Section
2.24(b) hereof.
"Competition Laws" shall mean statutes, rules, regulations, orders,
decrees, and other laws that prohibit, restrict or regulate actions having the
purpose or effect of monopolization, lessening of competition or restraint of
trade.
"Computer Programs" shall mean (a) any and all computer software
programs, (b) databases and compilations, including any and all data and
collections of data, whether machine readable or otherwise, (c) all
descriptions, flow-charts and other work product used to design, plan, organize
and develop any of the foregoing, and (d) all documentation, including user
manuals and training materials, relating to any of the foregoing.
"Confidentiality Agreement" shall mean the Confidentiality Agreement,
dated June 21, 1996 between Republic and Alamo.
"Conveyed Corporations" shall have the meaning set forth in the
recitals hereto.
"Conveyed Entities" shall have the meaning set forth in the first
paragraph of this Agreement.
"Conveyed Partnerships" shall have the meaning set forth in the
recitals hereto.
"Effective Time" shall have the meaning set forth in Article III.
"Environmental Claim" shall mean any claim, action, cause of action,
investigation or written notice by any person or entity alleging potential
liability (including potential liability for investigatory costs, Clean-up
costs, governmental response costs, natural resources damages, property
damages, personal injuries, or penalties) directly arising out of, based on or
resulting from (a) the presence, or Release, of any Hazardous Material at any
Real Property owned, leased or operated by the Conveyed Entities or any of
their Subsidiaries, or (b) circumstances forming the basis of any violation, or
alleged violation, of any Environmental Law.
"Environmental Costs" shall mean, without limitation, any actual
clean-up costs, remediation, removal, or other response costs (which without
limitation shall include costs to cause the Company to come into compliance
with Environmental Laws), investigation costs (including without limitation
fees of consultants, counsel, and other experts in connection with any
environmental investigation, testing, audits or studies), losses, liabilities
or obligations (including without limitation liabilities or obligations under
any lease or other contract), payments, damages (including without limitation
any
-7-
actual, punitive or consequential damages under any statutory laws, common law
cause of action or contractual obligations or otherwise, including without
limitation damages (a) of third parties for personal injury or property damage,
or (b) to natural resources), civil or criminal fines or penalties, judgments,
and amounts paid in settlement arising out of, relating to or resulting from
any Environmental Matter or Environmental Law.
"Environmental Laws" shall mean all applicable federal, state, local
and foreign laws and regulations in effect as of the date hereof relating to
pollution or protection of human health or the environment, including laws
relating to Releases or threatened Releases of Hazardous Materials or otherwise
relating to the manufacture, use, treatment, storage, disposal, transport or
handling of Hazardous Materials and all laws and regulations with regard to
recordkeeping, notification, disclosure and reporting requirements respecting
Hazardous Materials.
"Environmental Liability" shall mean any liability resulting from,
relating to or arising out of any Environmental Matter.
"Environmental Matter" shall mean any matter arising out of, relating
to, or resulting from pollution, contamination, protection of the environment,
human health or safety, health or safety of employees, sanitation, and any
matters relating to emissions, discharges, disseminations, Releases or
threatened Releases of Hazardous Substances into the air (indoor and outdoor),
surface water, groundwater, soil, land surface or subsurface, buildings,
facilities, real or personal property or fixtures or otherwise arising out of,
relating to, or resulting from the manufacture, processing, distribution, use,
treatment, storage, disposal, transport, handling, Release or threatened
Release of Hazardous Materials.
"Environmental Permits" shall mean all material permits, licenses,
certificates, approvals and other governmental authorizations required under
any applicable Environmental Law.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"ERISA Affiliate" shall have the meaning set forth in Section 4.17(a)
hereof.
"ERISA Plans" shall have the meaning set forth in Section 4.17(a)
hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Financing Lease" shall mean any lease of property, real or personal,
the obligations of the lessee in respect of which are required in accordance
with GAAP to be capitalized on a balance sheet of the lessee.
"Franchisee" shall mean any person who owns or possesses the right to
operate an "Alamo Rent-A-Car" business under a franchise or license agreement
entered into with Alamo or any of its Affiliates or any Subfranchisor.
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"FTC Act" shall mean the Federal Trade Commission Act, as amended, and
the rules and regulations of the Federal Trade Commission promulgated
thereunder, including Disclosure Requirements and Prohibitions Concerning
Franchising and Business Opportunity Ventures, all as the same shall be in
effect from time to time.
"GAAP" shall mean United States generally accepted accounting
principles and practices in effect as of the date of this Agreement and as
applied by the Conveyed Entities and their Subsidiaries, on a basis consistent
with past practice.
"Governmental Authority" shall mean any supranational, national,
federal, state or local judicial, legislative, executive or regulatory
authority of any government.
"Hazardous Materials" shall mean all substances defined as Hazardous
Substances, Oils, Pollutants or Contaminants in the National Oil and Hazardous
Substances Pollution Contingency Plan, 40 C.F.R. Section 300.5, or defined as
such by, or regulated as such under, any Environmental Law.
"Hazardous Substances" shall mean any hazardous substances within the
meaning of 101(14) of CERCLA, 42 U.S.C. Section 9601(14).
"HSR Act" shall mean the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended.
"Income Tax" or "Income Taxes" shall mean any federal, state, local or
foreign tax based upon or measured by net income and any interest and/or
penalties thereon.
"Indebtedness" of any person at any date shall mean (a) any
indebtedness of such person for borrowed money which is evidenced by a note,
bond, debenture or similar instrument and (b) any obligation of such person
under Financing Leases, in each case other than any such indebtedness or
obligation with respect to which each obligor and each obligee is either a
Conveyed Entity or a Subsidiary thereof.
"Indemnified Party" and "Indemnified Parties" shall have the meanings
set forth in Section 8.4 hereof.
"Intellectual Property" shall mean all industrial and intellectual
property rights used in the business of the Conveyed Entities or any of their
Subsidiaries as currently conducted, including all patents and patent
applications; trademarks, trademark registrations and applications; trade
names; service marks, service mark registrations and applications; copyrights,
copyright registrations and applications; Computer Programs; technology, trade
secrets, proprietary processes and formulae.
"IRS" shall mean the Internal Revenue Service of the United States.
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"Knowledge" and "Known" shall mean, where any representation or
warranty of any party to this Agreement is qualified to such party's
"knowledge" (or words of similar import), the actual knowledge (without
independent investigation or inquiry) of (a) each Shareholder, as to itself or
himself, in the case of the Shareholders, (b) Michael S. Egan, D. Keith Cobb,
Roger Ballou and/or N. Maria Menendez, in the case of the Conveyed Entities,
and (c) H. Wayne Huizenga, Steven R. Berrard and/or Michael S. Karsner, in the
case of Republic and the Republic Subsidiaries.
"Laws" shall mean any federal, state, local or foreign law, statute,
ordinance, rule, regulation, order, judgment or decree, administrative order,
decree, administrative and judicial decision and any other executive or
legislative proclamation, in each case other than Environmental Laws.
"Licenses" shall have the meaning set forth in Section 4.15(c) hereof.
"Liens" shall mean any lien, security interest, mortgage, charge or
similar encumbrance.
"Litigation" shall mean any litigation, suit, claim, action or
proceeding before any arbitrator or Governmental Authority.
"Local Business" shall mean the vehicle rental or sale business not
serviced by a rental location on the property of an airport.
"Losses" shall have the meaning set forth in Section 8.2 hereof.
"Material Adverse Effect" shall mean a material adverse effect on the
business, results of operations or financial condition of the Conveyed Entities
and their Subsidiaries, when taken as a combined and/or consolidated whole.
"Material Contracts" shall have the meaning set forth in Section
4.14(a) hereof.
"Notice Period" shall have the meaning set forth in Section 8.4
hereof.
"Partnership Interests" shall mean (a) all of the partnership
interests of DKBERT Assoc. and RKCTR and (b) all of the limited partnership
interests of Guy Salmon, Ltd. and Alasys, Ltd.
"PBGC" shall have the meaning set forth in Section 4.17(c) hereof.
"Permits" shall mean as to any person, all material licenses, permits,
franchises, orders, approvals, concessions, registrations, authorizations and
qualifications with and under all federal, state, local or foreign laws and
Governmental Authorities, in each case other than Environmental Permits.
"Person" shall mean an individual, a corporation, a partnership, an
association, a trust or other entity or organization.
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"Plans" shall have the meaning set forth in Section 4.17(a) hereof.
"Real Property" shall have the meaning set forth in Section 4.10(a)
hereof.
"Registration Statement" shall have the meaning set forth in Section
4.23 hereof.
"Release" shall mean any spill, emission, leaking, pumping, injection,
deposit, disposal, discharge, dispersal, leaching or migration into the indoor
or outdoor environment (including ambient air, surface water, groundwater and
surface or subsurface strata), or into or out of any Real Property, including
the movement of Hazardous Materials through or in the air, soil, surface water,
groundwater or property.
"Replacement Business" shall mean the replacement vehicle business
consisting of (a) the provision of daily rental vehicles to customers of
service stations, car dealerships and similar businesses when such customers'
vehicles are being serviced and (b) the provision of daily rental vehicles to
insureds when such vehicle rental is provided by or approved by an insurance
company under a policy with such insured or another Person.
"Republic" shall have the meaning set forth in the first paragraph of
this Agreement.
"Republic Subsidiary" and "Republic Subsidiaries" shall have the
meaning set forth in the first paragraph of this Agreement.
"Republic Subsidiary's Indemnified Parties" shall have the meaning set
forth in Section 8.2 hereof.
"Requirement of Law" shall mean as to any person, the Articles of
Incorporation and Bylaws or other organizational or governing documents of such
person, and any law, treaty, rule or regulation or order of an arbitrator or a
court or other Governmental Authority, in each case applicable to or binding
upon such person or any of its properties or assets or to which such person or
any of its properties or assets is subject.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Shareholders" shall have the meaning set forth in the first paragraph
of this Agreement.
"Shareholders' Indemnified Parties" shall have the meaning set forth
in Section 8.3(a) hereto.
"Shareholder Representative" shall mean Michael S. Egan.
"SPD" shall have the meaning set forth in Section 4.17(b)(iv) hereof.
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"Subfranchisor" shall mean any person (including an Affiliate of
Alamo) to whom Alamo or any of its Affiliates has granted the right to sell or
grant a franchise of the Car Rental Business to a third party.
"Subsidiary" shall mean, with respect to any Person, any corporation
or other organization, whether incorporated or unincorporated, of which such
Person or any other subsidiary of such Person beneficially owns a majority of
the voting or equity interests.
"Tax Claim" shall have the meaning set forth in Section 6.7(e)(iv)
hereof.
"Tax Return" shall mean any return, report, information return or
other document required to be filed with any taxing authority (including any
related or supporting information) with respect to Taxes.
"Taxes" shall mean all taxes and other like charges, fees, duties,
levies or other assessments imposed by any federal, state, local or foreign
taxing authority, including, but not limited to, income, gross receipts,
excise, property, sales, gain, use, license, capital stock, transfer,
franchise, payroll, withholding, social security or other taxes, including any
interest, penalties or additions attributable thereto.
"Tax Law" shall mean any Law relating to Taxes.
"Transfer Taxes" shall have the meaning set forth in Section 6.7(d)
hereof.
"Treasury Regulations" shall mean the United States Income Tax
Regulations, including Temporary Regulations, promulgated under the Code, as
the same may be amended hereafter from time to time.
Section 1.2 Other Terms. Other terms may be defined elsewhere in
the text of this Agreement and, unless otherwise indicated, shall have such
meaning throughout this Agreement.
Section 1.3 Other Definitional Provisions. a. The words
"hereof", "herein", "hereto" and "hereunder" and words of similar import, when
used in this Agreement, shall refer to this Agreement as a whole and not to any
particular provision of this Agreement.
(b) Terms defined in the singular shall have a comparable
meaning when used in the plural, and vice versa.
(c) The terms "dollars" and "$" shall mean United States
dollars.
(d) The word "including" shall mean "including without
limitation" and the words "include" and "includes" shall have corresponding
meanings.
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ARTICLE II
PLAN OF REORGANIZATION
Section 2.1 The Mergers.
(a) The Alamo Merger. At the Effective Time (as defined
in Section 3 below), AAC shall be merged with and into Alamo pursuant to this
Agreement and the Alamo Articles of Merger, and the separate corporate
existence of AAC shall cease. Alamo, as it exists from and after the Effective
Time, is sometimes referred to herein as the "Alamo Surviving Corporation."
(b) The Alamo Canada Merger. At the Effective Time, ACA
shall be merged with and into Alamo Canada pursuant to this Agreement and the
Alamo Canada Articles of Merger, and the separate corporate existence of ACA
shall cease. Alamo Canada, as it exists from and after the Effective Time, is
sometimes referred to herein as the "Alamo Canada Surviving Corporation."
(c) The Alamo Belgium Merger. At the Effective Time, ABA
shall be merged with and into Alamo Belgium pursuant to this Agreement and the
Alamo Belgium Articles of Merger, and the separate corporate existence of ABA
shall cease. Alamo Belgium, as it exists from and after the Effective Time, is
sometimes referred to herein as the "Alamo Belgium Surviving Corporation."
(d) The Territory Blue Merger. At the Effective Time,
TBA shall be merged with and into Territory Blue pursuant to this Agreement and
the Territory Blue Articles of Merger, and the separate corporate existence of
TBA shall cease. Territory Blue, as it exists from and after the Effective
Time, is sometimes referred to herein as the "Territory Blue Surviving
Corporation."
(e) The Tower Merger. At the Effective Time, TAG shall
be merged with and into Tower pursuant to this Agreement and the Tower Articles
of Merger, and the separate corporate existence of TAG shall cease. Tower, as
it exists from and after the Effective Time, is sometimes referred to herein as
the "Tower Surviving Corporation."
(f) The Green Corn Merger. At the Effective Time, GCA
shall be merged with and into Green Corn pursuant to this Agreement and the
Green Corn Articles of Merger, and the separate corporate existence of GCA
shall cease. Green Corn, as it exists from and after the Effective Time, is
sometimes referred to herein as the "Green Corn Surviving Corporation."
(g) The Guy Salmon Merger. At the Effective Time, GSA
shall be merged with and into Guy Salmon pursuant to this Agreement and the Guy
Salmon Articles of Merger, and the separate corporate existence of GSA shall
cease. Guy Salmon, as it exists from and after the Effective Time, is
sometimes referred to herein as the "Guy Salmon Surviving Corporation."
(h) The Alasys Merger. At the Effective Time, AC shall
be merged with and into Alasys pursuant to this Agreement and the Alasys
Articles of Merger, and the separate corporate
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existence of AC shall cease. Alasys, as it exists from and after the Effective
Time, is sometimes referred to herein as the "Alasys Surviving Corporation."
(i) The Tripperoo Merger. At the Effective Time, TWA
shall be merged with and into Tripperoo pursuant to this Agreement and the
Tripperoo Articles of Merger, and the separate corporate existence of TWA shall
cease. Tripperoo, as it exists from and after the Effective Time, is sometimes
referred to herein as the "Tripperoo Surviving Corporation."
(j) The Rising Moon Merger. At the Effective Time, RMA
shall be merged with and into Rising Moon pursuant to this Agreement and the
Rising Moon Articles of Merger, and the separate corporate existence of RMA
shall cease. Rising Moon, as it exists from and after the Effective Time, is
sometimes referred to herein as the "Rising Moon Surviving Corporation."
(k) The Alamo (Puerto Rico) Merger. At the Effective
Time, APR shall be merged with and into Alamo (Puerto Rico) pursuant to this
Agreement and the Alamo (Puerto Rico) Articles of Merger, and the separate
corporate existence of APR shall cease. Alamo (Puerto Rico), as it exists from
and after the Effective Time, is sometimes referred to herein as the "Alamo
(Puerto Rico) Surviving Corporation."
(l) The Alamo Sales Merger. At the Effective Time, AIS
shall be merged with and into Alamo Sales pursuant to this Agreement and the
Alamo Sales Articles of Merger, and the separate corporate existence of AIS
shall cease. Alamo Sales, as it exists from and after the Effective Time, is
sometimes referred to herein as the "Alamo Sales Surviving Corporation."
(m) [Intentionally Deleted].
(n) The Fleet Merger. At the Effective Time, AFL shall
be merged with and into Fleet pursuant to this Agreement and the Fleet Articles
of Merger, and the separate corporate existence of AFL shall cease. Fleet, as
it exists from and after the Effective Time, is sometimes referred to herein as
the "Fleet Surviving Corporation."
(o) The Alamo Leasing Merger. At the Effective Time, ALC
shall be merged with and into Alamo Leasing pursuant to this Agreement and the
Alamo Leasing Articles of Merger, and the separate corporate existence of ALC
shall cease. Alamo Leasing, as it exists from and after the Effective Time, is
sometimes referred to herein as the "Alamo Leasing Surviving Corporation."
(p) The Alamo Automobile Merger. At the Effective Time,
AASC shall be merged with and into Alamo Automobile pursuant to this Agreement
and the Alamo Automobile Articles of Merger, and the separate corporate
existence of AASC shall cease. Alamo Automobile, as it exists from and after
the Effective Time, is sometimes referred to herein as the "Alamo Automobile
Surviving Corporation."
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(q) The Alamo Shuttle Merger. At the Effective Time, ASC
shall be merged with and into Alamo Shuttle pursuant to this Agreement and the
Alamo Shuttle Articles of Merger, and the separate corporate existence of ASC
shall cease. Alamo Shuttle, as it exists from and after the Effective Time, is
sometimes referred to herein as the "Alamo Shuttle Surviving Corporation."
(r) The Tower Restaurants Merger. At the Effective Time,
TRC shall be merged with and into Tower Restaurants pursuant to this Agreement
and the Tower Restaurants Articles of Merger, and the separate corporate
existence of TRC shall cease. Tower Restaurants, as it exists from and after
the Effective Time, is sometimes referred to herein as the "Tower Restaurants
Surviving Corporation."
(s) The Tower Food Merger. At the Effective Time, TFB
shall be merged with and into Tower Food pursuant to this Agreement and the
Tower Food Articles of Merger, and the separate corporate existence of TFB
shall cease. Tower Food, as it exists from and after the Effective Time, is
sometimes referred to herein as the "Tower Food Surviving Corporation."
(t) The Corporate Planners Merger. At the Effective
Time, CPA shall be merged with and into Corporate Planners pursuant to this
Agreement and the Corporate Planners Articles of Merger, and the separate
corporate existence of CPA shall cease. Corporate Planners, as it exists from
and after the Effective Time, is sometimes referred to herein as the "Corporate
Planners Surviving Corporation."
(u) Effects of the Mergers. The Alamo Merger, the Alamo
Canada Merger, the Alamo Belgium Merger, the Territory Blue Merger, the Tower
Merger, the Green Corn Merger, the Guy Salmon Merger, the Alasys Merger, the
Tripperoo Merger, the Rising Moon Merger, the Alamo (Puerto Rico) Merger, the
Alamo Sales Merger, the Fleet Merger, the Alamo Leasing Merger, the Alamo
Automobile Merger, the Alamo Shuttle Merger, the Tower Restaurants Merger, the
Tower Food Merger and the Corporate Planners Merger (collectively, the
"Mergers") shall each have the effects provided therefor by the Florida
Business Corporation Act (the "Florida Statute") and, in the case of the Fleet
Merger, and the Alamo (Puerto Rico) Merger, the applicable laws of the State of
New York and the State of Delaware, respectively. Without limiting the
generality of the foregoing, and subject thereto, at the Effective Time (i) all
the rights, privileges, powers and franchises, of a public as well as of a
private nature, and all property, real, personal and mixed, and all and every
other interest belonging to or due to the Alamo Constituent Corporations, the
Alamo Canada Constituent Corporations, the Alamo Belgium Constituent
Corporations, the Territory Blue Constituent Corporations, the Tower
Constituent Corporations, the Green Corn Constituent Corporations, the Guy
Salmon Constituent Corporations, the Alasys Constituent Corporations, the
Tripperoo Constituent Corporations, the Rising Moon Constituent Corporations,
the Alamo (Puerto Rico) Constituent Corporations, the Alamo Sales Constituent
Corporations, the Fleet Constituent Corporations, the Alamo Leasing Constituent
Corporations, the Alamo Automobile Constituent Corporations, the Alamo Shuttle
Constituent Corporations, the Tower Restaurants Constituent Corporations, the
Tower Food Constituent Corporations and the Corporate Planners Constituent
Corporations (collectively, the "Constituent Corporations") shall continue to
be held by or shall be
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taken and deemed to be transferred to, and vested in, the Alamo Surviving
Corporation, the Alamo Canada Surviving Corporation, the Alamo Belgium
Surviving Corporation, the Territory Blue Surviving Corporation, the Tower
Surviving Corporation, the Green Corn Surviving Corporation, the Guy Salmon
Surviving Corporation, the Alasys Surviving Corporation, the Tripperoo
Surviving Corporation, the Rising Moon Surviving Corporation, the Alamo (Puerto
Rico) Surviving Corporation, the Alamo Sales Surviving Corporation, the Fleet
Surviving Corporation, the Alamo Leasing Surviving Corporation, the Alamo
Automobile Surviving Corporation, the Alamo Shuttle Surviving Corporation, the
Tower Restaurants Surviving Corporation, the Tower Food Surviving Corporation
and the Corporate Planners Surviving Corporation (collectively, the "Surviving
Corporations"), respectively, without further act or deed, and (ii) all debts,
liabilities, duties and obligations of the Alamo Constituent Corporations, the
Alamo Canada Constituent Corporations, the Alamo Belgium Constituent
Corporations, the Territory Blue Constituent Corporations, the Tower
Constituent Corporations, the Green Corn Constituent Corporations, the Guy
Salmon Constituent Corporations, the Alasys Constituent Corporations, the
Tripperoo Constituent Corporations, the Rising Moon Constituent Corporations,
the Alamo (Puerto Rico) Constituent Corporations, the Alamo Sales Constituent
Corporations, the Fleet Constituent Corporations, the Alamo Leasing Constituent
Corporations, the Alamo Automobile Constituent Corporations, the Alamo Shuttle
Constituent Corporations, the Tower Restaurants Constituent Corporations, the
Tower Food Constituent Corporations and the Corporate Planners Constituent
Corporations shall continue to be or shall become the debts, liabilities duties
and obligations of the Alamo Surviving Corporation, the Alamo Canada Surviving
Corporation, the Alamo Belgium Surviving Corporation, the Territory Blue
Surviving Corporation, the Tower Surviving Corporation, the Green Corn
Surviving Corporation, the Guy Salmon Surviving Corporation, the Alasys
Surviving Corporation, the Tripperoo Surviving Corporation, the Rising Moon
Surviving Corporation, the Alamo (Puerto Rico) Surviving Corporation, the Alamo
Sales Surviving Corporation, the Fleet Surviving Corporation, the Alamo Leasing
Surviving Corporation, the Alamo Automobile Surviving Corporation, the Alamo
Shuttle Surviving Corporation, the Tower Restaurants Surviving Corporation, the
Tower Food Surviving Corporation and the Corporate Planners Surviving
Corporation, respectively, without further act or deed, and neither the rights
of creditors nor any liens upon the property of the Constituent Corporations
shall be impaired by the Mergers.
(v) Articles of Incorporation; Bylaws; Directors and
Officers. The Articles of Incorporation of the Alamo Surviving Corporation,
the Alamo Canada Surviving Corporation, the Alamo Belgium Surviving
Corporation, the Territory Blue Surviving Corporation, the Tower Surviving
Corporation, the Green Corn Surviving Corporation, the Guy Salmon Surviving
Corporation, the Alasys Surviving Corporation, the Tripperoo Surviving
Corporation, the Rising Moon Surviving Corporation, the Alamo (Puerto Rico)
Surviving Corporation, the Alamo Sales Surviving Corporation, the Fleet
Surviving Corporation, the Alamo Leasing Surviving Corporation, the Alamo
Automobile Surviving Corporation, the Alamo Shuttle Surviving Corporation, the
Tower Restaurants Surviving Corporation, the Tower Food Surviving Corporation
and the Corporate Planners Surviving Corporation from and after the Effective
Time shall be the Articles of Incorporation of Alamo, Alamo Canada, Alamo
Belgium, Territory Blue, Tower, Green Corn, Guy Salmon, Alasys, Tripperoo,
Rising Moon, Alamo (Puerto Rico), Alamo Sales, Fleet, Alamo Leasing,
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Alamo Automobile, Alamo Shuttle, Tower Restaurants, Tower Food and Corporate
Planners, respectively, as in effect immediately prior to the Effective Time,
except as otherwise amended by the Alamo Articles of Merger, the Alamo Canada
Articles of Merger, the Alamo Belgium Articles of Merger, the Territory Blue
Articles of Merger, the Tower Articles of Merger, the Green Corn Articles of
Merger, the Guy Salmon Articles of Merger, the Alasys Articles of Merger, the
Tripperoo Articles of Merger, the Rising Moon Articles of Merger, the Alamo
(Puerto Rico) Articles of Merger, the Alamo Sales Articles of Merger, the Fleet
Articles of Merger, the Alamo Leasing Articles of Merger, the Alamo Automobile
Articles of Merger, the Alamo Shuttle Articles of Merger, the Tower Restaurants
Articles of Merger, the Tower Food Articles of Merger and the Corporate
Planners Articles of Merger, respectively, continuing until thereafter amended
in accordance with the provisions therein and as provided by the Florida
Statute and, in the case of the Fleet Surviving Corporation and the Alamo
(Puerto Rico) Surviving Corporation, the applicable laws of the State of New
York and the State of Delaware, respectively. The Bylaws of the Alamo
Surviving Corporation, the Alamo Canada Surviving Corporation, the Alamo
Belgium Surviving Corporation, the Territory Blue Surviving Corporation, the
Tower Surviving Corporation, the Green Corn Surviving Corporation, the Guy
Salmon Surviving Corporation, the Alasys Surviving Corporation, the Tripperoo
Surviving Corporation, the Rising Moon Surviving Corporation, the Alamo (Puerto
Rico) Surviving Corporation, the Alamo Sales Surviving Corporation, the Fleet
Surviving Corporation, the Alamo Leasing Surviving Corporation, the Alamo
Automobile Surviving Corporation, the Alamo Shuttle Surviving Corporation, the
Tower Restaurants Surviving Corporation, the Tower Food Surviving Corporation
and the Corporate Planners Surviving Corporation from and after the Effective
Time shall be the Bylaws of Alamo, Alamo Canada, Alamo Belgium, Territory Blue,
Tower, Green Corn, Guy Salmon, Alasys, Tripperoo, Rising Moon, Alamo (Puerto
Rico), Alamo Sales, Fleet, Alamo Leasing, Alamo Automobile, Alamo Shuttle,
Tower Restaurants, Tower Food and Corporate Planners, respectively, as in
effect immediately prior to the Effective Time, continuing until thereafter
amended in accordance with the provisions therein and the Articles of
Incorporation of the Surviving Corporations and as provided by the Florida
Statute and, in the case of the Fleet Surviving Corporation, and the Alamo
(Puerto Rico) Surviving Corporation, the applicable laws of the State of New
York, and the State of Delaware, respectively. The initial directors of each
Surviving Corporation (other than the Fleet Surviving Corporation) shall be the
directors of the Republic Subsidiaries in each case until their successors are
elected and qualified; the initial directors of the Fleet Surviving Corporation
shall be the directors of Fleet, until their successors are duly elected and
qualified; and the initial officers of each Surviving Corporation shall be the
officers of the Conveyed Entities, respectively, in each case until their
successors are duly elected and qualified.
Section 2.2 Conversion of Alamo Securities. At the Effective
Time, by virtue of the Alamo Merger and without any action on the part of any
party hereto, the shares of capital stock of each of the Alamo Constituent
Corporations shall be converted as follows:
(a) Capital Stock of AAC. Each issued and outstanding
share of capital stock of AAC shall be converted into one share of validly
issued, fully paid and non-assessable common stock of the Alamo Surviving
Corporation.
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(b) Cancellation of Certain Shares of Capital Stock of
Alamo. All shares of capital stock of Alamo that are owned directly or
indirectly by Alamo shall be canceled and no stock of Republic or other
consideration shall be delivered in exchange therefor.
(c) Conversion of Capital Stock of Alamo. Each issued
and outstanding share of common stock of Alamo, $1.00 par value per share
("Alamo Common Stock") (other than shares to be canceled pursuant to Section
2.2(b)), owned legally and beneficially by the Shareholders immediately prior
to the Effective Time and constituting all of the issued and outstanding shares
of Alamo Common Stock shall automatically be canceled and extinguished and
converted at the Effective Time, without any action on the part of the
Shareholders, into that number of shares of Republic common stock, $.01 par
value per share ("Republic Common Stock"), that is equal to the Alamo
Consideration (as defined in Section 2.2(d) below) divided by 980 (or such
other number determined pursuant to the ultimate paragraph of Section 6.2
hereof). Promptly after the Closing, Republic shall deliver to the
Shareholders that number of shares of Republic Common Stock that the
Shareholders are entitled to receive based upon the foregoing calculation. All
such shares of Alamo Common Stock, when so converted, shall no longer be
outstanding and shall automatically be canceled and retired and shall cease to
exist, and each holder of a certificate representing any such shares shall
cease to have any rights with respect thereto, except the right to receive the
shares of Republic Common Stock to be issued in consideration therefor upon the
surrender of such certificate in accordance with Section 2.24 hereof.
(d) Alamo Consideration. The aggregate consideration to
be paid for the Alamo Common Stock shall be that percentage of the Aggregate
Consideration determined by the Shareholders prior to the Closing and set forth
on Schedule 2, subject in all instances to the prior consent of Republic (which
consent shall not be withheld unreasonably) (the "Alamo Consideration").
Section 2.3 Conversion of Alamo Canada Securities. At the
Effective Time, by virtue of the Alamo Canada Merger and without any action on
the part of any party hereto, the shares of capital stock of each of the Alamo
Canada Constituent Corporations shall be converted as follows:
(a) Capital Stock of ACA. Each issued and outstanding
share of capital stock of ACA shall be converted into one share of validly
issued, fully paid and non-assessable common stock of the Alamo Canada
Surviving Corporation.
(b) Cancellation of Certain Shares of Capital Stock of
Alamo Canada. All shares of capital stock of Alamo Canada that are owned
directly or indirectly by Alamo Canada shall be canceled and no stock of
Republic or other consideration shall be delivered in exchange therefor.
(c) Conversion of Capital Stock of Alamo Canada. Each
issued and outstanding share of common stock of Alamo Canada, $1.00 par value
per share ("Alamo Canada Common Stock") (other than shares to be canceled
pursuant to Section 2.3(b)), owned legally and beneficially by the Shareholders
immediately prior to the Effective Time and constituting all of the issued and
outstanding shares of Alamo Canada Common Stock shall automatically be canceled
and extinguished
-18-
and converted at the Effective Time, without any action on the part of the
Shareholders, into that number of shares of Republic Common Stock that is equal
to the Alamo Canada Consideration (as defined in Section 2.3(d) below) divided
by 980. Promptly after the Closing, Republic shall deliver to the Shareholders
that number of shares of Republic Common Stock that the Shareholders are
entitled to receive based upon the foregoing calculation. All such shares of
Alamo Canada Common Stock, when so converted, shall no longer be outstanding
and shall automatically be canceled and retired and shall cease to exist, and
each holder of a certificate representing any such shares shall cease to have
any rights with respect thereto, except the right to receive the shares of
Republic Common Stock to be issued in consideration therefor upon the surrender
of such certificate in accordance with Section 2.24 hereof.
(d) Alamo Canada Consideration. The aggregate
consideration to be paid for the Alamo Canada Common Stock shall be that
percentage of the Aggregate Consideration determined by the Shareholders prior
to the Closing and set forth on Schedule 2, subject in all instances to the
prior consent of Republic (which consent shall not be withheld unreasonably)
(the "Alamo Canada Consideration").
Section 2.4 Conversion of Alamo Belgium Securities. At the
Effective Time, by virtue of the Alamo Belgium Merger and without any action on
the part of any party hereto, the shares of capital stock of each of the Alamo
Belgium Constituent Corporations shall be converted as follows:
(a) Capital Stock of ABA. Each issued and outstanding
share of capital stock of ABA shall be converted into one share of validly
issued, fully paid and non-assessable common stock of the Alamo Belgium
Surviving Corporation.
(b) Cancellation of Certain Shares of Capital Stock of
Alamo Belgium. All shares of capital stock of Alamo Belgium that are owned
directly or indirectly by Alamo Belgium shall be canceled and no stock of
Republic or other consideration shall be delivered in exchange therefor.
(c) Conversion of Capital Stock of Alamo Belgium. Each
issued and outstanding share of common stock of Alamo Belgium, $1.00 par value
per share ("Alamo Belgium Common Stock") (other than shares to be canceled
pursuant to Section 2.4(b)), owned legally and beneficially by the Shareholders
immediately prior to the Effective Time and constituting all of the issued and
outstanding shares of Alamo Belgium Common Stock shall automatically be
canceled and extinguished and converted at the Effective Time, without any
action on the part of the Shareholders, into that number of shares of Republic
Common Stock that is equal to the Alamo Belgium Consideration (as defined in
Section 2.4(d) below) divided by 980. Promptly after the Closing, Republic
shall deliver to the Shareholders that number of shares of Republic Common
Stock that the Shareholders are entitled to receive based upon the foregoing
calculation. All such shares of Alamo Belgium Common Stock, when so converted,
shall no longer be outstanding and shall automatically be canceled and retired
and shall cease to exist, and each holder of a certificate representing any
such shares shall cease to have any rights with respect thereto, except the
right to receive the shares of
-19-
Republic Common Stock to be issued in consideration therefor upon the surrender
of such certificate in accordance with Section 2.24 hereof.
(d) Alamo Belgium Consideration. The aggregate
consideration to be paid for the Alamo Belgium Common Stock shall be that
percentage of the Aggregate Consideration determined by the Shareholders prior
to the Closing and set forth on Schedule 2, subject in all instances to the
prior consent of Republic (which consent shall not be withheld unreasonably)
(the "Alamo Belgium Consideration").
Section 2.5 Conversion of Territory Blue Securities. At the
Effective Time, by virtue of the Territory Blue Merger and without any action
on the part of any party hereto, the shares of capital stock of each of the
Territory Blue Constituent Corporations shall be converted as follows:
(a) Capital Stock of TBA. Each issued and outstanding
share of capital stock of TBA shall be converted into one share of validly
issued, fully paid and non-assessable common stock of the Territory Blue
Surviving Corporation.
(b) Cancellation of Certain Shares of Capital Stock of
Territory Blue. All shares of capital stock of Territory Blue that are owned
directly or indirectly by Territory Blue shall be canceled and no stock of
Republic or other consideration shall be delivered in exchange therefor.
(c) Conversion of Capital Stock of Territory Blue. Each
issued and outstanding share of common stock of Territory Blue, $1.00 par value
per share ("Territory Blue Common Stock") (other than shares to be canceled
pursuant to Section 2.5(b)), owned legally and beneficially by the Shareholders
immediately prior to the Effective Time and constituting all of the issued and
outstanding shares of Territory Blue Common Stock shall automatically be
canceled and extinguished and converted at the Effective Time, without any
action on the part of the Shareholders, into that number of shares of Republic
Common Stock that is equal to the Territory Blue Consideration (as defined in
Section 2.5(d) below) divided by 980. Promptly after the Closing, Republic
shall deliver to the Shareholders that number of shares of Republic Common
Stock that the Shareholders are entitled to receive based upon the foregoing
calculation. All such shares of Territory Blue Common Stock, when so
converted, shall no longer be outstanding and shall automatically be canceled
and retired and shall cease to exist, and each holder of a certificate
representing any such shares shall cease to have any rights with respect
thereto, except the right to receive the shares of Republic Common Stock to be
issued in consideration therefor upon the surrender of such certificate in
accordance with Section 2.24 hereof.
(d) Territory Blue Consideration. The aggregate
consideration to be paid for the Territory Blue Common Stock shall be that
percentage of the Aggregate Consideration determined by the Shareholders prior
to the Closing and set forth on Schedule 2, subject in all instances to the
prior consent of Republic (which consent shall not be withheld unreasonably)
(the "Territory Blue Consideration").
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Section 2.6 Conversion of Tower Securities. At the Effective
Time, by virtue of the Tower Merger and without any action on the part of any
party hereto, the shares of capital stock of each of the Tower Constituent
Corporations shall be converted as follows:
(a) Capital Stock of TAG. Each issued and outstanding
share of capital stock of TAG shall be converted into one share of validly
issued, fully paid and non-assessable common stock of the Tower Surviving
Corporation.
(b) Cancellation of Certain Shares of Capital Stock of
Tower. All shares of capital stock of Tower that are owned directly or
indirectly by Tower shall be canceled and no stock of Republic or other
consideration shall be delivered in exchange therefor.
(c) Conversion of Capital Stock of Tower. Each issued
and outstanding share of common stock of Tower, $1.00 par value per share
("Tower Common Stock") (other than shares to be canceled pursuant to Section
2.6(b)), owned legally and beneficially by the Shareholders immediately prior
to the Effective Time and constituting all of the issued and outstanding shares
of Tower Common Stock shall automatically be canceled and extinguished and
converted at the Effective Time, without any action on the part of the
Shareholders, into that number of shares of Republic Common Stock that is equal
to the Tower Consideration (as defined in Section 2.6(d) below) divided by 980.
Promptly after the Closing, Republic shall deliver to the Shareholders that
number of shares of Republic Common Stock that the Shareholders are entitled to
receive based upon the foregoing calculation. All such shares of Tower Common
Stock, when so converted, shall no longer be outstanding and shall
automatically be canceled and retired and shall cease to exist, and each holder
of a certificate representing any such shares shall cease to have any rights
with respect thereto, except the right to receive the shares of Republic Common
Stock to be issued in consideration therefor upon the surrender of such
certificate in accordance with Section 2.24 hereof.
(d) Tower Consideration. The aggregate consideration to
be paid for the Tower Common Stock shall be that percentage of the Aggregate
Consideration determined by the Shareholders prior to the Closing and set forth
on Schedule 2, subject in all instances to the prior consent of Republic (which
consent shall not be withheld unreasonably) (the "Tower Consideration").
Section 2.7 Conversion of Green Corn Securities. At the
Effective Time, by virtue of the Green Corn Merger and without any action on
the part of any party hereto, the shares of capital stock of each of the Green
Corn Constituent Corporations shall be converted as follows:
(a) Capital Stock of GCA. Each issued and outstanding
share of capital stock of GCA shall be converted into one share of validly
issued, fully paid and non-assessable common stock of the Green Corn Surviving
Corporation.
(b) Cancellation of Certain Shares of Capital Stock of
Green Corn. All shares of capital stock of Green Corn that are owned directly
or indirectly by Green Corn shall be canceled and no stock of Republic or other
consideration shall be delivered in exchange therefor.
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(c) Conversion of Capital Stock of Green Corn. Each
issued and outstanding share of common stock of Green Corn, $.10 par value per
share ("Green Corn Common Stock") (other than shares to be canceled pursuant to
Section 2.7(b)), owned legally and beneficially by the Shareholders immediately
prior to the Effective Time and constituting all of the issued and outstanding
shares of Green Corn Common Stock shall automatically be canceled and
extinguished and converted at the Effective Time, without any action on the
part of the Shareholders, into that number of shares of Republic Common Stock
that is equal to the Green Corn Consideration (as defined in Section 2.7(d)
below) divided by 326.67. Promptly after the Closing, Republic shall deliver
to the Shareholders that number of shares of Republic Common Stock that the
Shareholders are entitled to receive based upon the foregoing calculation. All
such shares of Green Corn Common Stock, when so converted, shall no longer be
outstanding and shall automatically be canceled and retired and shall cease to
exist, and each holder of a certificate representing any such shares shall
cease to have any rights with respect thereto, except the right to receive the
shares of Republic Common Stock to be issued in consideration therefor upon the
surrender of such certificate in accordance with Section 2.24 hereof.
(d) Green Corn Consideration. The aggregate
consideration to be paid for the Green Corn Common Stock shall be that
percentage of the Aggregate Consideration determined by the Shareholders prior
to the Closing and set forth on Schedule 2, subject in all instances to the
prior consent of Republic (which consent shall not be withheld
unreasonably)(the "Green Corn Consideration").
Section 2.8 Conversion of Guy Salmon Securities. At the
Effective Time, by virtue of the Guy Salmon Merger and without any action on
the part of any party hereto, the shares of capital stock of each of the Guy
Salmon Constituent Corporations shall be converted as follows:
(a) Capital Stock of GSA. Each issued and outstanding
share of capital stock of GSA shall be converted into one share of validly
issued, fully paid and non-assessable common stock of the Guy Salmon Surviving
Corporation.
(b) Cancellation of Certain Shares of Capital Stock of
Guy Salmon. All shares of capital stock of Guy Salmon that are owned directly
or indirectly by Guy Salmon shall be canceled and no stock of Republic or other
consideration shall be delivered in exchange therefor.
(c) Conversion of Capital Stock of Guy Salmon. Each
issued and outstanding share of common stock of Guy Salmon, $1.00 par value per
share ("Guy Salmon Common Stock") (other than shares to be canceled pursuant to
Section 2.8(b)), owned legally and beneficially by the Shareholders immediately
prior to the Effective Time and constituting all of the issued and outstanding
shares of Guy Salmon Common Stock shall automatically be canceled and
extinguished and converted at the Effective Time, without any action on the
part of the Shareholders, into that number of shares of Republic Common Stock
that is equal to the Guy Salmon Consideration (as defined in Section 2.8(d)
below) divided by 980. Promptly after the Closing, Republic shall deliver to
the Shareholders that number of shares of Republic Common Stock that the
Shareholders are
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entitled to receive based upon the foregoing calculation. All such shares of
Guy Salmon Common Stock, when so converted, shall no longer be outstanding and
shall automatically be canceled and retired and shall cease to exist, and each
holder of a certificate representing any such shares shall cease to have any
rights with respect thereto, except the right to receive the shares of Republic
Common Stock to be issued in consideration therefor upon the surrender of such
certificate in accordance with Section 2.24 hereof.
(d) Guy Salmon Consideration. The aggregate
consideration to be paid for the Guy Salmon Common Stock shall be that
percentage of the Aggregate Consideration determined by the Shareholders prior
to the Closing and set forth on Schedule 2, subject in all instances to the
prior consent of Republic (which consent shall not be withheld unreasonably)
(the "Guy Salmon Consideration").
Section 2.9 Conversion of Alasys Securities. At the Effective
Time, by virtue of the Alasys Merger and without any action on the part of any
party hereto, the shares of capital stock of each of the Alasys Constituent
Corporations shall be converted as follows:
(a) Capital Stock of AC. Each issued and outstanding
share of capital stock of AC shall be converted into one share of validly
issued, fully paid and non-assessable common stock of the Alasys Surviving
Corporation.
(b) Cancellation of Certain Shares of Capital Stock of
Alasys. All shares of capital stock of Alasys that are owned directly or
indirectly by Alasys shall be canceled and no stock of Republic or other
consideration shall be delivered in exchange therefor.
(c) Conversion of Capital Stock of Alasys. Each issued
and outstanding share of common stock of Alasys, $1.00 par value per share
("Alasys Common Stock") (other than shares to be canceled pursuant to Section
2.9(b)), owned legally and beneficially by the Shareholders immediately prior
to the Effective Time and constituting all of the issued and outstanding shares
of Alasys Common Stock shall automatically be canceled and extinguished and
converted at the Effective Time, without any action on the part of the
Shareholders, into that number of shares of Republic Common Stock that is equal
to the Alasys Consideration (as defined in Section 2.9(d) below) divided by
980. Promptly after the Closing, Republic shall deliver to the Shareholders
that number of shares of Republic Common Stock that the Shareholders are
entitled to receive based upon the foregoing calculation. All such shares of
Alasys Common Stock, when so converted, shall no longer be outstanding and
shall automatically be canceled and retired and shall cease to exist, and each
holder of a certificate representing any such shares shall cease to have any
rights with respect thereto, except the right to receive the shares of Republic
Common Stock to be issued in consideration therefor upon the surrender of such
certificate in accordance with Section 2.24 hereof.
(d) Alasys Consideration. The aggregate consideration to
be paid for the Alasys Common Stock shall be that percentage of the Aggregate
Consideration determined by the
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Shareholders prior to the Closing and set forth on Schedule 2, subject in all
instances to the prior consent of Republic (which consent shall not be withheld
unreasonably) (the "Alasys Consideration").
Section 2.10 Conversion of Tripperoo Securities. At the Effective
Time, by virtue of the Tripperoo Merger and without any action on the part of
any party hereto, the shares of capital stock of each of the Tripperoo
Constituent Corporations shall be converted as follows:
(a) Capital Stock of TWA. Each issued and outstanding
share of capital stock of TWA shall be converted into one share of validly
issued, fully paid and non-assessable common stock of the Tripperoo Surviving
Corporation.
(b) Cancellation of Certain Shares of Capital Stock of
Tripperoo. All shares of capital stock of Tripperoo that are owned directly or
indirectly by Tripperoo shall be canceled and no stock of Republic or other
consideration shall be delivered in exchange therefor.
(c) Conversion of Capital Stock of Tripperoo. Each
issued and outstanding share of common stock of Tripperoo, no par value per
share ("Tripperoo Common Stock") (other than shares to be canceled pursuant to
Section 2.10(b)), owned legally and beneficially by the Shareholders
immediately prior to the Effective Time and constituting all of the issued and
outstanding shares of Tripperoo Common Stock shall automatically be canceled
and extinguished and converted at the Effective Time, without any action on the
part of the Shareholders, into that number of shares of Republic Common Stock
that is equal to the Tripperoo Consideration (as defined in Section 2.10(d)
below) divided by 980. Promptly after the Closing, Republic shall deliver to
the Shareholders that number of shares of Republic Common Stock that the
Shareholders are entitled to receive based upon the foregoing calculation. All
such shares of Tripperoo Common Stock, when so converted, shall no longer be
outstanding and shall automatically be canceled and retired and shall cease to
exist, and each holder of a certificate representing any such shares shall
cease to have any rights with respect thereto, except the right to receive the
shares of Republic Common Stock to be issued in consideration therefor upon the
surrender of such certificate in accordance with Section 2.24 hereof.
(d) Tripperoo Consideration. The aggregate consideration
to be paid for the Tripperoo Common Stock shall be that percentage of the
Aggregate Consideration determined by the Shareholders prior to the Closing and
set forth on Schedule 2, subject in all instances to the prior consent of
Republic (which consent shall not be withheld unreasonably) (the "Tripperoo
Consideration").
Section 2.11 Conversion of Rising Moon Securities. At the
Effective Time, by virtue of the Rising Moon Merger and without any action on
the part of any party hereto, the shares of capital stock of each of the Rising
Moon Constituent Corporations shall be converted as follows:
(a) Capital Stock of RMA. Each issued and outstanding
share of capital stock of RMA shall be converted into one share of validly
issued, fully paid and non-assessable common stock of the Rising Moon Surviving
Corporation.
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(b) Cancellation of Certain Shares of Capital Stock of
Rising Moon. All shares of capital stock of Rising Moon that are owned
directly or indirectly by Rising Moon shall be canceled and no stock of
Republic or other consideration shall be delivered in exchange therefor.
(c) Conversion of Capital Stock of Rising Moon. Each
issued and outstanding share of common stock of Rising Moon, $1.00 par value
per share ("Rising Moon Common Stock") (other than shares to be canceled
pursuant to Section 2.11(b)), owned legally and beneficially by the
Shareholders immediately prior to the Effective Time and constituting all of
the issued and outstanding shares of Rising Moon Common Stock shall
automatically be canceled and extinguished and converted at the Effective Time,
without any action on the part of the Shareholders, into that number of shares
of Republic Common Stock that is equal to the Rising Moon Consideration (as
defined in Section 2.11(d) below) divided by 980. Promptly after the Closing,
Republic shall deliver to the Shareholders that number of shares of Republic
Common Stock that the Shareholders are entitled to receive based upon the
foregoing calculation. All such shares of Rising Moon Common Stock, when so
converted, shall no longer be outstanding and shall automatically be canceled
and retired and shall cease to exist, and each holder of a certificate
representing any such shares shall cease to have any rights with respect
thereto, except the right to receive the shares of Republic Common Stock to be
issued in consideration therefor upon the surrender of such certificate in
accordance with Section 2.24 hereof.
(d) Rising Moon Consideration. The aggregate
consideration to be paid for the Rising Moon Common Stock shall be that
percentage of the Aggregate Consideration determined by the Shareholders prior
to the Closing and set forth on Schedule 2, subject in all instances to the
prior consent of Republic (which consent shall not be withheld unreasonably)
(the "Rising Moon Consideration").
Section 2.12 Conversion of Alamo (Puerto Rico) Securities. At the
Effective Time, by virtue of the Alamo (Puerto Rico) Merger and without any
action on the part of any party hereto, the shares of capital stock of each of
the Alamo (Puerto Rico) Constituent Corporations shall be converted as follows:
(a) Capital Stock of APR. Each issued and outstanding
share of capital stock of APR shall be converted into one share of validly
issued, fully paid and non-assessable common stock of the Alamo (Puerto Rico)
Surviving Corporation.
(b) Cancellation of Certain Shares of Capital Stock of
Alamo (Puerto Rico). All shares of capital stock of Alamo (Puerto Rico) that
are owned directly or indirectly by Alamo (Puerto Rico) shall be canceled and
no stock of Republic or other consideration shall be delivered in exchange
therefor.
(c) Conversion of Capital Stock of Alamo (Puerto Rico).
Each issued and outstanding share of common stock of Alamo (Puerto Rico), $1.00
par value per share ("Alamo (Puerto Rico) Common Stock") (other than shares to
be canceled pursuant to Section 2.12(b)),
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owned legally and beneficially by the Shareholders immediately prior to the
Effective Time and constituting all of the issued and outstanding shares of
Alamo (Puerto Rico) Common Stock shall automatically be canceled and
extinguished and converted at the Effective Time, without any action on the
part of the Shareholders, into that number of shares of Republic Common Stock
that is equal to the Alamo (Puerto Rico) Consideration (as defined in Section
2.12(d) below) divided by 980. Promptly after the Closing, Republic shall
deliver to the Shareholders that number of shares of Republic Common Stock that
the Shareholders are entitled to receive based upon the foregoing calculation.
All such shares of Alamo (Puerto Rico) Common Stock, when so converted, shall
no longer be outstanding and shall automatically be canceled and retired and
shall cease to exist, and each holder of a certificate representing any such
shares shall cease to have any rights with respect thereto, except the right to
receive the shares of Republic Common Stock to be issued in consideration
therefor upon the surrender of such certificate in accordance with Section 2.24
hereof.
(d) Alamo (Puerto Rico) Consideration. The aggregate
consideration to be paid for the Alamo (Puerto Rico) Common Stock shall be that
percentage of the Aggregate Consideration determined by the Shareholders prior
to the Closing and set forth on Schedule 2, subject in all instances to the
prior consent of Republic (which consent shall not be withheld unreasonably)
(the "Alamo (Puerto Rico) Consideration").
Section 2.13 Conversion of Alamo Sales Securities. At the
Effective Time, by virtue of the Alamo Sales Merger and without any action on
the part of any party hereto, the shares of capital stock of each of the Alamo
Sales Constituent Corporations shall be converted as follows:
(a) Capital Stock of AIS. Each issued and outstanding
share of capital stock of AIS shall be converted into one share of validly
issued, fully paid and non-assessable common stock of the Alamo Sales Surviving
Corporation.
(b) Cancellation of Certain Shares of Capital Stock of
Alamo Sales. All shares of capital stock of Alamo Sales that are owned
directly or indirectly by Alamo Sales shall be canceled and no stock of
Republic or other consideration shall be delivered in exchange therefor.
(c) Conversion of Capital Stock of Alamo Sales. Each
issued and outstanding share of common stock of Alamo Sales, $1.00 par value
per share ("Alamo Sales Common Stock") (other than shares to be canceled
pursuant to Section 2.13(b)), owned legally and beneficially by the
Shareholders immediately prior to the Effective Time and constituting all of
the issued and outstanding shares of Alamo Sales Common Stock shall
automatically be canceled and extinguished and converted at the Effective Time,
without any action on the part of the Shareholders, into that number of shares
of Republic Common Stock that is equal to the Alamo Sales Consideration (as
defined in Section 2.13(d) below) divided by 980. Promptly after the Closing,
Republic shall deliver to the Shareholders that number of shares of Republic
Common Stock that the Shareholders are entitled to receive based upon the
foregoing calculation. All such shares of Alamo Sales Common Stock, when so
converted, shall no longer be outstanding and shall automatically be canceled
and retired and shall cease to exist, and each holder of a certificate
representing any such shares shall
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cease to have any rights with respect thereto, except the right to receive the
shares of Republic Common Stock to be issued in consideration therefor upon the
surrender of such certificate in accordance with Section 2.24 hereof.
(d) Alamo Sales Consideration. The aggregate
consideration to be paid for the Alamo Sales Common Stock shall be that
percentage of the Aggregate Consideration determined by the Shareholders prior
to the Closing and set forth on Schedule 2, subject in all instances to the
prior consent of Republic (which consent shall not be withheld unreasonably)
(the "Alamo Sales Consideration").
Section 2.14 [Intentionally Deleted].
Section 2.15 Conversion of Fleet Securities. At the Effective
Time, by virtue of the Fleet Merger and without any action on the part of any
party hereto, the shares of capital stock of each of the Fleet Constituent
Corporations shall be converted as follows:
(a) Capital Stock of AFL. Each issued and outstanding
share of capital stock of AFL shall be converted into one share of validly
issued, fully paid and non-assessable common stock of the Fleet Surviving
Corporation.
(b) Cancellation of Certain Shares of Capital Stock of
Fleet. All shares of capital stock of Fleet that are owned directly or
indirectly by Fleet shall be canceled and no stock of Republic or other
consideration shall be delivered in exchange therefor.
(c) Conversion of Capital Stock of Fleet. Each issued
and outstanding share of common stock of Fleet, $1.00 par value per share
("Fleet Common Stock") (other than shares to be canceled pursuant to Section
2.15(b)), owned legally and beneficially by the Shareholders immediately prior
to the Effective Time and constituting all of the issued and outstanding shares
of Fleet Common Stock shall automatically be canceled and extinguished and
converted at the Effective Time, without any action on the part of the
Shareholders, into that number of shares of Republic Common Stock that is equal
to the Fleet Consideration (as defined in Section 2.15(d) below) divided by
980. Promptly after the Closing, Republic shall deliver to the Shareholders
that number of shares of Republic Common Stock that the Shareholders are
entitled to receive based upon the foregoing calculation. All such shares of
Fleet Common Stock, when so converted, shall no longer be outstanding and shall
automatically be canceled and retired and shall cease to exist, and each holder
of a certificate representing any such shares shall cease to have any rights
with respect thereto, except the right to receive the shares of Republic Common
Stock to be issued in consideration therefor upon the surrender of such
certificate in accordance with Section 2.24 hereof.
(d) Fleet Consideration. The aggregate consideration to
be paid for the Fleet Common Stock shall be that percentage of the Aggregate
Consideration determined by the Shareholders prior to the Closing and set forth
on Schedule 2, subject in all instances to the prior consent of Republic (which
consent shall not be withheld unreasonably) (the "Fleet Consideration").
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Section 2.16 Conversion of Alamo Leasing Securities. At the
Effective Time, by virtue of the Alamo Leasing Merger and without any action on
the part of any party hereto, the shares of capital stock of each of the Alamo
Leasing Constituent Corporations shall be converted as follows:
(a) Capital Stock of ALC. Each issued and outstanding
share of capital stock of ALC shall be converted into one share of validly
issued, fully paid and non-assessable common stock of the Alamo Leasing
Surviving Corporation.
(b) Cancellation of Certain Shares of Capital Stock of
Alamo Leasing. All shares of capital stock of Alamo Leasing that are owned
directly or indirectly by Alamo Leasing shall be canceled and no stock of
Republic or other consideration shall be delivered in exchange therefor.
(c) Conversion of Capital Stock of Alamo Leasing. Each
issued and outstanding share of common stock of Alamo Leasing, $1.00 par value
per share ("Alamo Leasing Common Stock") (other than shares to be canceled
pursuant to Section 2.16(b)), owned legally and beneficially by the
Shareholders immediately prior to the Effective Time and constituting all of
the issued and outstanding shares of Alamo Leasing Common Stock shall
automatically be canceled and extinguished and converted at the Effective Time,
without any action on the part of the Shareholders, into that number of shares
of Republic Common Stock that is equal to the Alamo Leasing Consideration (as
defined in Section 2.16(d) below) divided by 980. Promptly after the Closing,
Republic shall deliver to the Shareholders that number of shares of Republic
Common Stock that the Shareholders are entitled to receive based upon the
foregoing calculation. All such shares of Alamo Leasing Common Stock, when so
converted, shall no longer be outstanding and shall automatically be canceled
and retired and shall cease to exist, and each holder of a certificate
representing any such shares shall cease to have any rights with respect
thereto, except the right to receive the shares of Republic Common Stock to be
issued in consideration therefor upon the surrender of such certificate in
accordance with Section 2.24 hereof.
(d) Alamo Leasing Consideration. The aggregate
consideration to be paid for the Alamo Leasing Common Stock shall be that
percentage of the Aggregate Consideration determined by the Shareholders prior
to the Closing and set forth on Schedule 2, subject in all instances to the
prior consent of Republic (which consent shall not be withheld unreasonably)
(the "Alamo Leasing Consideration").
Section 2.17 Conversion of Alamo Automobile Securities. At the
Effective Time, by virtue of the Alamo Automobile Merger and without any action
on the part of any party hereto, the shares of capital stock of each of the
Alamo Automobile Constituent Corporations shall be converted as follows:
(a) Capital Stock of AASC. Each issued and outstanding
share of capital stock of AASC shall be converted into one share of validly
issued, fully paid and non-assessable common stock of the Alamo Automobile
Surviving Corporation.
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(b) Cancellation of Certain Shares of Capital Stock of
Alamo Automobile. All shares of capital stock of Alamo Automobile that are
owned directly or indirectly by Alamo Automobile shall be canceled and no stock
of Republic or other consideration shall be delivered in exchange therefor.
(c) Conversion of Capital Stock of Alamo Automobile.
Each issued and outstanding share of common stock of Alamo Automobile, $1.00
par value per share ("Alamo Automobile Common Stock") (other than shares to be
canceled pursuant to Section 2.17(b)), owned legally and beneficially by the
Shareholders immediately prior to the Effective Time and constituting all of
the issued and outstanding shares of Alamo Automobile Common Stock shall
automatically be canceled and extinguished and converted at the Effective Time,
without any action on the part of the Shareholders, into that number of shares
of Republic Common Stock that is equal to the Alamo Automobile Consideration
(as defined in Section 2.17(d) below) divided by 980. Promptly after the
Closing, Republic shall deliver to the Shareholders that number of shares of
Republic Common Stock that the Shareholders are entitled to receive based upon
the foregoing calculation. All such shares of Alamo Automobile Common Stock,
when so converted, shall no longer be outstanding and shall automatically be
canceled and retired and shall cease to exist, and each holder of a certificate
representing any such shares shall cease to have any rights with respect
thereto, except the right to receive the shares of Republic Common Stock to be
issued in consideration therefor upon the surrender of such certificate in
accordance with Section 2.24 hereof.
(d) Alamo Automobile Consideration. The aggregate
consideration to be paid for the Alamo Automobile Common Stock shall be that
percentage of the Aggregate Consideration determined by the Shareholders prior
to the Closing and set forth on Schedule 2, subject in all instances to the
prior consent of Republic (which consent shall not be withheld unreasonably)
(the "Alamo Automobile Consideration").
Section 2.18 Conversion of Alamo Shuttle Securities. At the
Effective Time, by virtue of the Alamo Shuttle Merger and without any action on
the part of any party hereto, the shares of capital stock of each of the Alamo
Shuttle Constituent Corporations shall be converted as follows:
(a) Capital Stock of ASC. Each issued and outstanding
share of capital stock of ASC shall be converted into one share of validly
issued, fully paid and non-assessable common stock of the Alamo Shuttle
Surviving Corporation.
(b) Cancellation of Certain Shares of Capital Stock of
Alamo Shuttle. All shares of capital stock of Alamo Shuttle that are owned
directly or indirectly by Alamo Shuttle shall be canceled and no stock of
Republic or other consideration shall be delivered in exchange therefor.
(c) Conversion of Capital Stock of Alamo Shuttle. Each
issued and outstanding share of common stock of Alamo Shuttle, $1.00 par value
per share ("Alamo Shuttle Common Stock") (other than shares to be canceled
pursuant to Section 2.18(b)), owned legally and beneficially by the
Shareholders immediately prior to the Effective Time and constituting all of
the issued and
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outstanding shares of Alamo Shuttle Common Stock shall automatically be
canceled and extinguished and converted at the Effective Time, without any
action on the part of the Shareholders, into that number of shares of Republic
Common Stock that is equal to the Alamo Shuttle Consideration (as defined in
Section 2.18(d) below) divided by 980. Promptly after the Closing, Republic
shall deliver to the Shareholders that number of shares of Republic Common
Stock that the Shareholders are entitled to receive based upon the foregoing
calculation. All such shares of Alamo Shuttle Common Stock, when so converted,
shall no longer be outstanding and shall automatically be canceled and retired
and shall cease to exist, and each holder of a certificate representing any
such shares shall cease to have any rights with respect thereto, except the
right to receive the shares of Republic Common Stock to be issued in
consideration therefor upon the surrender of such certificate in accordance
with Section 2.24 hereof.
(d) Alamo Shuttle Consideration. The aggregate
consideration to be paid for the Alamo Shuttle Common Stock shall be that
percentage of the Aggregate Consideration determined by the Shareholders prior
to the Closing and set forth on Schedule 2, subject in all instances to the
prior consent of Republic (which consent shall not be withheld unreasonably)
(the "Alamo Shuttle Consideration").
Section 2.19 Conversion of Tower Restaurants Securities. At the
Effective Time, by virtue of the Tower Restaurants Merger and without any
action on the part of any party hereto, the shares of capital stock of each of
the Tower Restaurants Constituent Corporations shall be converted as follows:
(a) Capital Stock of TRC. Each issued and outstanding
share of capital stock of TRC shall be converted into one share of validly
issued, fully paid and non-assessable common stock of the Tower Restaurants
Surviving Corporation.
(b) Cancellation of Certain Shares of Capital Stock of
Tower Restaurants. All shares of capital stock of Tower Restaurants that are
owned directly or indirectly by Tower Restaurants shall be canceled and no
stock of Republic or other consideration shall be delivered in exchange
therefor.
(c) Conversion of Capital Stock of Tower Restaurants.
Each issued and outstanding share of common stock of Tower Restaurants, $1.00
par value per share ("Tower Restaurants Common Stock") (other than shares to be
canceled pursuant to Section 2.19(b)), owned legally and beneficially by the
Shareholders immediately prior to the Effective Time and constituting all of
the issued and outstanding shares of Tower Restaurants Common Stock shall
automatically be canceled and extinguished and converted at the Effective Time,
without any action on the part of the Shareholders, into that number of shares
of Republic Common Stock that is equal to the Tower Restaurants Consideration
(as defined in Section 2.19(d) below) divided by 980. Promptly after the
Closing, Republic shall deliver to the Shareholders that number of shares of
Republic Common Stock that the Shareholders are entitled to receive based upon
the foregoing calculation. All such shares of Tower Restaurants Common Stock,
when so converted, shall no longer be outstanding and shall
-30-
automatically be canceled and retired and shall cease to exist, and each holder
of a certificate representing any such shares shall cease to have any rights
with respect thereto, except the right to receive the shares of Republic Common
Stock to be issued in consideration therefor upon the surrender of such
certificate in accordance with Section 2.24 hereof.
(d) Tower Restaurants Consideration. The aggregate
consideration to be paid for the Tower Restaurants Common Stock shall be that
percentage of the Aggregate Consideration determined by the Shareholders prior
to the Closing and set forth on Schedule 2, subject in all instances to the
prior consent of Republic (which consent shall not be withheld unreasonably)
(the "Tower Restaurants Consideration").
Section 2.20 Conversion of Tower Food Securities. At the
Effective Time, by virtue of the Tower Food Merger and without any action on
the part of any party hereto, the shares of capital stock of each of the Tower
Food Constituent Corporations shall be converted as follows:
(a) Capital Stock of TFB. Each issued and outstanding
share of capital stock of TFB shall be converted into one share of validly
issued, fully paid and non-assessable common stock of the Tower Food Surviving
Corporation.
(b) Cancellation of Certain Shares of Capital Stock of
Tower Food. All shares of capital stock of Tower Food that are owned directly
or indirectly by Tower Food shall be canceled and no stock of Republic or other
consideration shall be delivered in exchange therefor.
(c) Conversion of Capital Stock of Tower Food. Each
issued and outstanding share of common stock of Tower Food, $1.00 par value per
share ("Tower Food Common Stock") (other than shares to be canceled pursuant to
Section 2.20(b)), owned legally and beneficially by the Shareholders
immediately prior to the Effective Time and constituting all of the issued and
outstanding shares of Tower Food Common Stock shall automatically be canceled
and extinguished and converted at the Effective Time, without any action on the
part of the Shareholders, into that number of shares of Republic Common Stock
that is equal to the Tower Food Consideration (as defined in Section 2.20(d)
below) divided by 980. Promptly after the Closing, Republic shall deliver to
the Shareholders that number of shares of Republic Common Stock that the
Shareholders are entitled to receive based upon the foregoing calculation. All
such shares of Tower Food Common Stock, when so converted, shall no longer be
outstanding and shall automatically be canceled and retired and shall cease to
exist, and each holder of a certificate representing any such shares shall
cease to have any rights with respect thereto, except the right to receive the
shares of Republic Common Stock to be issued in consideration therefor upon the
surrender of such certificate in accordance with Section 2.24 hereof.
(d) Tower Food Consideration. The aggregate
consideration to be paid for the Tower Food Common Stock shall be that
percentage of the Aggregate Consideration determined by the Shareholders prior
to the Closing and set forth on Schedule 2, subject in all instances to the
prior
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consent of Republic (which consent shall not be withheld unreasonably) (the
"Tower Food Consideration").
Section 2.21 Conversion of Corporate Planners Securities. At the
Effective Time, by virtue of the Corporate Planners Merger and without any
action on the part of any party hereto, the shares of capital stock of each of
the Corporate Planners Constituent Corporations shall be converted as follows:
(a) Capital Stock of CPA. Each issued and outstanding
share of capital stock of CPA shall be converted into one share of validly
issued, fully paid and non-assessable common stock of the Corporate Planners
Surviving Corporation.
(b) Cancellation of Certain Shares of Capital Stock of
Corporate Planners. All shares of capital stock of Corporate Planners that are
owned directly or indirectly by Corporate Planners shall be canceled and no
stock of Republic or other consideration shall be delivered in exchange
therefor.
(c) Conversion of Capital Stock of Corporate Planners.
Each issued and outstanding share of common stock of Corporate Planners, $1.00
par value per share ("Corporate Planners Common Stock") (other than shares to
be canceled pursuant to Section 2.21(b)), owned legally and/or beneficially by
the Shareholders immediately prior to the Effective Time and constituting all
of the issued and outstanding shares of Corporate Planners Common Stock shall
automatically be canceled and extinguished and converted at the Effective Time,
without any action on the part of the Shareholders, into that number of shares
of Republic Common Stock that is equal to the Corporate Planners Consideration
(as defined in Section 2.21(d) below) divided by 98. Promptly after the
Closing, Republic shall deliver to the Shareholders that number of shares of
Republic Common Stock that the Shareholders are entitled to receive based upon
the foregoing calculation. All such shares of Corporate Planners Common Stock,
when so converted, shall no longer be outstanding and shall automatically be
canceled and retired and shall cease to exist, and each holder of a certificate
representing any such shares shall cease to have any rights with respect
thereto, except the right to receive the shares of Republic Common Stock to be
issued in consideration therefor upon the surrender of such certificate in
accordance with Section 2.24 hereof.
(d) Corporate Planners Consideration. The aggregate
consideration to be paid for the Corporate Planners Common Stock shall be that
percentage of the Aggregate Consideration determined by the Shareholders prior
to the Closing and set forth on Schedule 2, subject in all instances to the
prior consent of Republic (which consent shall not be withheld unreasonably)
(the "Corporate Planners Consideration").
Section 2.22 Risk Management; Conveyed Partnerships.
(a) At the Effective Time, the Shareholders shall
transfer to Republic all of the issued and outstanding shares of capital stock
of Risk Management (the "Risk Management Common
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Stock") in exchange for that percentage of the Aggregate Consideration
determined by the Shareholders prior to the Closing and set forth on Schedule
2, subject in all instances to the prior consent of Republic (which consent
shall not be withheld unreasonably) (the "Risk Management Consideration"). The
Risk Management Consideration shall be allocated among the Shareholders in
accordance with their percentage ownership interests as set forth on Schedule
4.2.
(b) At the Effective Time, the Shareholders shall
transfer to entities controlled directly or indirectly by Republic, all of the
Partnership Interests (the "Partnership Interest Transfer") in exchange for
that percentage of the Aggregate Consideration determined by the Shareholders
prior to the Closing and set forth on Schedule 2, subject in all instances to
the prior consent of Republic (which consent shall not be withheld
unreasonably) (the "Partnership Consideration"). The Partnership Consideration
shall be allocated among the Shareholders in accordance with their percentage
ownership interests as set forth on Schedule 4.2.
Section 2.23 Aggregate Consideration. The sum of the Alamo
Consideration, the Alamo Canada Consideration, the Alamo Belgium Consideration,
the Territory Blue Consideration, the Tower Consideration, the Green Corn
Consideration, the Guy Salmon Consideration, the Alasys Consideration, the
Tripperoo Consideration, the Rising Moon Consideration, the Alamo (Puerto Rico)
Consideration, the Alamo Sales Consideration, the Fleet Consideration, the
Alamo Leasing Consideration, the Alamo Automobile Consideration, the Alamo
Shuttle Consideration, the Tower Restaurants Consideration, the Tower Food
Consideration, the Corporate Planners Consideration, the Risk Management
Consideration and the Partnership Consideration (the "Aggregate Consideration")
shall be 22,123,893 shares of Republic Common Stock.
Section 2.24 Exchange of Certificates and Other Consideration.
(a) Republic to Provide Common Stock. Promptly after the
Effective Time, Republic shall cause to be made available to the Shareholders
the shares of Republic Common Stock issuable pursuant to this Article II. At
the Closing, Republic shall deliver a copy of the countersigned, irrevocable
instructions which were delivered to its transfer agent regarding the issuance
of such Republic Common Stock.
(b) Certificate Delivery Requirements. At the Effective
Time, the Shareholders shall deliver to Republic the certificates
("Certificates") representing the Alamo Common Stock, the Alamo Canada Common
Stock, the Alamo Belgium Common Stock, the Territory Blue Common Stock, the
Tower Common Stock, the Green Corn Common Stock, the Guy Salmon Common Stock,
the Alasys Common Stock, the Tripperoo Common Stock, the Rising Moon Common
Stock, the Alamo (Puerto Rico) Common Stock, the Alamo Sales Common Stock, the
Risk Management Common Stock, the Fleet Common Stock, the Alamo Leasing Common
Stock, the Alamo Automobile Common Stock, the Alamo Shuttle Common Stock, the
Tower Restaurants Common Stock, the Tower Food Common Stock and the Corporate
Planners Common Stock (collectively, the "Company Common Stock"), duly endorsed
in blank by the Shareholders, or accompanied by blank stock powers, and with
all necessary transfer tax and other revenue stamps, acquired at the Republic
Subsidiaries' expense, affixed and canceled. The Certificates so delivered
shall forthwith be canceled. Until delivered as contemplated by this Section
2.24(b), each Certificate shall be deemed at any time after the Effective Time
to represent the right to receive upon such surrender the number of shares
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of Republic Common Stock as provided by this Article II and the provisions of
the Florida Statute and, in the case of Fleet and Alamo (Puerto Rico), the
applicable laws of the State of New York and the State of Delaware,
respectively.
(c) No Further Ownership Rights in Capital Stock of the
Companies. All Republic Common Stock delivered upon the surrender of the
Company Common Stock in accordance with the terms hereof shall be deemed to
have been delivered in full satisfaction of all rights pertaining to the
Company Common Stock, and the Certificates shall have no further rights to, or
ownership in, shares of capital stock of Alamo, Alamo Canada, Alamo Belgium,
Territory Blue, Tower, Green Corn, Guy Salmon, Alasys, Tripperoo, Rising Moon,
Alamo (Puerto Rico), Alamo Sales, Risk Management, Fleet, Alamo Leasing, Alamo
Automobile, Alamo Shuttle, Tower Restaurants, Tower Food and Corporate
Planners. If, after the Effective Time, Certificates are presented to the
Surviving Corporations for any reason, they shall be canceled and exchanged as
provided in this Article II.
(d) Lost, Stolen or Destroyed Certificates. In the event
any Certificates shall have been lost, stolen or destroyed, Republic shall
issue shares of Republic Common Stock in exchange for such lost, stolen or
destroyed Certificates, upon the making of an affidavit of that fact by the
holder thereof and the execution of a lost stock indemnity in favor of
Republic.
(e) Fractional Shares. No fractional shares of Republic
Common Stock shall be issued, but in lieu thereof each Shareholder who would
otherwise be entitled to receive a fraction of a share of Republic Common Stock
shall receive from Republic an amount of cash equal in value to such fractional
share.
ARTICLE III
CLOSING
The consummation of the Mergers and the Partnership Interest Transfer
(collectively, the "Transactions") and the other matters contemplated by this
Agreement (the "Closing") shall take place at the offices of Greenberg,
Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A., 515 East Las Olas Boulevard,
Fort Lauderdale, Florida 33301, on November 25, 1996 (or, if later, within
three (3) days of the date that all conditions to Closing set forth in Article
VII hereof have been satisfied or waived), or at such other time and date as
the parties hereto may mutually agree, which date shall be referred to as the
"Closing Date." On the Closing Date, the Articles of Merger, together with any
required officers' certificates, shall be filed with the Secretary of the State
of Florida, the Secretary of the State of New York and the Secretary of the
State of Delaware, as appropriate, in accordance with the provisions of the
Florida Statute and the applicable laws of the State of New York and the State
of Delaware. The Mergers shall become effective upon such filing or at such
later time on the Closing Date as may be specified in the filing with the
Secretary of the State of Florida, the Secretary of the State of New York and
the Secretary of the State of Delaware, as appropriate (the "Effective Time").
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF THE CONVEYED ENTITIES AND THE SHAREHOLDERS
Subject in all instances to, and except as otherwise provided in, the
Schedules attached hereto, (i) except for Section 4.3 (as to which each
Shareholder hereby severally, but not jointly, represents and warrants to
Republic and the Republic Subsidiaries, as to himself or itself only), each
Shareholder and each Conveyed Entity (other than Fleet) hereby jointly and
severally represents and warrants to Republic and the Republic Subsidiaries,
and (ii) Fleet hereby severally, but not jointly, represents and warrants to
Republic and the Republic Subsidiaries, as to itself only, as follows:
Section 4.1 Authority; Binding Effect. The Conveyed Entities and
the Shareholders have the requisite power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated hereby. The
execution, delivery and performance of this Agreement by the Conveyed Entities
and the Shareholders and the consummation by the Conveyed Entities and the
Shareholders of the transactions contemplated hereby have been duly authorized
by all necessary action on the part of the Conveyed Entities and the
Shareholders and, except as otherwise provided in this Agreement, no other
action on the part of the Conveyed Entities and the Shareholders is necessary
to authorize this Agreement or to consummate the transactions contemplated
hereby. This Agreement has been duly executed and delivered by the Conveyed
Entities and the Shareholders and constitutes a valid and binding obligation of
the Conveyed Entities and the Shareholders enforceable against the Conveyed
Entities and the Shareholders in accordance with its terms, when executed and
delivered by the other parties thereto.
Section 4.2 Organization. Schedule 4.2 sets forth the name, form
or organization, jurisdiction of organization, capitalization and ownership of
each Conveyed Entity. Except as set forth on Schedule 4.2, as of the date
hereof, each Conveyed Entity and each of its Subsidiaries (a) is a duly
organized and validly existing corporation or partnership, as the case may be,
in good standing under the laws of its jurisdiction of organization, (b) has
full power and authority to own all of its properties and assets and to carry
on its business as it is now being conducted, and (c) is duly qualified and in
good standing to do business in each jurisdiction in which the nature of its
business or the ownership or leasing of its properties makes such qualification
necessary, except where the failure to satisfy clauses (a), (b) and/or (c)
would not have a Material Adverse Effect. The Conveyed Entities have delivered
to the Republic Subsidiaries a complete and correct copy of the articles of
incorporation and Bylaws or comparable organizational documents, each as
amended to date, of each Conveyed Entity and each of its Subsidiaries. Such
organizational documents are in full force and effect, as of the date hereof,
and none of the Conveyed Entities nor any of their Subsidiaries is, or will be,
in violation, in any material respect, of any provision of such organizational
documents as a result of the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby.
Section 4.3 Ownership of Company Common Stock and Partnership
Interests. The Shareholders own beneficially and of record, and upon the
Closing will have validly conveyed to the Republic Subsidiaries, marketable
title to the Company Common Stock and the Partnership Interests free and clear
of all Liens (except for Liens created by the Republic Subsidiaries),
preemptive rights
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(except as otherwise provided in the articles of incorporation and the other
organizational documents) and similar rights. Except as set forth on Schedule
4.3, as of the date hereof, the Shares constitute all of the issued and
outstanding shares of capital stock of the Conveyed Corporations and the
Partnership Interests constitute all of the interests in the Conveyed
Partnerships. Except as set forth on Schedule 4.3, as of the date hereof,
there are no outstanding or authorized options, rights, warrants, calls,
convertible securities, rights to subscribe, conversion rights or other
agreements or commitments providing for the issuance or transfer of shares of
capital stock of any Conveyed Corporation or partnership interests of any
Conveyed Partnership and there are no voting trusts or any other agreements
with respect to the Company Common Stock or the Partnership Interests.
Section 4.4 Non-Contravention. Except as set forth on Schedule
4.4, as of the date hereof, the execution and delivery of this Agreement by the
Conveyed Entities and the Shareholders do not, and the consummation by the
Conveyed Entities and the Shareholders of the transactions contemplated hereby
and the performance by the Conveyed Entities and the Shareholders of their
respective obligations hereunder will not, (a) subject to obtaining the
approvals required by the agreements set forth on Schedule 4.4, result in a
violation of any Requirement of Law applicable to the Shareholders or any
Conveyed Entity or any Subsidiary thereof or (b) (i) result in the creation of
any Lien on the Company Common Stock, the Partnership Interests or the
properties or assets of any Conveyed Entity or any of its Subsidiaries or (ii)
violate, or result in the violation of, or default (with or without notice or
lapse of time, or both) under, any provision of, or result in the termination
or acceleration of, or give rise to a right of termination or acceleration of
or the loss of a material benefit under, any loan agreement, note, contract,
lease, Plan, obligation, instrument, Lien or Permit applicable to the
Shareholders, the Conveyed Entities or any of their Subsidiaries or their
respective properties or assets, which in each case specified in clauses (a) or
(b) above would have a Material Adverse Effect.
Section 4.5 Consents and Approvals. Except as set forth on
Schedule 4.5 and except for filings under the HSR Act and other Competition
Laws, to the Knowledge of the Shareholders and the Conveyed Entities, no
consent, authorization, order or approval of, or filing or registration with,
any Governmental Authority is required, as of the date hereof, for or in
connection with the execution and delivery of this Agreement by the Conveyed
Entities and the Shareholders and the consummation by the Conveyed Entities and
the Shareholders of the transactions contemplated hereby and the performance by
the Conveyed Entities and the Shareholders of their respective obligations
hereunder, except for consents, authorizations, orders and/or approvals, the
failure to obtain which would not, individually or in the aggregate, have a
Material Adverse Effect.
Section 4.6 Subsidiaries. Schedule 4.6 sets forth the name, form
of organization, jurisdiction of organization, capitalization and ownership of
each Subsidiary of each Conveyed Entity. To the Knowledge of the Shareholders
and the Conveyed Entities, all of the outstanding shares of capital stock,
partnership interests and other ownership interests of each such Subsidiary are
validly issued, fully paid and nonassessable, and have not been issued in
violation of any preemptive or similar rights. Except as set forth on Schedule
4.6, as of the date hereof, all outstanding shares of capital stock,
partnership interests and other ownership interests of each such Subsidiary are
owned
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beneficially and of record by a Conveyed Entity or one of its other
wholly-owned Subsidiaries free and clear of any material Liens, preemptive
rights (except as otherwise provided in the articles of incorporation or other
organizational documents) and similar rights. Except as set forth on Schedule
4.6, as of the date hereof, there are no outstanding options, warrants, calls,
rights or commitments, or any other agreements of any character relating to the
sale, issuance or voting of, or the granting of rights to acquire, any shares
of capital stock of or other debt or equity interest in such Subsidiary or any
securities or other instruments convertible into, exchangeable for or
evidencing the right to purchase any shares of capital stock of or other debt
or equity interest in any such Subsidiary.
Section 4.7 SEC Documents. The Conveyed Entities have filed or
caused to be filed with the SEC all documents required to be filed with the SEC
by the Conveyed Entities and have provided to Republic and the Republic
Subsidiaries (a) a true and correct copy of Alamo's Annual Report on Form 10-K
for the fiscal year ended December 31, 1995 and true and correct copies of its
Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 1996 and
June 30, 1996 and (b) true and correct copies of all other reports, forms and
registration statements filed by any of the Conveyed Entities with the SEC
(other than preliminary registration statements in forms not declared
effective). As of their respective dates, all documents so filed with the SEC
complied in all material respects with the requirements of the Securities Act
or Exchange Act, as the case may be, and the applicable rules of the SEC
thereunder, and none of such documents contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. The combined financial statements
of the Conveyed Entities included in such documents complied as to form, as of
their respective dates, in all material respects with applicable accounting
requirements and with the rules and regulations of the SEC with respect
thereto, have been prepared in accordance with GAAP applied on a consistent
basis during the periods involved (except as may be indicated in the notes
thereto or, in the case of the unaudited statements, as permitted by Form 10-Q
of the SEC) and fairly present, in all material respects, the combined
financial position of the Conveyed Entities and their consolidated subsidiaries
as at the dates thereof and the combined results of their operations and cash
flows for the periods then ended in accordance with GAAP. Reserves are
reflected on the combined balance sheet of the Conveyed Entities as of June 30,
1996, (the "Balance Sheet") in amounts that have been established on a basis
consistent with past practice and in accordance with GAAP.
Section 4.8 Absence of Certain Changes or Events. Except as
expressly contemplated or permitted by this Agreement and except as set forth
on Schedule 4.8, as of the date hereof, since June 30, 1996, (a) each Conveyed
Entity and each of its Subsidiaries has conducted its business only in the
ordinary course and consistent with past practice and (b) there has not been
any development or event which has had or would reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
Section 4.9 [Intentionally Deleted].
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Section 4.10 Property; Assets.
(a) Schedule 4.10 contains a list of all material real
property owned or leased by the Conveyed Entities and their Subsidiaries as of
the date hereof (the "Real Property"). Each of the Conveyed Entities and its
Subsidiaries has good and marketable title to all Real Property listed as
owned, and has valid leasehold interests in all Real Property listed as leased.
The use of the Real Property by the Conveyed Entities and their Subsidiaries,
as of the date hereof, does not violate the certificate of occupancy thereof or
any local zoning or similar land use or other Laws that, in any such case,
would have a Material Adverse Effect.
(b) Except as set forth on Schedule 4.10, as of the date
hereof, the Conveyed Entities and their Subsidiaries have marketable title to
all material assets reflected on the Balance Sheet or all material assets
acquired since the date of the Balance Sheet, other than (i) assets disposed of
since the date of the Balance Sheet in the ordinary course of business
consistent with past practice and (ii) assets leased by the Conveyed Entities
and their Subsidiaries. Neither the Conveyed Entities nor the Shareholders has
made, or shall make, any representation or warranty with respect to the
condition of any assets reflected on the Balance Sheet or acquired since the
date of the Balance Sheet, it being understood and agreed that the Republic
Subsidiaries shall take possession of all such assets in the condition that
such assets exist on the Closing Date.
Section 4.11 Litigation and Claims; Compliance with Laws. b.
Except as set forth on Schedule 4.11, as of the date hereof, there is no
material Litigation pending or, to the Knowledge of the Shareholders and the
Conveyed Entities, threatened by or against any Conveyed Entity or any of its
Subsidiaries or with respect to any of their respective properties or assets,
which is not fully covered by the insurance policies referenced in Section 4.12
(excluding any applicable deductibles) or which if adversely determined would
have a Material Adverse Effect. As of the date hereof, no Litigation before
any arbitrator or Governmental Authority has been commenced, is pending or, to
the Knowledge of the Shareholders and the Conveyed Entities, threatened by or
against the Conveyed Entities or any of their Subsidiaries or against any of
their respective properties or assets (including any items subject to the
exception above) which if adversely determined would have a Material Adverse
Effect. Except as set forth on Schedule 4.11, as of the date hereof, none of
the Conveyed Entities or their Subsidiaries is subject to any material order,
consent decree, settlement or similar agreement with any Governmental Authority
which would have a Material Adverse Effect and since June 30, 1996 through the
date hereof there has been no judgment, injunction, decree, order or other
determination of an arbitrator or Governmental Authority applicable to any
Conveyed Entity or any of its Subsidiaries which would have a Material Adverse
Effect.
(b) Each Conveyed Entity and its Subsidiaries is in
compliance in all material respects with all Requirements of Law, including the
FTC Act and all applicable state and foreign franchise Laws, holds all Permits
that are material to the conduct of its business or the ownership of its
properties, and is in compliance, in all material respects, with each such
Permit, except where the failure to so comply with Requirements of Law or hold
such Permits has not had and would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect. From
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June 30, 1996 through the date hereof, no Conveyed Entity or any Subsidiary
thereof has received any written communication from any Governmental Authority
asserting that a Conveyed Entity or any of its Subsidiaries is not in material
compliance with any Requirement of Law or any material Permit which
non-compliance has had or would reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect.
(c) To the Knowledge of the Shareholders and the Conveyed
Entities, from December 31, 1995 through the date hereof, each (i) sale or
grant by a Conveyed Entity or any of its Subsidiaries of each franchise or
subfranchise of the Car Rental Business to any Franchisee, and (ii) acquisition
by a Conveyed Entity or any of its Subsidiaries of any franchise or
subfranchise of the Car Rental Business from a Franchisee or Subfranchisor, was
made in compliance in all material respects with all Requirements of Law,
including the FTC Act, if applicable, and all applicable state and foreign
franchise Laws.
Section 4.12 Insurance. Schedule 4.12 sets forth a complete and
accurate list as of the date hereof of all primary, excess and umbrella
policies, bonds and other forms of insurance currently owned or held by or on
behalf of and/or providing insurance coverage to any Conveyed Entity or
Subsidiary thereof and their respective businesses, properties and assets (or
its directors, officers, salespersons, agents or employees). To the Knowledge
of the Shareholders and the Conveyed Entities, all such policies are, in all
material respects, in full force and effect as of the date hereof. As of the
date hereof, none of the Conveyed Entities nor any of their Subsidiaries has
received written notice of any material default under any such policy, nor have
any of them received written notice of any pending or threatened termination or
cancellation, coverage limitation or reduction, or material premium increase
with respect to any such policy the failure of which to maintain has had or
would reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.
Section 4.13 Environmental Matters.
(a) With respect to the Real Property and except as set
forth on Schedule 4.13(a), as of the date hereof, and to the Knowledge of the
Shareholders and the Conveyed Entities, the Conveyed Entities and their
Subsidiaries are in compliance with all applicable Environmental Laws (which
compliance includes the possession by the Conveyed Entities and their
Subsidiaries of all Environmental Permits, and material compliance with the
terms and conditions thereof), except where failure to be in compliance would
not have a Material Adverse Effect.
(b) Except as set forth on Schedule 4.13(b), as of the
date hereof, subject to any reimbursement programs of any Governmental
Authority, there is no Environmental Claim pending or, to the Knowledge of the
Shareholders and the Conveyed Entities, threatened against any Conveyed Entity
or any Subsidiary thereof, which Environmental Claim would have a Material
Adverse Effect.
(c) Except as set forth on Schedule 4.13(c), as of the
date hereof, and to the Knowledge of the Shareholders and the Conveyed
Entities, there are no past or present actions,
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activities, circumstances, conditions, events or incidents, including the
Release or presence of any Hazardous Material, which would reasonably be
expected to form the basis of any Environmental Claim against a Conveyed Entity
or any Subsidiary thereof, which Environmental Claim would have a Material
Adverse Effect.
(d) Except as set forth on Schedule 4.13(d), as of the
date hereof, and to the Knowledge of the Shareholders and the Conveyed
Entities, the Conveyed Entities and their Subsidiaries have not, and, to the
Knowledge of the Shareholders and the Conveyed Entities, no other person has,
placed, stored, deposited, discharged, buried, dumped or disposed of Hazardous
Materials on, beneath or adjacent to any Real Property currently or formerly
owned, operated or leased by a Conveyed Entity or any of its Subsidiaries
except in material compliance with applicable Environmental Laws or which would
not have a Material Adverse Effect.
(e) To the Knowledge of the Shareholders and the Conveyed
Entities, the Conveyed Entities have delivered to Republic and the Republic
Subsidiaries or otherwise made available for inspection complete copies and
results of any reports, studies, analyses, tests or monitoring possessed, as of
the date hereof, by the Conveyed Entities and their Subsidiaries pertaining to
Hazardous Materials in, on or beneath any Real Property, or regarding a
Conveyed Entity's or any of its Subsidiaries' compliance with applicable
Environmental Laws.
(f) To the Knowledge of the Shareholders and the Conveyed
Entities, except as set forth on Schedule 4.13(f), as of the date hereof, the
Real Property does not contain any: underground storage tanks; friable
asbestos; polychlorinated biphenyls; underground injection wells; radioactive
materials; or septic tanks or waste disposal pits in which process wastewater
or any Hazardous Materials have been discharged or disposed, the existence of
which has had or would reasonably be expected to have a Material Adverse
Effect.
(g) Republic and the Republic Subsidiaries acknowledge
that (i) the representations and warranties contained in this Section 4.13 are
the only representations and warranties being made in this Agreement with
respect to Environmental Matters, (ii) no other representation or warranty
contained in this Agreement shall apply to any Environmental Matters and (iii)
no other representation or warranty, express or implied, is being made with
respect thereto.
Section 4.14 Material Contracts.
(a) Schedule 4.14 lists (without duplication) each of the
following contracts and other agreements to which a Conveyed Entity or any
Subsidiary thereof is a party or by or to which a Conveyed Entity or any
Subsidiary thereof or any of their respective assets or properties is bound or
subject as of the date hereof, except for (i) contracts and other agreements
the only parties to which are the Conveyed Entities and their Subsidiaries and
(ii) contracts and other agreements which are terminable on sixty (60) days
prior notice without material penalty (such contracts and agreements being
"Material Contracts"):
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(i) agreements between a Conveyed Entity or
Subsidiaries thereof and a Franchisee, or other agreements relating to the
franchise business operations providing for payments to or by the Conveyed
Entities and their Subsidiaries reasonably expected to exceed $1,500,000 per
agreement per calendar year;
(ii) advertising, market research and other
marketing agreements providing for payments by any Conveyed Entity or its
Subsidiaries of more than $1,500,000 per agreement per calendar year;
(iii) employment, severance, consulting or other
agreements with any current stockholder, director, officer or employee which
provide for the continuing obligation on the part of the Conveyed Entities
and/or their Subsidiaries to pay compensation in excess of $100,000 per
calendar year.
(iv) agreements outside the ordinary course of
business relating to (x) the sale or lease (as lessor) by a Conveyed Entity or
any Subsidiary thereof of any assets or properties in excess of $1,500,000 per
agreement per calendar year, (y) the acquisition or lease (as lessee) by the
Conveyed Entity or any Subsidiary thereof of any assets or properties in excess
of $1,500,000 per agreement per calendar year or (z) any airport concession;
(v) agreements restricting the ability of the
Conveyed Entities or the Subsidiaries thereof to incur Indebtedness;
(vi) agreements relating to any guarantee of
Indebtedness by the Conveyed Entities or the Subsidiaries thereof (other than
indemnities made in the ordinary course of business which are not material to
the Conveyed Entities and their Subsidiaries taken as a whole);
(vii) agreements relating to the making of any loan
or advance by a Conveyed Entity or any Subsidiary thereof, other than (x)
intercompany loans among the Conveyed Entities or Subsidiaries thereof and (y)
those made in the ordinary course of business consistent with past practice;
(viii) agreements relating to Indebtedness,
factoring arrangements, sale and leaseback transactions and other similar
financing transactions providing for payments of more than $1,500,000 per
agreement;
(ix) agreements providing for the indemnification
by a Conveyed Entity or Subsidiaries thereof of any person, except those
entered into in the ordinary course of business and those which are not
material to the Conveyed Entities and their Subsidiaries taken as a whole;
(x) agreements with any Governmental Authority
except those entered into in the ordinary course of business and those which
are not material to the Conveyed Entities and their Subsidiaries taken as a
whole;
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(xi) material joint venture, partnership or
similar documents or agreements;
(xii) agreements that limit or purport to limit the
ability of a Conveyed Entity or Subsidiary thereof to compete with any Person
in the Car Rental Business; and
(xiii) other agreements, contracts or commitments
not made in the ordinary course of business which are material to the Conveyed
Entities and their Subsidiaries taken as a whole.
(b) To the Knowledge of the Shareholders and the Conveyed
Entities, except as set forth on Schedule 4.14, as of the date hereof, each
Material Contract is legal, valid and binding on and enforceable against the
respective Conveyed Entities or Subsidiaries thereof that are parties thereto.
Except as set forth on Schedule 4.14, the consummation of the transactions
contemplated by this Agreement, will not result in a material breach of any
Material Contract. No Conveyed Entity or Subsidiary thereof is (or with the
giving of notice or lapse of time would be) in material breach of, or material
default under, any Material Contract. Neither the Shareholders nor any of the
Conveyed Entities or their Subsidiaries has received any written notice from
June 30, 1996 through the date hereof that any Material Contract is not
enforceable against any party thereto, that any Material Contract has been
terminated before the expiration of its term or that any party to a Material
Contract intends to terminate such Material Contract prior to the termination
date specified therein, or that any other party is in material breach of, or
material default under, any Material Contract. There have been delivered or
made available to Republic and the Republic Subsidiaries true and complete
copies of all Material Contracts.
Section 4.15 Intellectual Property. To the Knowledge of the
Shareholders and the Conveyed Entities:
(a) As of the date hereof, a Conveyed Entity or one of
its Subsidiaries owns or has the right to use or license the Intellectual
Property, free and clear of all Liens (except as permitted by Section 6.2
hereof). Schedule 4.15(a) sets forth a complete and accurate list of all
material U.S. and foreign patents and patent applications, trademark or service
mark registrations and applications, U.S. copyright registrations and
applications, and material unregistered copyrights, service marks, trademarks
and trade names, each as owned or used by a Conveyed Entity or one of its
Subsidiaries as of the date hereof (indicating which of the Conveyed Entities
or its Subsidiaries is the owner of record of such rights). Either a Conveyed
Entity or one of its Subsidiaries is listed, as of the date hereof, in the
records of the appropriate United States, state or foreign agency as the sole
owner of record for each application and registration listed on Schedule
4.15(a).
(b) As of the date hereof, the registrations listed on
Schedule 4.15(b) are in full force and effect, in all material respects, and
have not been canceled. As of the date hereof, there is no pending, existing
or threatened, opposition, interference, cancellation proceeding or other legal
or governmental proceeding before any court or registration authority in any
jurisdiction against the
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registrations listed on Schedule 4.15(b). The Conveyed Entities and/or their
Subsidiaries own or have the right to use all other material Intellectual
Property.
(c) Schedule 4.15(c) sets forth a complete and accurate
list of all agreements, as of the date hereof, pertaining to the use of or
granting any right to use or practice any rights under any Intellectual
Property, whether a Conveyed Entity or any of its Subsidiaries is the licensee
or licensor thereunder (collectively, the "Licenses") and any written
settlements or assignments relating to any Intellectual Property. As of the
date hereof, the Licenses are valid and binding obligations of the Conveyed
Entities or any of their Subsidiaries, enforceable in accordance with their
terms, and there are no breaches or defaults thereunder.
(d) Schedule 4.15(d) sets forth a list of all material
Computer Programs which are owned, licensed, leased or otherwise used by the
Conveyed Entities or any of their Subsidiaries, as of the date hereof, in
connection with the operation of their businesses as conducted as of the date
hereof and identifies which is owned, licensed, leased, or otherwise used, as
the case may be. As of the date hereof, each Computer Program listed on
Schedule 4.15(d) is either (i) owned by the Conveyed Entities or any of their
Subsidiaries, (ii) in the public domain or otherwise available to the Conveyed
Entities or any of their Subsidiaries without the license, lease or consent of
any third party, or (iii) used under rights granted to the Conveyed Entities or
any of their Subsidiaries under a written agreement, license or lease from a
third party. As of the date hereof, the Conveyed Entities and their
Subsidiaries use the Computer Programs set forth on Schedule 4.15(d) in
connection with the operation of their businesses as conducted as of the date
hereof and do not violate the Intellectual Property rights of any third party.
(e) As of the date hereof, no trade secret or
confidential know-how material to the business of the Conveyed Entities or any
of their Subsidiaries as currently operated has been disclosed or authorized to
be disclosed to any third party, other than pursuant to a non-disclosure
agreement intended to protect the Conveyed Entities' and their Subsidiaries'
proprietary interests in and to such trade secrets.
(f) Except as set forth on Schedule 4.15(f), as of the
date hereof, (1) the conduct of the businesses of the Conveyed Entities and
their Subsidiaries, as operated as of the date hereof, does not infringe upon
any intellectual property right owned or controlled by any third party and (ii)
there are no claims or suits pending or threatened, and none of the Conveyed
Entities nor any of their Subsidiaries has received any written notice of a
third party claim or suit (x) alleging that any Conveyed Entity's or any of its
Subsidiaries' activities or the conduct of their businesses infringes upon or
constitutes the unauthorized use of the proprietary rights of any third party,
or (y) challenging the ownership, use, validity or enforceability of the
Intellectual Property.
(g) Except as set forth on Schedule 4.15(g), as of the
date hereof, no third party is infringing upon any Intellectual Property owned
by a Conveyed Entity or any of its Subsidiaries and no such claims against a
third party by a Conveyed Entity or any of its Subsidiaries are pending which,
if adversely determined, would have a Material Adverse Effect.
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(h) As of the date hereof, there are no settlements,
consents, judgments, or orders or other agreements which materially restrict or
impair a Conveyed Entity's or any of its Subsidiaries' rights to use the
registered trademarks, inventions or Computer Software owned or used by the
Conveyed Entities and their Subsidiaries in the conduct of their businesses.
Section 4.16 Taxes. Except as set forth on Schedule 4.16, as of
the date hereof and to the Knowledge of the Shareholders and the Conveyed
Entities:
(a) Each of the Conveyed Corporations is a small business
corporation within the meaning of Section 1361 of the Code and has had in
effect since the date set forth opposite its name on Schedule 4.16 a valid
election to be treated as an "S" corporation for federal income tax purposes,
and none of the Conveyed Corporations or the Shareholders has taken or caused
or permitted to be taken any action that caused a termination of such S
election for any period subsequent to such date.
(b) Each of the Conveyed Partnerships and each of the
partnerships owned directly or indirectly by the Conveyed Partnerships has
qualified since its formation as a partnership for federal income tax purposes
under the Code.
(c) Each of the Conveyed Entities and their Subsidiaries
has (i) duly and timely filed with the appropriate taxing authorities all
material Tax Returns required to be filed by it, and all such Tax Returns are
true, correct and complete in all material respects, and (ii) timely paid all
Taxes shown as due on any such Tax Returns or for which a written notice of
assessment or demand for payment has been received from any taxing authority;
(d) Each of the Conveyed Entities and the Subsidiaries
has complied in all material respects with all applicable Laws relating to the
payment and withholding of Taxes (including withholding of Taxes pursuant to
Sections 1441 and 1442 of the Code or similar provisions under any foreign
Laws) and has, within the time and within the manner prescribed by Law,
withheld from employee wages and paid over to the proper Governmental
Authorities all amounts required to be withheld and paid over under all
applicable Laws;
(e) There are no material Liens for Taxes upon the assets
or properties of the Conveyed Entities and their Subsidiaries except for
statutory liens for Taxes not yet due;
(f) There are no outstanding waivers or comparable
consents regarding the application of the statute of limitations with respect
to any Taxes or Tax Returns of the Conveyed Entities and their Subsidiaries
that have been given by any of the Conveyed Entities;
(g) None of the Conveyed Entities or their Subsidiaries
has requested an extension of time within which to file any Tax Return in
respect of any fiscal year which has not since been filed;
(h) No federal, state, local or foreign audits or other
administrative proceedings have formally commenced or are presently pending
with regard to any Taxes or Tax Returns of the
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Conveyed Entities or their Subsidiaries for which any Conveyed Entity or
Subsidiary thereof would be liable, and no written notification has been
received by any of the Conveyed Entities or their Subsidiaries that such an
audit or other proceeding is pending or threatened with respect to any Taxes
due from any of the Conveyed Entities or their Subsidiaries or any Tax Return
filed by any of the Conveyed Entities or their Subsidiaries;
(i) None of the Conveyed Entities or their Subsidiaries
is required to include in income any adjustment pursuant to Section 481(a) of
the Code by reason of a voluntary change in accounting method (nor has any
taxing authority proposed in writing any such adjustment or change of
accounting method);
(j) None of the Conveyed Entities or their Subsidiaries
is a party to, is bound by or has any obligation under any Tax sharing
agreement, Tax indemnification agreement or similar contract or arrangement.
(k) No power of attorney has been granted by or with
respect to any of the Conveyed Entities or their Subsidiaries with respect to
any matter relating to Taxes, which power of attorney is currently in force;
(l) None of the Conveyed Corporations or corporate
Subsidiaries thereof is a party to any agreement, plan, contract or arrangement
that could result, separately or in the aggregate, in the payment of any
"excess parachute payments" within the meaning of Section 280G of the Code;
(m) No closing agreement pursuant to Section 7121 of the
Code (or any predecessor provision) or any similar provision of any state,
local or foreign Law has been entered into by or with respect to any of the
Conveyed Entities or their Subsidiaries;
(n) The Conveyed Entities and their Subsidiaries have
previously delivered or made available to Republic and the Republic
Subsidiaries complete and accurate copies of each of the following items for
the years ended December 31, 1993, December 31, 1994 and December 31, 1995: (i)
all audit reports, letter rulings and technical advice memoranda relating to
federal, state, local and foreign Taxes due from any of the Conveyed Entities
or their Subsidiaries, (ii) federal, state, local and foreign Tax Returns filed
by the Conveyed Entities or their Subsidiaries and (iii) any closing agreements
entered into by any of the Conveyed Entities or their Subsidiaries with any
taxing authority, in each case existing on the date hereof. The Conveyed
Entities and their Subsidiaries will deliver to Republic and the Republic
Subsidiaries all materials with respect to the foregoing for all matters
arising after the date hereof; and
(o) Schedule 4.16 sets forth all taxable years of each
Conveyed Entity and each Subsidiary that are open for purposes of the
assessment of additional federal, state, local or foreign Income Taxes.
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Section 4.17 Employee Benefits; ERISA.
(a) Schedule 4.17 contains a true and complete list of
each material bonus, deferred compensation, incentive compensation, stock
purchase, stock option, severance, change-in-control, or termination pay,
hospitalization or other medical, life or other insurance, supplemental
unemployment benefits, profit sharing, pension, or retirement plan, program,
agreement or arrangement, and each other material employee benefit plan,
program, agreement or arrangement, sponsored, maintained or contributed to or
required to be contributed to by any Conveyed Entity, any Subsidiary thereof or
by any trade or business, whether or not incorporated (an "ERISA Affiliate"),
that together with any Conveyed Entity would be deemed a "single employer"
within the meaning of Section 4001(b)(1) of ERISA, for the benefit of any
employee or former employee of any Conveyed Entity, Subsidiary thereof or any
ERISA Affiliate (the "Plans"). Schedule 4.17 identifies each of the Plans that
is an "employee welfare benefit plan," or "employee pension benefit plan" as
such terms are defined in Sections 3(1) and 3(2) of ERISA (such plans being
hereinafter referred to collectively as the "ERISA Plans"). No Conveyed Entity,
Subsidiary thereof or any ERISA Affiliate has any formal plan or commitment,
whether legally binding or not, to create any additional Plan or modify or
change any existing Plan that would affect any employee or former employee of
any Conveyed Entity, any Subsidiary thereof or any ERISA Affiliate except to
the extent that any such creation, modification or change could not,
individually or in the aggregate, reasonably be expected to result in a
material liability of a Conveyed Entity or any of its Subsidiaries.
(b) With respect to each of the Plans, the Conveyed
Entities have heretofore delivered to Republic and the Republic Subsidiaries
true and complete copies of each of the following documents:
(i) a copy of the Plan documents (including all
amendments thereto) for each written Plan;
(ii) a copy of the annual report or Internal
Revenue Service Form 5500 Series, if required under ERISA, with respect to each
such Plan for the last three Plan years ending prior to the date of this
Agreement for which such a report was filed;
(iii) a copy of the actuarial report, if required
under ERISA, with respect to each such Plan for the last three Plan years
ending prior to the date of this Agreement;
(iv) a copy of the most recent Summary Plan
Description ("SPD"), together with all Summaries of Material Modification
issued with respect to such SPD, required under ERISA with respect to such
Plan;
(v) if the Plan is funded through a trust or any
other funding vehicle, a copy of the trust or other funding agreement
(including all amendments thereto) and the latest financial statements thereof,
if any;
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(vi) all contracts relating to the Plans with
respect to which any Conveyed Entity, Subsidiary thereof or any ERISA Affiliate
may have any material liability,
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including insurance contracts, investment management agreements, subscription
and participation agreements and record keeping agreements; and
(vii) the most recent determination letter received
from the IRS with respect to each Plan that is intended to be qualified under
Section 401(a) of the Code.
(c) Except as set forth on Schedule 4.17, as of the date
hereof, no liability under Title IV of ERISA has been incurred by any Conveyed
Entity, Subsidiary thereof or any ERISA Affiliate that has not been satisfied
in full, and no condition exists that presents a material risk to any Conveyed
Entity, Subsidiary thereof or any ERISA Affiliate of incurring a material
liability under such Title, other than liability for premiums due the Pension
Benefit Guaranty Corporation ("PBGC"), which payments have been made when due
with respect to any ERISA Plan. To the extent this representation applies to
Sections 4064, 4069 or 4204 of Title IV of ERISA, it is made not only with
respect to the ERISA Plans but also with respect to any employee benefit plan,
program, agreement or arrangement subject to Title IV of ERISA to which any
Conveyed Entity, Subsidiary thereof or any ERISA Affiliate made, or was
required to make, contributions during the past six years.
(d) Except as set forth on Schedule 4.17, as of the date
hereof, the PBGC has not instituted proceedings pursuant to Section 4042 of
ERISA to terminate any of the ERISA Plans subject to Title IV of ERISA and, to
the Knowledge of the Shareholders and the Conveyed Entities, no condition
exists that presents a material risk that such proceedings will be instituted
by the PBGC.
(e) With respect to each of the ERISA Plans that is
subject to Title IV of ERISA, the present value of accumulated benefit
obligations under such plan, as determined by the Plan's actuary based upon the
actuarial assumptions used for funding purposes in the most recent actuarial
report prepared by such plan's actuary with respect to such plan, did not, as
of its latest valuation date, exceed the then current value of the assets of
such plan allocable to such accumulated benefit obligations.
(f) Except as set forth on Schedule 4.17, as of the date
hereof, none of the Conveyed Entities or Subsidiaries thereof, the ERISA Plans
or any trust created thereunder nor, to the Knowledge of the Shareholders and
the Conveyed Entities, any trustee or administrator thereof, has engaged in a
transaction or has taken or failed to take any action in connection with which
any Conveyed Entity, or any Subsidiary thereof could reasonably be expected to
be subject to any material liability for either a civil penalty assessed
pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to
Sections 4975(a) or (b), 4976 or 4980B of the Code.
(g) Except as otherwise set forth on Schedule 4.17, as of
the date hereof, all contributions and premiums which any Conveyed Entity or
Subsidiary thereof or, to the Knowledge of the Shareholders and the Conveyed
Entities, any ERISA Affiliate is required to pay under the terms of each of the
ERISA Plans and Section 412 of the Code have, to the extent due, been paid in
full or properly recorded on the financial statements or records of the
Conveyed Entities and their Subsidiaries except to the extent that the failure
to make any such contribution or pay any such
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premium could not, individually or in the aggregate, reasonably be expected to
result in a material liability to the Conveyed Entities and their Subsidiaries
taken as a whole; and none of the ERISA Plans or any trust established
thereunder has incurred any "accumulated funding deficiency" (as deemed in
Section 302 of ERISA and Section 412 of the Code), whether or not waived, as of
the last day of the most recent fiscal year of each of the ERISA Plans ended
prior to the date of this Agreement. No Lien has been imposed under Section
412(n) of the Code or Section 302(f) of ERISA on the assets of any Conveyed
Entity, Subsidiary thereof or any ERISA Affiliate and no event or circumstance
has occurred that is reasonably likely to result in the imposition of any such
Lien on any such assets on account of any ERISA Plan.
(h) Except as otherwise set forth on Schedule 4.17, as of
the date hereof, with respect to any ERISA Plan that is a "multiemployer plan,"
as such term is defined in Section 3(37) of ERISA, (i) neither a Conveyed
Entity, any Subsidiary thereof nor any ERISA Affiliate has since June 30, 1996,
made or suffered a "complete withdrawal" or a "partial withdrawal," as such
terms are respectively deemed in Sections 4203 and 4205 of ERISA, (ii) to the
Knowledge of the Shareholders and the Conveyed Entities, no event has occurred
that presents a material risk of a partial withdrawal, (iii) to the Knowledge
of the Shareholders and the Conveyed Entities, neither a Conveyed Entity, any
Subsidiary thereof or any ERISA Affiliate has any contingent liability under
Section 4204 of ERISA, and no circumstances exist that present a material risk
that any such plan will go into reorganization, and (iv) to the Knowledge of
the Shareholders and the Conveyed Entities, the aggregate withdrawal liability
of the Conveyed Entities, Subsidiaries thereof and the ERISA Affiliates,
computed as if a complete withdrawal by the Conveyed Entities, any Subsidiaries
thereof and the ERISA Affiliates had occurred under each such Plan on the date
hereof, would not be significant.
(i) Except as otherwise set forth on Schedule 4.17, as of
the date hereof, each of the Plans has been operated and administered in all
material respects in accordance with applicable Laws, including but not limited
to ERISA and the Code.
(j) Except as otherwise set forth on Schedule 4.17, as of
the date hereof, each of the ERISA Plans that is intended to be "qualified"
within the meaning of Section 401(a) of the Code has received a determination
letter from the IRS stating that it is so qualified, and no event has occurred
which would affect such qualified status.
(k) Except as otherwise set forth on Schedule 4.17, as of
the date hereof, any Fund established under an ERISA Plan that is intended to
satisfy the requirements of Section 501(c)(9) of the Code has received a
determination letter from the IRS stating that it has so satisfied such
requirements.
(l) Except as otherwise set forth on Schedule 4.17, as of
the date hereof, no amounts payable under the Plans or any other contract,
agreement or arrangement to which any Conveyed Entity, Subsidiary thereof or,
to the Knowledge of the Shareholders and the Conveyed Entities, any ERISA
Affiliate is a party could reasonably be expected, as a result of the
transactions
-49-
contemplated hereby, to fail to be deductible for federal income tax purposes
by virtue of Section 280G of the Code.
(m) Except as otherwise set forth on Schedule 4.17, as of
the date hereof, no Plan provides for employee welfare benefits, including
death or medical benefits (whether or not insured), with respect to current or
former employees of any Conveyed Entity or any Subsidiary thereof after
retirement or other termination of service (other than (i) coverage mandated by
applicable Law, (ii) death benefits or retirement benefits under any "employee
pension plan," as that term is defined in Section 3(2) of ERISA, (iii) deferred
compensation benefits accrued as liabilities on the books of a Conveyed Entity
or any Subsidiary thereof, or (iv) benefits, the full direct cost of which is
borne by the current or former employee (or beneficiary thereof)).
(n) Except as otherwise set forth on Schedule 4.17, as of
the date hereof, the consummation of the transactions contemplated by this
Agreement will not (i) entitle any current or former employee or officer of any
Conveyed Entity or any Subsidiary thereof to severance pay, unemployment
compensation or any other similar termination payment or (ii) accelerate the
time of payment or vesting, or increase the amount of compensation due any such
employee or officer.
(o) Except as set forth on Schedule 4.17, as of the date
hereof, there are no pending, or, to the Knowledge of the Shareholders and the
Conveyed Entities, threatened or anticipated, claims by or on behalf of any
Plan, by any employee or beneficiary covered under any such Plan, or otherwise
involving any such Plan (other than routine claims for benefits) other than
claims that individually or in the aggregate would not have a Material Adverse
Effect.
Section 4.18 Labor Matters. Except as set forth on Schedule 4.18,
as of the date hereof, to the Knowledge of the Shareholders and the Conveyed
Entities, (i) there is no labor strike, slowdown, stoppage or lockout actually
pending or threatened against a Conveyed Entity or any of its Subsidiaries;
(ii) no union represents the employees of a Conveyed Entity or any of its
Subsidiaries; (iii) neither a Conveyed Entity nor any of its Subsidiaries is a
party to or bound by any collective bargaining or similar agreement with any
labor organization; (iv) each Conveyed Entity and each of its Subsidiaries is,
and has at all times been, in compliance, in all material respects, with all
applicable Laws respecting employment and employment practices, terms and
conditions of employment, wages, hours of work and occupational safety and
health, and is not engaged in any unfair labor practices as defined in the
National Labor Relations Act or other applicable Law, ordinance or regulation;
(v) there is no unfair labor practice charge or complaint asserted against any
Conveyed Entity or any of its Subsidiaries pending or, to the Knowledge of the
Shareholders and the Conveyed Entities, threatened before the National Labor
Relations Board or any similar state or foreign agency, which if adversely
determined against any Conveyed Entity or any of its Subsidiaries, would have a
Material Adverse Effect; (vi) there is no material grievance arising out of any
collective bargaining agreement or other grievance procedure pending before any
Governmental Authority; (vii) no material charges with respect to or relating
to any Conveyed Entity or any of its Subsidiaries are pending before the Equal
Employment Opportunity Commission or any other agency responsible for the
prevention of unlawful employment practices, which, if adversely determined
against any Conveyed Entity or any
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Subsidiaries thereof, would have a Material Adverse Effect; (viii) neither a
Conveyed Entity nor any of its Subsidiaries has received written notice, from
June 30, 1996 through the date hereof of the intent of any federal, state,
local or foreign agency responsible for the enforcement of labor or employment
Laws to conduct an investigation with respect to or relating to any Conveyed
Entity or any of its Subsidiaries and no such investigation is in progress; and
(ix) there are no complaints, lawsuits or other proceedings pending or
threatened in any forum by or on behalf of any present or former employee of a
Conveyed Entity or any of its Subsidiaries alleging breach of any express or
implied contract or employment, any Law governing employment or the termination
thereof or other discriminatory, wrongful or tortious conduct in connection
with the employment relationship, which, if adversely determined against any
Conveyed Entity or any of its Subsidiaries, would have a Material Adverse
Effect.
Section 4.19 Franchisees. Schedule 4.19 sets forth the name of
each Franchisee and Subfranchisor, his territory, the address of each
Franchisee's and Subfranchisor's office, and the scheduled renewal or
expiration date of each Franchisee's and Subfranchisor's franchise agreement.
Except as set forth on Schedule 4.19, as of the date hereof, there is no
material dispute between any of the Conveyed Entities or any of their
Subsidiaries, on one hand, and any Franchisee or Subfranchisor, on the other
hand.
Section 4.20 Records. Except as set forth on Schedule 4.20, to
the Knowledge of the Shareholders and the Conveyed Entities:
(a) The respective corporate record books of each
Conveyed Entity and each of its Subsidiaries contain records of all material
meetings and reflect, in all material respects, all other actions taken by the
partners, stockholders, Board of Directors and all material committees of the
Board of Directors of such Conveyed Entity and its Subsidiaries. All such
record books have been made available by the Conveyed Entities to Republic and
the Republic Subsidiaries.
(b) As of the date hereof, the books, records and work
papers of the Conveyed Entities and their Subsidiaries are complete and
correct, in all material respects, have been maintained in accordance with
applicable Laws and reflect the basis for the financial condition and results
of operations of the Conveyed Entities and their Subsidiaries set forth in the
combined financial statements of Alamo and its Affiliates.
Section 4.21 Affiliate Transactions. Schedule 4.21 contains a
summary of all material transactions from December 31, 1995 through the date
hereof between a Conveyed Entity or any of its Subsidiaries, on the one hand,
and any current shareholder, partner, director, executive officer or other
Affiliate of a Conveyed Entity or any of its Subsidiaries, or any entity in
which any such Person has a direct or indirect material interest, on the other
hand, other than standard employment agreements, arrangements and employee
benefit plans.
Section 4.22 Brokers. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this
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Agreement based upon arrangements made by or on behalf of the Shareholders or
any of the Conveyed Entities or their Subsidiaries.
Section 4.23 Information in Registration Statement. None of the
information supplied in writing or to be supplied in writing by the
Shareholders, the Conveyed Entities or any of their Subsidiaries for the
purpose of inclusion or incorporation by reference in the Registration
Statement (the "Registration Statement") to be prepared by, and filed with the
SEC, by Republic and the Republic Subsidiaries in respect of the registration
of the Republic Common Stock to be issued in connection with the transactions
contemplated hereby will, at the time it is filed with the SEC and at the time
it becomes effective under the Securities Act, contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein if necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
Section 4.24 Certain Accounting Matters. To the knowledge of the
Shareholders, none of the Conveyed Entities or the Shareholders, nor any of
their Affiliates, has taken any action that (without regard to any action taken
or agreed to be taken by Republic or any of its Affiliates) would prevent
Republic from accounting for the transactions contemplated hereby as pooling of
interests business combinations.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF
REPUBLIC AND THE REPUBLIC SUBSIDIARIES
Republic and each Republic Subsidiary jointly and severally represent
and warrant to the Shareholders as follows:
Section 5.1 Authority; Binding Effect. Republic and each
Republic Subsidiary has full corporate power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
The execution, delivery and performance of this Agreement by Republic and each
Republic Subsidiary and the consummation by Republic and each Republic
Subsidiary of the transactions contemplated hereby have been duly authorized by
all necessary corporate action on the part of Republic and each Republic
Subsidiary, respectively, and no other corporate proceedings on the part of
Republic or any Republic Subsidiary is necessary to authorize this Agreement or
to consummate the transactions contemplated hereby. This Agreement has been
duly executed and delivered by Republic and each Republic Subsidiary and
constitutes a valid and binding obligation of Republic and each Republic
Subsidiary enforceable against Republic and each Republic Subsidiary in
accordance with its terms.
Section 5.2 Organization. Republic and each Republic Subsidiary
is a duly organized and validly existing corporation, in good standing under
the laws of the state of its incorporation. Republic and each Republic
Subsidiary has delivered to the Shareholders and the Conveyed Entities a
complete and correct copy of its certificate of incorporation and Bylaws, each
as amended to date.
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Such organizational documents are in full force and effect and neither Republic
nor any Republic Subsidiary is in violation of any provision of such
organizational documents.
Section 5.3 Non-Contravention. Except as set forth on Schedule
5.3, the execution and delivery by Republic and the Republic Subsidiaries of
this Agreement does not, and the consummation by Republic and the Republic
Subsidiaries of the transactions contemplated hereby and the performance by
Republic and the Republic Subsidiaries of their respective obligations
hereunder will not, (a) result in the violation of any Requirement of Law
applicable to Republic or any Republic Subsidiary or (b) (i) result in the
creation of any Lien on the properties or assets of Republic or any Republic
Subsidiary or (ii) violate, or result in the violation of, or default (with or
without notice or lapse of time, or both) under any provision of, or result in
the termination or acceleration of, or give rise to a right of termination or
acceleration of or the loss of a material benefit under, any loan agreement,
note, contract, lease, Plan, obligation, instrument, Lien or Permit applicable
to Republic or any Republic Subsidiary or the properties or assets thereof.
Section 5.4 Consents and Approvals. Except as set forth on
Schedule 5.4 and except for filings under the Securities Act, the HSR Act and
other Competition Laws, no consent, authorization, order or approval of, or
filing or registration with, any Governmental Authority is required for or in
connection with the execution and delivery of this Agreement by Republic and
the Republic Subsidiaries and the consummation by Republic and the Republic
Subsidiaries of the transactions contemplated hereby and the performance by
Republic and the Republic Subsidiaries of their respective obligations
hereunder.
Section 5.5 SEC Documents. Republic has made available to the
Shareholders true and correct copies of its Quarterly Reports on Form 10-Q for
the fiscal quarters ended March 31, 1996, June 30, 1996, and September 30,
1996, and a true and correct copy of its proxy statement relating to its 1996
annual meeting of stockholders held on May 10, 1996. As of their respective
dates, all of the documents so filed with the SEC complied in all material
respects with the requirements of the Exchange Act or the Securities Act, as
the case may be, and the applicable rules of the SEC thereunder, and none of
such documents contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The financial statements of Republic included in such
documents comply as to form in all material respects with applicable accounting
requirements and with the published rules and regulations of the SEC with
respect thereto, have been prepared in accordance with GAAP applied on a
consistent basis during the periods involved (except as may be indicated in the
notes thereto or, in the case of the unaudited statements, as permitted by Form
10Q of the SEC) and fairly present the consolidated financial position of
Republic and the Republic Subsidiaries and their respective consolidated
subsidiaries as at the dates thereof and the consolidated results of their
operations and cash flows for the periods then ended.
Section 5.6 Information in Registration Statement. Subject to
Section 4.23 with respect to the information supplied in writing or to be
supplied in writing by the Shareholders, the Conveyed Entities and the
Subsidiaries thereof, none of the information included in the Registration
Statement
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will, at the time it is filed with the SEC and at the time it becomes effective
under the Securities Act, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein if necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading.
Section 5.7 Brokers. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of Republic and/or the Republic Subsidiaries.
Section 5.8 [Intentionally Deleted].
Section 5.9 Republic Common Stock. Upon the Closing, the
Republic Common Stock will be duly authorized and validly issued, shall be
fully paid and non-assessable and free of all Liens (except any Liens created
by the Shareholders).
Section 5.10 Litigation and Claims; Compliance with Laws. c.
Except as set forth on Schedule 5.10, as of the date hereof, there is no
material Litigation pending or, to Republic's or the Republic Subsidiaries'
Knowledge, threatened by or against Republic or the Republic Subsidiaries or
with respect to any of their respective properties or assets, which is not
fully covered by Republic's or the Republic Subsidiaries' insurance policies or
which, if adversely determined, would have a material adverse effect on the
business, results of operations or financial condition of Republic or the
Republic Subsidiaries or prohibit or otherwise adversely affect Republic's or
the Republic Subsidiaries' ability to consummate the transactions contemplated
hereby. No Litigation before any arbitrator or Governmental Authority has been
commenced, is pending or, to Republic's and the Republic Subsidiaries'
Knowledge, threatened by or against Republic or any Republic Subsidiary or
against any of their respective properties or assets which, if adversely
determined, would have a material adverse effect on the business, results of
operations or financial condition of Republic or the Republic Subsidiaries or
prohibit or otherwise adversely affect Republic's or the Republic Subsidiaries'
ability to consummate the transactions contemplated hereby. Except as set
forth on Schedule 5.10, as of the date hereof, (i) neither Republic nor any
Republic Subsidiary is subject to any material order, consent decree,
settlement or similar agreement with any Governmental Authority which would
have a material adverse effect on the business, results of operations or
financial condition of Republic or any Republic Subsidiary or prohibit or
otherwise adversely affect Republic's or the Republic Subsidiaries' ability to
consummate the transactions contemplated hereby and (ii) since June 30, 1996
there has been no judgment, injunction, decree, order or other determination of
an arbitrator or Governmental Authority applicable to Republic or any Republic
Subsidiary which would have a material adverse effect on the business, results
of operations or financial condition of Republic or any Republic Subsidiary or
prohibit or otherwise adversely affect Republic's or the Republic Subsidiaries'
ability to consummate the transactions contemplated hereby.
(b) Republic and each Republic Subsidiary is in
compliance in all material respects with all Requirements of Law, including the
FTC Act, all applicable state and foreign franchise Laws
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and all Environmental Laws, holds all Permits and Environmental Permits that
are material to the conduct of their respective businesses or the ownership of
their respective properties, and are in compliance, in all material respects,
with each such Permit, except where the failure to so comply with Requirements
of Law, Environmental Laws or hold such Permits and Environmental Permits has
not had and would not reasonably be expected to have, individually or in the
aggregate, a material adverse effect on the business, results of operations or
financial condition of Republic or the Republic Subsidiaries or prohibit or
otherwise adversely affect Republic's or the Republic Subsidiaries' ability to
consummate the transactions contemplated hereby. Since June 30, 1996, neither
Republic nor any Republic Subsidiary has received any written communication
from any Governmental Authority asserting that it is not in material compliance
with any Requirement of Law, any Environmental Law or any material Permit or
Environmental Permit which non-compliance has had or could reasonably be
expected to have, individually or in the aggregate, a material adverse effect
on the business, results of operations or financial condition of Republic or
the Republic Subsidiaries or prohibit or otherwise adversely affect Republic's
or the Republic Subsidiaries' ability to consummate the transactions
contemplated hereby.
Section 5.11 Taxes. Prior to and as of the Closing, Republic will
be in control of each Republic Subsidiary within the meaning of Section 368(c)
of the Code. Immediately after the Closing, each of the Surviving Corporations
will hold substantially all of the assets of the corresponding Republic
Subsidiary. Prior to and as of the Closing, none of the Surviving Corporations
will have any plan or intention, and Republic will have no plan or intention to
cause any of the Surviving Corporations, to issue additional shares of stock
that would result in Republic losing control of the Surviving Corporation
within the meaning of Section 368(c) of the Code. Republic has no plan or
intention to reacquire any of its stock issued in the Mergers. Republic has no
plan or intention to (i) liquidate any Surviving Corporation; (ii) merge any
Surviving Corporation (other than the Alasys Surviving Corporation, the Rising
Moon Surviving Corporation, the Alamo Sales Surviving Corporation, the Alamo
Leasing Surviving Corporation, the Alamo Automobile Surviving Corporation, the
Alamo Shuttle Surviving Corporation, the Tower Restaurants Surviving
Corporation, the Tower Food Surviving Corporation and the Corporate Planners
Surviving Corporation) with or into another corporation; (iii) sell or
otherwise dispose of the stock of any Surviving Corporation, except for
transfers of stock to corporations controlled by Republic within the meaning of
Section 368(c) of the Code; or (iv) cause any Surviving Corporation to sell or
otherwise dispose of any of the assets of the corresponding Conveyed
Corporation or any of the assets acquired from the corresponding Republic
Subsidiary, except for dispositions made in the ordinary course of business or
transfers of assets to a corporation controlled by such Surviving Corporation
within the meaning of Section 368(c) of the Code. No Republic Subsidiary will
have any liabilities assumed by the corresponding Conveyed Corporation and will
not transfer to the corresponding Conveyed Corporation any assets subject to
liabilities. Prior to and as of the Closing, it is the plan and intention of
Republic to cause each Surviving Corporation to continue the historic business
of the corresponding Conveyed Corporation or will use a significant portion of
the corresponding Conveyed Corporation's historic business assets in a
business.
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Section 5.12 Financial Projections. The Shareholders and/or the
Conveyed Entities provided Republic and the Republic Subsidiaries certain
financial projections (the "Projections") attached hereto as Schedule 5.12
without any representation or warranty as to their accuracy. Neither Republic
nor any Republic Subsidiary has relied on the Projections in making their
determination to enter into this Agreement or to consummate the Transactions.
Section 5.13 Intention Concerning Reorganizations. Following the
Closing, it is Republic's present intention not to effect any merger or
liquidation involving any of the entities the capital stock of which is
contributed to Alamo or Guy Salmon, Ltd. in accordance with Section 6.2.
Section 5.14 Other Information. No representation or warranty of
Republic or any Republic Subsidiary in this Agreement, or any statement,
certificate or other document furnished or to be furnished by Republic or any
Republic Subsidiary to the Shareholders pursuant to this Agreement, nor the
exhibits and schedules hereto, contains, or on the Closing Date will contain,
any untrue statement of a material fact, or omits to state, or on the Closing
Date will omit to state, a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
ARTICLE VI
COVENANTS
Section 6.1 Access.
(a) Prior to the Closing:
(i) The Shareholders shall permit, and shall
cause the Conveyed Entities and their Subsidiaries to permit, Republic, the
Republic Subsidiaries and their respective representatives to have reasonable
access, during regular business hours and upon reasonable notice, to (I) the
assets, properties, books, records and other documents and information of the
Conveyed Entities and the Subsidiaries thereof reasonably necessary for
Republic and the Republic Subsidiaries to complete (A) their due diligence
investigation in respect of the transactions contemplated hereby and (B) the
Registration Statement and (II) the officers, directors and employees of the
Conveyed Entities and the Subsidiaries thereof, but only upon the prior written
consent of Michael S. Egan, D. Keith Cobb, Roger Ballou or their respective
designees;
(ii) The Shareholders shall furnish, or cause the
Conveyed Entities and the Subsidiaries thereof to furnish, to Republic and the
Republic Subsidiaries such financial, tax and operating data and other
available information with respect to such entities and their respective
assets, properties, employees, businesses and operations as Republic and the
Republic Subsidiaries shall from time to time reasonably request;
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provided that neither the Shareholders nor the Conveyed Entities or their
Subsidiaries shall be obligated to (x) provide Republic or any Republic
Subsidiary with any customer lists, confidential information or trade secrets
or (y) permit Republic, the Republic Subsidiaries or their respective agents or
consultants to conduct any environmental investigations, tests or studies
(including any Phase I and Phase II environmental audit(s)) relating to the
Real Property, without the prior written consent of the Shareholders; and
provided further that any such access, investigation, test or study shall be
conducted in such a manner as not to interfere unreasonably with the operation
of the business of any Conveyed Entity or any Subsidiary thereof. All
information provided to Republic or any Republic Subsidiary by or on behalf of
the Shareholders hereunder will be held by Republic and the Republic
Subsidiaries pursuant to the terms of the Confidentiality Agreement.
(b) Prior to the Closing, the Shareholders shall and
shall cause the Conveyed Entities and their Subsidiaries and their respective
accountants, counsel, agents and other representatives to cooperate with
Republic and the Republic Subsidiaries by providing information about the
Conveyed Entities and their Subsidiaries which is reasonably necessary for
Republic, the Republic Subsidiaries and their respective accountants, counsel,
agents and other representatives to prepare the Registration Statement.
Notwithstanding the final sentence of Section 6.1(a) or the terms of the
Confidentiality Agreement, Republic and the Republic Subsidiaries may, upon the
prior written consent of the Shareholders (which consent may be granted or
withheld at the Shareholders' sole discretion), disclose, or cause its
representatives to disclose, and at the request of Republic and/or the Republic
Subsidiaries, the Shareholders shall, or shall cause the Conveyed Entities to,
disclose information concerning the Conveyed Entities and their Subsidiaries
and their respective businesses, assets and properties, and the transactions
contemplated by this Agreement in the Registration Statement.
Section 6.2 Conduct of Business. Except (i) as expressly
provided by this Agreement or required by any of the documents listed in the
Schedules hereto or (ii) with the prior written consent of Republic and the
Republic Subsidiaries, during the period from the date of this Agreement to the
Closing Date, the Shareholders will cause each Conveyed Entity and each
Subsidiary thereof to conduct its business only in the ordinary course
consistent with past practice and will cause the Conveyed Entities and the
Subsidiaries thereof to use commercially reasonable efforts to keep available
the services of their present officers and employees and preserve their
material relationships with licensors, licensees, Franchisees, Subfranchisors,
customers and suppliers and other Persons having material business dealings
with them. Accordingly, except as expressly provided by this Agreement, each
of the Conveyed Entities and each Subsidiary thereof shall not, during the
period from the date of this Agreement to the Closing Date, directly or
indirectly do or agree to do any of the following without the prior written
consent of Republic (which consent shall not be unreasonably withheld):
(a) amend or otherwise change its articles of
incorporation or bylaws or equivalent organizational documents;
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(b) issue, sell, reclassify, or redeem, or authorize the
issuance, sale, reclassification, or redemption of, any shares of its capital
stock of any class (or partnership interests, as the case may be), or any
options, warrants, convertible securities or other rights to acquire any equity
interest in any Conveyed Entity;
(c) declare, set aside, make or pay any dividend or other
distribution (except for Taxes).
(d) incur any indebtedness for borrowed money or issue
any debt securities, except for borrowings under existing credit facilities in
the ordinary course of business consistent with past practices; or
(e) increase the compensation payable or to become
payable to its officers and key employees, except pursuant to existing
obligations in employment contracts.
Nothing contained in this Section 6.2 shall prohibit mergers by and
between the Conveyed Entities or their Subsidiaries or require the Conveyed
Entities or their Subsidiaries to obtain the prior written consent of Republic
and/or the Republic Subsidiaries in connection therewith. In addition, prior
to the consummation of the transactions contemplated by Sections 2.2 through
2.22, any or all of the following events (collectively, the "Contributions")
may, at the option of the Shareholder Representative, be consummated: (i) all
of the capital stock of each of Alamo Canada, Green Corn, Tower and Guy Salmon
may be contributed to Alamo in exchange for additional shares of Alamo Common
Stock and (ii) all of the capital stock of Alamo Belgium and Territory Blue may
be contributed to Guy Salmon, Ltd. in exchange for additional limited
partnership interests in Guy Salmon, Ltd., such that, in each case, the
consideration received by the Shareholders hereunder shall be no different than
if the Contributions had not taken place. In the event that any of the
Contributions are consummated, the transactions contemplated at Closing shall
be modified as follows: (x) if the Contributions involving Alamo Canada, Alamo
Belgium, Territory Blue, Tower, Green Corn and/or Guy Salmon are consummated,
the transactions contemplated by Sections 2.3, 2.4, 2.5, 2.6, 2.7 and 2.8,
respectively, shall not be consummated; and (y) the number of shares of
Republic Common Stock issuable in the transactions contemplated by Section 2.2
(in the case of the Contributions involving the entities listed in clause (i)
above) and Section 2.22(b) (in the case of the Contributions involving Alamo
Belgium and Territory Blue) shall, to the extent applicable, be appropriately
increased to reflect the additional shares of Alamo Common Stock and the
additional limited partnership interests in Guy Salmon, Ltd. issued in
connection with such Contributions, such that, in each case, the consideration
received by the Shareholders hereunder shall be no different than if the
Contributions had not taken place; provided, however, that the aggregate number
of shares of Republic Common Stock issuable pursuant to Section 2.23 shall
remain unchanged.
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Section 6.3 Commercially Reasonable Efforts.
(a) Prior to the Closing, upon the terms and subject to
the conditions of this Agreement, Republic, the Republic Subsidiaries and the
Shareholders agree to, and the Shareholders agree to cause each of the Conveyed
Entities to, use commercially reasonable efforts to take, or cause to be taken,
all actions, and to do, or cause to be done, all things necessary, or required
under applicable Laws to consummate and make effective the transactions
contemplated by this Agreement as promptly as practicable including, but not
limited to, (i) the preparation and filing of all applicable forms under the
HSR Act and other Competition Laws, (ii) the preparation and filing of all
other forms, registrations and notices required to be filed to consummate the
transactions contemplated by this Agreement and the taking of such actions as
are necessary to obtain any requisite approvals, consents, orders, exemptions
or waivers by any third party or Governmental Authority, and (iii) the
satisfaction of the conditions to Closing.
(b) From the date of this Agreement through the Closing
Date, each party shall promptly consult with the other parties hereto with
respect to, provide any necessary information with respect to and provide the
other (or its counsel) copies of, all filings made by such party with any
Governmental Authority or any other information supplied by such party to a
Governmental Authority in connection with this Agreement and the transactions
contemplated by this Agreement, except personal information with respect to
officers and directors. Each party hereto shall promptly inform the other of
any communication from any Governmental Authority regarding any of the
transactions contemplated by this Agreement. If any party hereto or Affiliate
thereof receives a request for additional information or documentary material
from any such Governmental Authority prior to the Closing Date with respect to
the transactions contemplated by this Agreement, then such party will endeavor
in good faith to make, or cause to be made, as soon as reasonably practicable
and after consultation with the other party or parties, an appropriate response
in compliance with such request, but in no event shall any such response be
submitted without the prior review and consent of the other party or parties.
(c) Following the Closing, Republic shall use
commercially reasonable efforts to take, or cause to be taken, all actions, and
to do, or cause to be done, all things necessary or required under applicable
Laws to consummate and make effective, as promptly as practicable, the
transactions contemplated by this Agreement and the Registration Rights
Agreement attached hereto as Exhibit "A".
Section 6.4 No Solicitation. The Shareholders shall not, and
shall cause the Conveyed Entities and their Subsidiaries and their respective
officers, directors, Affiliates, representatives, agents and employees not to,
directly or indirectly, (a) solicit, or engage in any discussions or
negotiations with, any Person or group of Persons concerning any merger,
business combination, sale of material assets, sale of shares, partnership
interests or other securities or any similar transactions involving the
Conveyed Entities or their Subsidiaries, or (b) enter into any agreement or
commitment (whether or not binding) with respect to any of the foregoing
transactions. The Shareholders will
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immediately notify Republic if any third party attempts to initiate any
solicitation, discussion or negotiation with respect to any of the foregoing
transactions.
Section 6.5 Further Assurances. From and after the Closing Date,
the Shareholders shall, at the sole cost and expense of Republic and the
Republic Subsidiaries, promptly execute, acknowledge and deliver any other
assurances or documents reasonably requested by Republic and the Republic
Subsidiaries to permit Republic and the Republic Subsidiaries to satisfy their
respective obligations hereunder or evidence title or to provide to Republic
and the Republic Subsidiaries the benefits contemplated hereby.
Section 6.6 SEC Documents; Financial Statements.
(a) Alamo shall deliver to Republic and the Republic
Subsidiaries a true and correct copy of its Quarterly Reports on Form 10-Q for
each quarter prior to the Closing Date, which Quarterly Reports shall be
delivered to Republic and the Republic Subsidiaries as, and promptly after the
time, filed with the SEC.
(b) The Shareholders shall cause to be prepared, at the
sole cost and expense of Republic and the Republic Subsidiaries, all reasonably
requested financial statements of the Conveyed Entities and their Subsidiaries
required to be included in the Registration Statement.
Section 6.7 Certain Tax Matters.
(a) S Corporation Status. From the date hereof through
the Closing Date, the Shareholders and the Conveyed Corporations shall maintain
the status as an S corporation for federal, state and local Income Tax purposes
of each of the Conveyed Corporations (other than any Conveyed Corporation that
is not an S corporation for federal, state or local Income Tax purposes as of
the date hereof).
(b) Conveyed Partnership Status. From the date hereof
through the Closing Date, the Shareholders and the Conveyed Partnerships shall
maintain the status of each of the Conveyed Partnerships as a partnership for
federal, state or local Income Tax purposes.
(c) Preparation and Filing of Tax Returns: Payment of
Taxes. (i) The Shareholders shall prepare (at their own cost and expense and
in a manner consistent with past practice) all Income Tax Returns for all
taxable periods ending on or before the Closing Date (such periods being
hereinafter referred to as "Pre-Closing Periods") for each Conveyed Corporation
that is an S corporation, for each jurisdiction in which such Conveyed
Corporation is an S corporation, and (ii) each Conveyed Partnership. The
Shareholders shall deliver to Republic and the Republic Subsidiaries each such
Tax Return that has not been filed by the Closing Date no later than fifteen
(15) days prior to the due date for the filing of such Tax Return (including
any extensions requested and received), and Republic and/or the Republic
Subsidiaries shall file or cause such Tax Return to be filed on or before such
due date. At the request of the Shareholders, Republic and the Republic
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Subsidiaries shall file or cause the relevant Conveyed Entity to file one or
more requests for an extension of the time to file any Tax Return referred to
in this Section 6.7(c)(i). The Shareholders shall pay all federal, state and
local Income Taxes shown to be due and payable by them on such Tax Returns.
(ii) Republic and the Republic Subsidiaries shall
cause each of the Conveyed Entities and its Subsidiaries to prepare and file
(in each case, at Republic's and the Republic Subsidiaries' own cost and
expense) on a timely basis all Tax Returns of each of the Conveyed Entities and
its Subsidiaries other than those referred to in Section 6.7(c)(i) hereof.
Subject to Section 6.7(e), Republic and the Republic Subsidiaries shall pay or
cause each of the Conveyed Entities and its Subsidiaries to pay all Taxes shown
to be due and payable on each such Return.
(iii) The Shareholders, Republic, the Republic
Subsidiaries and their respective Subsidiaries shall cooperate, and shall cause
their respective, officers, employees, agents, auditors and representatives to
cooperate, in (x) preparing and filing the Tax Returns of the Conveyed Entities
and (y) defending against any adjustments proposed by any taxing authority, in
each case with respect to any taxable period that begins before the Closing
Date, including maintaining and making available to each other all necessary or
appropriate records.
(d) Transfer and Similar Taxes. Notwithstanding any
other provision of this Agreement to the contrary, Republic and the Republic
Subsidiaries shall assume and promptly pay all sales, use, privilege, transfer,
documentary, gains, stamp, duties, recording and similar Taxes and fees
(including any penalties, interest or additions) imposed upon any party in
connection with the transfer of any of the Company Common Stock and the
Partnership Interests (collectively, the "Transfer Taxes"), and Republic and
the Republic Subsidiaries shall procure any stock transfer stamps required by,
and accurately file all necessary Tax Returns and other documentation with
respect to, any Transfer Tax.
(e) Tax Indemnification.
(i) Republic and the Republic Subsidiaries shall
jointly and severally indemnify, defend and hold harmless each Shareholder from
and against any and all Losses asserted against, resulting to, imposed on or
sustained, incurred or suffered by such Shareholder, directly or indirectly, by
reason of or resulting from any and all Taxes imposed upon any of the Conveyed
Entities or its Subsidiaries with respect to (x) any taxable period beginning
before the Closing Date and ending after the Closing Date (such taxable periods
are hereinafter referred to as "Straddle Periods", and the Taxes for such
periods are hereinafter referred to as "Straddle Taxes") and (y) any taxable
period (other than a Straddle Period) ending after the Closing Date (such
taxable periods are hereinafter referred to as "Post-Closing Periods", and the
Taxes for such periods are hereinafter referred to as "Post-Closing Taxes").
(ii) Indemnification payments pursuant to this
Section 6.7(e) shall be made by paying to the indemnified party amounts that,
on an after-Tax basis reflecting the Tax
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consequences, if any, of each payment by the indemnified party of Taxes and the
receipt of the payments from the indemnifying party pursuant to this Section
6.7(e), are equal to the amount of the Losses suffered by the indemnified
party. Any payment due pursuant to this Section 6.7(e) shall be made not later
than three (3) days after receipt by the indemnifying party of written notice
from the indemnified party stating that any Losses against which the
indemnified party is entitled to indemnification have been paid and the amount
thereof and of the related indemnity payment. Any indemnification payment
required to be made hereunder that is not paid when due shall bear interest
until paid at a rate per annum equal to the rate of interest publicly announced
in the Wall Street Journal from time to time as the prime rate.
(iii) For purposes of determining the amount of
Straddle Taxes for or which relate to the pre-Closing or post-Closing portion
of Straddle Period, the Closing Date shall be treated as the last day of a
taxable period, and the portion of any such Tax that is allocable to the
taxable period that is so deemed to end on and include the Closing Date: (x) in
the case of Taxes that are either (1) based upon or measured by income or
receipts or (2) imposed in connection with any sale, transfer, assignment or
distribution of property (real or personal, tangible or intangible), shall be
deemed equal to the amount which would be payable if the period for which such
Tax is assessed ended on and included the Closing Date, and (y) in the cases of
Taxes other than Taxes described in clause (x) hereof, shall be the total
amount of Tax for the full taxable period that includes the Closing Date
multiplied by a fraction, the numerator of which is the number of days in the
pre-Closing portion of the Straddle Period and the denominator of which is the
total number of days in that full taxable period.
(iv) If a notice of deficiency, proposed
adjustment, adjustment, assessment, audit, examination, suit, dispute or other
claim with respect to Taxes for which one party to this Agreement is entitled
to indemnification from another party (a "Tax Claim") shall be delivered or
sent to or commenced or initiated against any of the Conveyed Entities or its
Subsidiaries by any taxing authority, such Conveyed Entity or Subsidiary shall
promptly notify the Shareholders in writing of the Tax Claim. If a Tax Claim
shall be delivered or sent to or commenced or initiated against any Shareholder
by any taxing authority, such Shareholder shall promptly notify Republic or the
Republic Subsidiaries in writing of such Tax Claim.
(f) Personnel. Republic and each Republic Subsidiary
hereby agrees to cause the Conveyed Entities to file their respective Tax
Returns for all Straddle Periods on or before the due date therefor (including
any permitted filing extension). Republic and each Republic Subsidiary further
agrees to employ, engage and/or retain such personnel as would be necessary to
accomplish the foregoing, possibly including one or more of those individuals
specified on Schedule 6.7(f).
(g) Tax-Free Reorganization. From and after the date
hereof and through the Closing, each party hereto shall use its best efforts to
cause the Mergers to qualify, and shall not take any action or cause any action
to be taken which could prevent any Merger from qualifying, as a reorganization
under Section 368(a) of the Code. Following the Closing, none of Republic, any
Surviving Corporation nor any of their Affiliates shall knowingly take any
action or knowingly cause
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any action to be taken which could reasonably be expected to cause any Merger
to fail to qualify as a reorganization under Section 368(a) of the Code.
Section 6.8 Intercompany Obligations; Affiliate Agreements.
(a) Except for accounts of the types set forth in
Schedule 6.8(a) or accounts incurred in the ordinary course of business
consistent with past practice and in connection with goods actually sold or
services actually rendered, immediately prior to the Closing, the Shareholders
shall cause (i) all of their Affiliates (other than the Conveyed Entities and
Subsidiaries thereof) to repay in full any Indebtedness or other amounts owing
to the Conveyed Entities or their Subsidiaries and (ii) all of their Affiliates
(other than the Conveyed Entities and Subsidiaries thereof) to satisfy and
discharge in full, or at the Shareholders' option cancel without payment, any
Indebtedness or other amounts owing to such Persons from the Conveyed Entities
or their Subsidiaries.
(b) Except for those agreements set forth on Schedule
6.8(b), prior to the Closing, the Shareholders shall cause all agreements
between the Shareholders or their Affiliates (other than the Conveyed Entities
and the Subsidiaries thereof), on the one hand, and any Conveyed Entity or
Subsidiary thereof, on the other hand, to be terminated in all respects such
that there shall be no liability thereunder on the part of any Conveyed Entity
or any Subsidiary thereof.
Section 6.9 [Intentionally Deleted].
Section 6.10 [Intentionally Deleted].
Section 6.11 HSR Act Filings; Other Action. Subject to the terms
and conditions herein provided, Republic, the Republic Subsidiaries and the
Shareholders shall with respect to the HSR Act: (a) promptly make their
respective filings and thereafter make any other required submissions under the
HSR Act with respect to the transactions contemplated hereby (including without
limitation diligently and promptly responding to any "second request" from the
Antitrust Division of the Department of Justice or the Federal Trade
Commission); (b) use reasonable commercial efforts to cooperate with one
another in (i) determining which filings are required to be made prior to the
Closing Date with, and which consents, approvals, permits or authorizations are
required to be obtained prior to the Closing Date from, governmental or
regulatory authorities of the United States, the several states and foreign
jurisdictions in connection with the execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby and (ii) timely
make all such filings and timely seek all such consents, approvals, permits or
authorizations; and (c) use reasonable commercial efforts to take, or cause to
be taken, all other actions and do, or cause to be done, all other things
necessary, proper or appropriate to consummate and make effective the
transactions contemplated by this Agreement.
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Section 6.12 Non-Competition.
(a) The Shareholders severally (but not jointly) agree
that for a period beginning on the Closing Date and ending on the third
anniversary of the Closing Date, each Shareholder and his Affiliates shall not
(A) engage in, anywhere in the world, the daily general use automobile rental
business or (B) directly or indirectly invest in, manage, operate, join or
control as a partner, stockholder, consultant or otherwise, any Person that
engages in any type of automobile rental business (including, without
limitation, the general use, Local Business and Replacement Business),
provided, however, that, it shall not be deemed to be a violation of this
Section 6.12 for (i) the Shareholders to acquire, directly or indirectly, an
interest in or invest in securities of any Person whose business, at the time
of such acquisition or investment, derives less than 5% of its revenues from
the daily general use automobile rental business; (ii) the Shareholders to
invest in securities, which are publicly traded or listed on any securities
exchange or automated quotation system, of any Person engaged in the daily
general use automobile rental business so long as such investment is solely as
a passive investor and not with the purpose or intent of controlling or
managing such Person and which constitute no more than 5% of the outstanding
securities of the same class of the issuer thereof; (iii) Norman D. Tripp and
William H. Kelly, Jr., to provide legal services to any automobile rental
business; and/or (iv) William H. Kelly, Jr. to, directly or indirectly, invest
in, manage, operate, join or control as a partner, stockholder, consultant or
otherwise any Person that engages in the automobile business.
(b) The Shareholders, Republic and each Republic
Subsidiary has independently consulted with its counsel and after such
consultation agrees that the covenants set forth in this Section 6.12 are
reasonable and proper. It is the desire and intent of the parties that the
provisions of this Section 6.12 shall be enforced to the fullest extent
permissible under applicable Law. If all or part of this Section 6.12 is held
invalid, illegal or incapable of being enforced by any Law or public policy,
all other terms and provisions of this Agreement shall nevertheless remain in
full force and effect. If any part of this Section 6.12 is finally determined
in a proceeding by a Governmental Authority to be excessively broad as to
duration, scope, activity or subject, such part will be construed by limiting
and reducing it so as to be enforceable to the maximum extent compatible with
applicable Law.
Section 6.13 Public Disclosure. The parties hereto agree that no
press release or similar public announcement or communication shall, if prior
to the Closing, be made or caused to be made concerning the execution or
performance of this Agreement without each party's prior written consent (which
consent may be granted or withheld at any party's sole discretion); provided
however that any press release or similar public announcement or communication
as may be required to comply with the requirements of any applicable Laws shall
not require any party's consent but shall only be made after (a) the disclosing
party consults with legal counsel regarding such press release or similar
public announcement or communication and (b) the Shareholders and Republic
consult in advance, and cooperate, with respect to the content and substance of
any required press release or similar public announcement or communication.
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Section 6.14 Affected Employees. (a) It is the intention of the
parties hereto that the employees of the Conveyed Entities and their
Subsidiaries (including employees on vacation, leave of absence, disability or
layoff) immediately prior to the Closing Date will remain employees of the
Conveyed Entities and their Subsidiaries immediately following the Closing Date
at the salary levels (or higher) and subject to the rights (including
severance) under existing employment agreements or arrangements (including
without limitation FAMPACT) in effect immediately prior to the Closing Date,
subject to the right of the Conveyed Entities and their Subsidiaries to deal
with (including by termination of employment) their employees.
(b) After the Closing Date, Republic and the Republic
Subsidiaries will and will cause the Conveyed Entities and the Subsidiaries
thereof to give to each Affected Employee the same service credit with
Republic, the Republic Subsidiaries and the Conveyed Entities and the
Subsidiaries thereof as each such Affected Employee previously earned up to the
Closing Date for purposes of determining the Affected Employee's eligibility to
participate in, vesting under, benefit accrual under, eligibility for early
distribution of benefits from and eligibility for early retirement or any other
subsidized benefit provided for in any employee benefit plan, practice or
policy established, maintained or contributed to by Republic, the Republic
Subsidiaries and/or the Conveyed Entities and the Subsidiaries thereof (a
"Republic Subsidiary's Plan") in which such Affected Employee is eligible to
participate and shall, where appropriate, cause each Republic Subsidiary's Plan
to reflect the foregoing requirement.
(c) For a period of one (1) year after the Closing Date,
the Affected Employees will be provided such pension and other employee
benefits, which are identical to, or no less favorable in the aggregate than,
such benefits provided to them by the Conveyed Entities and the Subsidiaries
thereof immediately prior to the Closing Date. For purposes of computing
deductible amounts (or like adjustments or limitations on coverage) under
Republic's or any Republic Subsidiary's Plan which is an "employee welfare
benefit plan," as defined in Section 3(1) of ERISA (a "Successor Welfare Plan")
in which such Affected Employee is eligible to participate, expenses and claims
previously recognized for similar purposes under any plans of the Conveyed
Entities and the Subsidiaries thereof, providing similar benefits prior to the
Closing Date, shall be credited or recognized under the applicable Successor
Welfare Plan.
(d) Republic and each Republic Subsidiary hereby agrees
to pay or cause the Conveyed Entities and the Subsidiaries thereof to pay (i)
all accrued bonuses payable by the Conveyed Entities and the Subsidiaries
thereof under all employment, severance, consulting or other agreements with
employees and consultants of the Conveyed Entities and the Subsidiaries thereof
and (ii) the unaccrued amounts payable by the Conveyed Entities and the
Subsidiaries to the individuals and in the amounts set forth on Schedule 6.14.
Section 6.15 [Intentionally Deleted].
Section 6.16 Insurance. From and after the Closing Date until the
fifth anniversary thereof, Republic and the Republic Subsidiaries hereby agree
to maintain, in full force and effect, the directors'
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and officers' insurance policies of the Conveyed Entities set forth on Schedule
6.16, or procure and maintain, in full force and effect, replacement insurance
policies which are no less favorable than the insurance policies on said
Schedule. From and after the Closing Date until the fifth anniversary thereof,
Republic and the Republic Subsidiaries further agree to maintain, in full force
and effect, and/or procure and maintain, in full force and effect, customary
liability insurance policies for the Conveyed Entities and their Subsidiaries
which (a) name the Shareholders as additional insureds and (b) cover all
periods prior to the Closing Date.
Section 6.17 Distribution of Earnings. (a) Republic and the
Republic Subsidiaries hereby acknowledge that, prior to the Closing Date, the
Conveyed Entities declared and paid to the Shareholders dividends and/or
distributions (the "Tax Dividends") to be used by the Shareholders exclusively
to satisfy their respective Tax liabilities attributable to their status as
shareholders or partners of the Conveyed Entities for the period beginning
January 1, 1996 and ending on the Closing Date (the "1996 Pre-Closing Period").
To the extent the Income Taxes for the 1996 Pre- Closing Period, as estimated
by the Shareholders and provided in writing to Republic one (1) day prior to
the Closing Date, exceed the Tax Dividends paid (such excess, the "Estimated
Excess Tax Amount"), Republic shall issue to the Shareholders, on the Closing
Date, that number of shares (the "Tax Shares") of Republic Common Stock having
a value (based on the per share price of Republic Common Stock utilized to
determine the Aggregate Consideration) equal to the Estimated Excess Tax
Amount; provided that the value (based on the per share price of Republic
Common Stock utilized to determine the Aggregate Consideration) of the Tax
Shares shall not exceed $15,000,000 in the aggregate.
(b) Republic shall cause the Conveyed Entities to provide
to the Shareholders, on or before February 15, 1997, all information necessary
to calculate the Income Taxes payable by the Shareholders which are
attributable to their status as shareholders or partners of the Conveyed
Entities for the 1996 Pre-Closing Period (the "1996 Income Taxes"). No later
than April 1, 1997, the Shareholders shall provide to Republic's "Big 6"
accountants a copy of page 2 of each Shareholder's 1996 Federal Income Tax
Return, Form 1040 (the "Tax Disclosure") showing the total amount of 1996
Income Taxes (and the calculation thereof and related supporting schedules),
which tax return shall be prepared by a "Big 6" accounting firm chosen by each
Shareholder (the "Return Preparer(s)"). Republic and the Shareholders hereby
agree that a "Big 6" accounting firm chosen by Republic shall have the right to
consult with the Return Preparer(s) between February 15, 1997 and April 1, 1997
in respect of the Shareholders' respective 1996 Federal Income Tax Returns,
Form 1040, and the calculation of the Taxes shown to be due thereon, and the
Shareholders shall direct the Return Preparer(s) to so consult with such "Big
6" accounting firm. The 1996 Income Taxes of the Shareholders, based on the
Tax Disclosure, shall be conclusive and binding on Republic and the
Shareholders absent mathematical errors. The excess of (i) the 1996 Income
Taxes, based on the Tax Disclosure, over (ii) the Tax Dividends is hereinafter
referred to as the "Excess Tax Amount." If the Excess Tax Amount is less than
the Estimated Excess Tax Amount, the Shareholders will return to Republic
(within five (5) days of such determination) that number of Tax Shares having a
value (based on the per share price of Republic Common Stock utilized to
determine the Aggregate Consideration) equal to such difference. In no event
shall the Shareholders be required, for purposes
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of this Section 6.17(b), to return to Republic more than the number of Tax
Shares issued by Republic to the Shareholders. If the Excess Tax Amount is
greater than the Estimated Excess Tax Amount, Republic will not be required to
issue additional shares of Republic Common Stock to the Shareholders.
(c) If the Tax Dividends exceed the 1996 Income Taxes,
based on the Tax Disclosure, the Shareholders shall pay, in cash, any such
excess amount to the entity from which such Tax Dividends were made.
(d) The Shareholders represent and warrant that the
Estimated Excess Tax Amount will be recorded as an accrued dividend payable in
the financial statements of the Conveyed Entities one (1) day prior to the
Closing Date and such accrued dividend payable is a valid and legal liability
of the Conveyed Entities.
(e) For purposes of this Section 6.17, the term "Income
Taxes" shall mean any federal, state, local or foreign tax based on or measured
by net income.
(e) For purposes of making the calculation of Excess Tax
Amount:
(i) Federal income taxes shall be computed as the
difference between (x) the Shareholders' federal income tax liability from
their respective 1996 federal income tax returns, including all items of
income, deduction and credit from the Conveyed Entities and (y) the
Shareholders' federal income tax liability from their respective 1996 federal
income tax returns, excluding all items of income, deduction and credit from
the Conveyed Entities; and
(ii) State and local income taxes (reduced by the
corresponding federal income tax benefit to the Shareholders) shall be computed
as the difference between (x) the Shareholders' state and local income tax
liability from their respective state or local income tax returns, including
all items of income, deduction and credit from the Conveyed Entities and (y)
the Shareholders' state and local tax liability from their respective state or
local income tax returns, excluding all items of income, deductions and credits
from the Conveyed Entities.
Section 6.18 Pooling Accounting. Each of the parties hereto
shall use its reasonable efforts to cause the business combination to be
effected by the Transactions to be accounted for as a pooling of interests.
Each of the parties hereto shall use its reasonable efforts to cause its
Affiliates not to take any action that would adversely affect the ability of
Republic and the Republic Subsidiaries to account for the business combination
to be effected by the Transactions as a pooling of interests.
Section 6.19 Sale of Republic Common Stock. From and after the
Closing Date, Republic shall cooperate with the Shareholders to effect the sale
of the Republic Common Stock as the Shareholders may reasonably request
(including, without limitation, making its officers available to discuss the
business of Republic to potential purchasers of the Republic Common Stock and
preparing any supplements or amendments to the Registration Statement) and
Republic will execute and deliver,
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or arrange for the execution and delivery of, such documents as may reasonably
be requested by the Shareholders related to the sale of the Republic Common
Stock.
Section 6.20 Certified. Republic agrees to cause the Conveyed
Entities and their respective Subsidiaries to continue to provide data, public
relations, human resources and marketing services to Certified Tours, Inc.,
Dancing Bear Group, Inc. and New River Technologies, Inc. on the same terms and
conditions contained in the agreements in effect as of the date hereof between
such Persons and one or more of the Conveyed Entities and the Subsidiaries
thereof. Notwithstanding anything to the contrary contained in any agreement
between any one or more of the Conveyed Entities, Certified Tours, Inc.,
Dancing Bear Group, Inc. and New River Technologies, Inc. (or any affiliate of
Certified Tours, Inc., Dancing Bear Group, Inc. or New River Technologies,
Inc.), any party thereto shall have the right to terminate such agreement at
any time without cost or penalty; provided however, that, the parties agree to
cooperate with one another and to provide reasonable assistance to one another
for a reasonable period of time, not to exceed in the case of data processing
services two (2) years, and in the case of any services other than data
processing services one (1) year, in either case, following receipt of a notice
of termination, to enable each party to arrange for satisfactory replacement of
such services.
ARTICLE XXI.
CONDITIONS TO CLOSING
Section 7.1 Conditions to the Obligations of Republic, the
Republic Subsidiaries and the Shareholders. The obligations of each party
hereto to effect the Closing are subject to the satisfaction (or waiver) on or
prior to the Closing Date of the following conditions:
(a) HSR Act. All waiting periods applicable to the
consummation of the transactions contemplated hereby under the HSR Act shall
have expired or been terminated.
(b) No Injunctions. No temporary restraining order,
preliminary or permanent injunction or other order or decree which prevents the
consummation of the transactions contemplated hereby shall have been issued and
remain in effect, and no statute, rule or regulation shall have been enacted by
any Governmental Authority which makes the consummation of the transactions
contemplated hereby illegal.
Section 7.2 Conditions to the Obligations of Republic and the
Republic Subsidiaries. The obligation of Republic and the Republic Subsidiaries
to effect the Closing is subject to the satisfaction (or waiver by Republic and
the Republic Subsidiaries) on or prior to the Closing Date, of the following
conditions:
(a) Representations and Warranties. The representations
and warranties of the Conveyed Entities contained in Article IV shall have been
true and correct in all material respects
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when made and shall be true and correct in all material respects as of the
Closing, as if made as of the Closing (except that representations and
warranties that are expressly made as of a specific date need be true in all
material respects only as of such date).
(b) Covenants. The Conveyed Entities and the
Shareholders shall have performed in all material respects the covenants and
obligations required to be performed by them on or prior to the Closing.
(c) No Material Adverse Effect. Since the date of this
Agreement, there shall not have been, or occurred any event which could
reasonably be expected to result in, a Material Adverse Effect.
(d) Certificates. The Conveyed Entities and the
Shareholders shall have furnished Republic and the Republic Subsidiaries with a
certificate of the Shareholders, dated the Closing Date, to the effect that the
conditions set forth in Sections 7.2(a), (b) and (c) have been satisfied.
(e) Opinion. The Shareholders shall have furnished
Republic and the Republic Subsidiaries with an opinion of (i) Greenberg,
Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A. and (ii) Tripp, Scott, Conklin
& Smith, in each case in form and substance reasonably satisfactory to Republic
and the Republic Subsidiaries with respect to the matters set forth in Exhibit
"B" and Exhibit "C", respectively, attached hereto.
(f) Litigation. No Litigation shall have been commenced
and be continuing by any Governmental Authority which seeks to prevent
consummation of the transactions contemplated hereby or which seeks material
damages in connection with the transactions contemplated hereby.
(g) Consents. All necessary consents, approvals and
authorizations including those described in Sections 4.4, 4.5 and 5.5 and the
Schedules thereto and the declarations and filings described in Sections 4.4,
4.5 and 5.5 and the Schedules thereto shall have been obtained, made or filed,
except for those consents, approvals, authorizations, declarations and/or
filings, the failure to obtain, make or file by the Closing Date would not,
individually or in the aggregate, subject Republic, the Republic Subsidiaries,
the Conveyed Entities or their Subsidiaries, taken as a whole, to a significant
penalty or other Material Adverse Effect as a result of consummating the
transactions contemplated hereby without having obtained, made or filed such
consents, approvals or authorizations, declarations and/or filings.
(h) Indebtedness. Republic and/or the Republic
Subsidiaries shall have either (i) refinanced the Indebtedness of the Conveyed
Entities and their Subsidiaries on terms reasonably acceptable to Republic and
the Republic Subsidiaries or (ii) obtained valid consents, waivers and
amendments to covenants, on terms reasonably acceptable to Republic and the
Republic Subsidiaries, from the holders of such Indebtedness or of Indebtedness
of any third party guaranteed by any of the Conveyed Entities ("Guaranties")
and from the issuers of any letters of credit issued for the benefit of any of
the Conveyed Entities ("LOCs") sufficient to
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permit the Closing and consummation of the transactions contemplated hereby
without resulting (with or without notice or lapse of time or both) in any
material increase in interest rate, material modification or default under such
Indebtedness, Guaranties or any obligation related to the LOCs or in any
ability of the holders of such Indebtedness (or trustees or agents) to
accelerate the time for payment thereof; provided however that the refinancing
of the 11 3/4% Notes due 2006 in the original principal amount of $100,000,000
(the "Senior Notes") shall not be a condition to Purchaser's obligation to
effect the Closing if (i) the Closing would not cause an event of default under
the Senior Notes and (ii) the holders of the Senior Notes would not have the
right to put their Senior Notes to certain of the Conveyed Entities for more
than 101% of the face thereof.
(i) Accountant's Letter With Respect to Pooling of
Interest Accounting Treatment. Republic shall have received from KPMG Peat
Marwick LLP, independent certified public accountants for the Conveyed
Entities, a letter dated the Effective Time, in form and substance reasonably
acceptable to Republic, confirming that, to their knowledge after due and
diligent inquiry of management, there have been no transactions or events with
respect to the Conveyed Entities which would, and the ownership structure and
attributes of the Conveyed Entities and the Shareholders would not, proscribe
the transactions contemplated hereby, if consummated, from being considered as
pooling of interests business combinations. Republic shall have received from
Arthur Andersen LLP, a letter dated the Effective Time, confirming that the
transactions contemplated hereby, if consummated, can properly be accounted for
as pooling of interests business combinations in accordance with GAAP and the
criteria of Accounting Principles Board Opinion No. 16 and the regulations of
the SEC.
Section 7.3 Conditions to the Obligations of the Shareholders.
The obligation of the Shareholders to effect the Closing is subject to the
satisfaction (or waiver by the Shareholders) prior to the Closing, of the
following conditions:
(a) Representations and Warranties. The representations
and warranties of Republic and the Republic Subsidiaries contained herein shall
have been true and correct in all material respects when made and shall be true
and correct in all material respects as of the Closing, as if made as of the
Closing (except that representations and warranties that are expressly made as
of a specific date need be true in all material respects only as of such date).
(b) Covenants. Republic and the Republic Subsidiaries
shall have performed in all material respects the covenants and obligations
required to be performed by them on or prior to the Closing.
(c) Certificate. Republic and the Republic Subsidiaries
shall have furnished the Shareholders with a certificate dated the Closing
Date, signed on its behalf by an executive officer of Republic and each
Republic Subsidiary, to the effect that the conditions set forth in Sections
7.3(a) and (b) have been satisfied.
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(d) Opinion. Republic and the Republic Subsidiaries shall
have furnished the Shareholders with an opinion of Akerman, Senterfitt &
Eidson, P.A. in form and substance reasonably satisfactory to the Shareholders
with respect to the matters set forth in Exhibit "D" attached hereto.
(e) Registration Rights Agreement. Republic shall have
executed that certain Registration Rights Agreement, attached hereto as Exhibit
"A", with respect to the Republic Common Stock.
(f) Indebtedness. Republic and/or the Republic
Subsidiaries shall have either (i) refinanced the Indebtedness of the Conveyed
Entities and their Subsidiaries on terms reasonably acceptable to Republic and
the Republic Subsidiaries or (ii) obtained valid consents, waivers and
amendments to covenants, on terms reasonably acceptable to Republic and the
Republic Subsidiaries, from the holders of such Indebtedness sufficient to
permit the Closing and consummation of the transactions contemplated hereby
without resulting (with or without notice or lapse of time or both) in any
material increase in interest rate, material modification or default under such
Indebtedness or in any ability of the holders of such Indebtedness (or trustees
or agents) to accelerate the time for payment thereof.
ARTICLE XXII.
SURVIVAL AND INDEMNIFICATION
Section 8.1 Survival. None of the representations and warranties
of Republic, the Republic Subsidiaries, the Conveyed Entities or the
Shareholders contained in this Agreement shall survive the Closing Date except
that (a) the representations and warranties contained in Sections 4.3 and 5.9
shall have no expiration date and (b) the representations and warranties
contained in Sections 4.16(c) and 5.11 shall terminate on the first anniversary
of the Closing Date. The covenants and agreements of the parties set forth in
this Agreement and the related indemnification obligations of the parties
hereunder to be performed or complied with after the Closing shall survive
indefinitely except as expressly provided herein. In the event written notice
of any claim for indemnification under Section 8.2 hereof shall have been given
(within the meaning of Section 10.1) within the applicable survival period, the
representations and warranties that are the subject of such indemnification
claim shall survive until such time as such claim is finally resolved.
Section 8.2 Indemnification by the Shareholders. The
Shareholders hereby agree that, from and after the Closing and until the first
anniversary of the Closing Date, they shall indemnify, defend and hold
harmless, Republic, the Republic Subsidiaries, their respective Affiliates
(including, after the Closing, the Conveyed Entities and their Subsidiaries)
and, if applicable, their respective directors, officers, shareholders,
partners, attorneys, accountants, agents and employees and their heirs,
successors and assigns (the "Republic Subsidiary's Indemnified Parties") from,
against and in respect of any actual damages, fines, judgments, claims, losses,
charges, actions, suits, proceedings, deficiencies, interest, penalties, and
reasonable costs and expenses (including reasonable attorneys'
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and consultants' fees), and in each such case, net of any insurance proceeds
payable to or for the benefit of the Person suffering such damages, fines,
judgments, claims, losses, charges, actions, suits, proceedings, interest,
penalties and/or costs and expenses, as the case may be (collectively, the
"Losses"), imposed on, sustained, incurred or suffered by or asserted against
the Republic Subsidiary's Indemnified Parties relating to or arising out of any
breach of any representation or warranty of the Shareholders contained in
Section 4.3 or Section 4.16(c).
Section 8.3 Indemnification by Republic and the Republic
Subsidiaries.
(a) In addition to the indemnification obligations set
forth in Section 6.7(e), Republic and each Republic Subsidiary hereby agrees
that, from and after the Closing and until the first anniversary thereof, it
shall indemnify, defend and hold harmless the Shareholders, their Affiliates
and, if applicable, their respective directors, officers, shareholders,
partners, attorneys, accountants, agents and employees and their heirs,
successors and assigns (the "the Shareholders' Indemnified Parties") from,
against and in respect of any Losses imposed on, sustained, expended, incurred
or suffered by or asserted against any of the Shareholders' Indemnified Parties
relating to or arising out of (i) any breach of any representation or warranty
made by Republic and/or the Republic Subsidiaries contained in this Agreement
and (ii) the breach of any covenant or agreement of Republic and/or the
Republic Subsidiaries contained in this Agreement.
(b) Republic and each Republic Subsidiary hereby further
agrees that it shall from and after the Closing indemnify, defend and hold
harmless the Shareholders' Indemnified Parties from, against and in respect of
any Environmental Costs sustained, incurred or suffered by or asserted against
any of the Shareholders' Indemnified Parties: (i) relating to or arising out of
any Environmental Liability, whether resulting from pre-Closing acts or
omissions or post-Closing acts or omissions of the Conveyed Entities and their
Subsidiaries or Republic, the Republic Subsidiaries and their Affiliates or
conditions existing before or after the Closing Date, and (ii) by virtue of the
Shareholders' Indemnified Parties status or former status as a general partner
of DKBERT Assoc. Republic's and the Republic Subsidiaries' obligation to
indemnify the Shareholders' Indemnified Parties pursuant to this Section 8.3(b)
shall not be limited as to time.
Section 8.4 Indemnification Procedures. With respect to third
party claims, other than those relating to Taxes (which are the subject of
Section 6.7(e)), all claims for indemnification by the Shareholders'
Indemnified Parties and the Republic Subsidiary's Indemnified Partners (each,
an "Indemnified Party" and, collectively, the "Indemnified Parties") hereunder
shall be asserted and resolved as set forth in this Section 8.4. In the event
that any claim or demand by any third party for which a party or parties to
this Agreement (the "Indemnifying Party) may be liable to the Indemnified Party
hereunder (a "Claim") is asserted against or sought to be collected from the
Indemnified Party by such third party, such Indemnified Party shall as promptly
as practicable notify the Indemnifying Party in writing of such Claim and the
amount or the estimated amount thereof to the extent then feasible (which
estimate shall not be conclusive of the final amount of such Claim) (the "Claim
Notice"). The failure on the part of the Indemnified Party to give any such
Claim Notice in a reasonably prompt manner shall not relieve the Indemnifying
Party of any indemnification obligation
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hereunder unless, and only to the extent that, the Indemnifying Party is
materially prejudiced thereby. The Indemnifying Party shall have thirty days
from delivery of the Claim Notice (the "Notice Period") to notify the
Indemnified Party whether or not it desires to defend the Indemnified Party
against such Claim, in which case the Indemnified Party shall, at its sole cost
and expense, have the right to defend the Indemnified Party by appropriate
proceedings and by counsel reasonably acceptable to the Indemnified Party and
shall have the sole power to direct and control such defense; provided that any
Indemnified Party may participate in any such defense at its sole cost and
expense. The Indemnified Party shall not settle a Claim for which it is
indemnified by the Indemnifying Party without the written consent of the
Indemnifying Party unless the Indemnifying Party does not defend the
Indemnified Party against such Claim. Notwithstanding the foregoing, the
Indemnified Party shall have the sole right to defend, settle or compromise any
Claim with respect to which it has agreed in writing to waive its right to
indemnification pursuant to this Agreement. Notwithstanding the foregoing, the
Indemnified Party, during the period the Shareholders are determining whether
to elect to assume the defense of a matter covered by this Section 8.4, may
take such reasonable actions as it deems necessary to preserve any and all
rights with respect to the matter, without such actions being construed as a
waiver of the Indemnified Party's rights to defense and indemnification
pursuant to this Agreement.
ARTICLE XXIII.
TERMINATION
Section 9.1 Termination. This Agreement may be terminated at any
time prior to the Closing:
(a) by mutual written agreement of Republic, the Republic
Subsidiaries and the Shareholders;
(b) by the Shareholders, by giving written notice of such
termination to Republic and the Republic Subsidiaries, if the Closing shall not
have occurred on or prior to December 20, 1996, because of an action, inaction
or material delay by Republic or any Republic Subsidiary (unless the failure to
consummate the Closing by such date shall be due to or have resulted from any
material breach of the representations or warranties made by, or the failure to
have fulfilled in all material respects the covenants or obligations of, the
Shareholders hereunder);
(c) by Republic and/or the Republic Subsidiaries, by
giving written notice of such termination to the Shareholders, if the Closing
shall not have occurred on or prior to December 20, 1996, because of an action,
inaction or material delay by the Shareholders (unless the failure to
consummate the Closing by such date shall be due to or have resulted from any
material breach of the representations or warranties made by, or the failure to
have fulfilled in all material respects the covenants or obligations of,
Republic or any Republic Subsidiary hereunder).
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(d) by Republic or the Republic Subsidiaries or by the
Shareholders, by giving written notice of termination to the other party
(provided that the terminating party is not then in material breach of any
representation, warranty, covenant or other agreement contained herein), if
there shall have been a material breach of any of the covenants or agreements
or any of the representations or warranties set forth in this Agreement on the
part of the other party, which breach is not cured within thirty days following
written notice given by the terminating party to the party committing such
breach, or which breach, by its nature, cannot be cured prior to the Closing;
(e) by either Republic or the Republic Subsidiaries or by
the Shareholders, by written notice of termination to the other party if any
Governmental Authority of competent jurisdiction shall have issued any statute,
rule, regulation, order, decree or injunction or taken any other action
permanently restraining, enjoining or otherwise prohibiting the transactions
contemplated by this Agreement and such statute, rule, regulation, order,
decree or injunction or other action shall have become final; or
(f) by Republic, within five (5) days of any amendment
or modification of the Schedules to this Agreement, if as a direct result of
any disclosure or disclosures taken as a whole on any one or more Schedules
made after the date hereof, but on or before the Schedule Date (as hereinafter
defined in Section 10.8(b)), Republic becomes aware of a circumstance or
condition that would have a Material Adverse Effect.
Section 9.2 Effect of Termination.
(a) In the event of the termination of this Agreement in
accordance with Section 9.1 hereof, subject to Section 9.2(b), this Agreement
shall thereafter become void and have no effect, and no party hereto shall have
any liability to the other party hereto or their respective Affiliates,
directors, officers or employees, except for the obligations of the parties
hereto contained in this Section 9.2 and in Sections 10.1, 10.6, 10.7 and 10.9
hereof, and except that nothing herein will relieve any party from liability
for a breach of any provision of this Agreement.
(b) If this Agreement is terminated as provided herein:
(i) Republic and the Republic Subsidiaries shall
deliver to Alamo all documents, work papers and other materials (including all
copies thereof and all memoranda, work papers and other materials prepared or
created by Republic, the Republic Subsidiaries and/or their attorneys,
accountants and other representatives based thereon or otherwise in respect of
the transactions contemplated hereby) of the Shareholders, the Conveyed
Entities or any Subsidiaries thereof relating to the transactions contemplated
hereby, whether obtained before or after the execution hereof;
(ii) all information received by Republic and/or
the Republic Subsidiaries with respect to the business of the Conveyed Entities
or any Subsidiaries thereof (other than information which is a matter of public
knowledge or which has heretofore been or is hereafter
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published in any publication for public distribution) shall not at any time be
used for the advantage of Republic and/or the Republic Subsidiaries or to the
detriment of the Person furnishing such information; and Republic and/or the
Republic Subsidiary will use their best efforts to prevent the disclosure
thereof to third persons without the prior written consent of the Shareholders
(which consent may be granted or withheld in the sole discretion of the
Shareholders); and
(iii) all filings, applications and other
submissions made pursuant to the terms of this Agreement shall, to the extent
practicable, be withdrawn from the agency or other person or entity to which
made.
(c) If this Agreement shall have been terminated (i) by
the Shareholders in accordance with Section 9.1(d) for the material breach by
Republic or any Republic Subsidiary, of any of its covenants and agreements
contained in this Agreement, following written notice of such breach and a
reasonable opportunity to cure (not to exceed thirty (30) days), then the
parties hereby agree that (x) the damages that the Shareholders shall be
entitled to receive from Republic and the Republic Subsidiaries by reason of
such termination shall in no event exceed $25,000,000, in the aggregate, and
(y) such damages may be paid in cash or, at Republic's election, by the
delivery of that number of shares of Republic Common Stock determined by
dividing the amount of such damages (not to exceed $25,000,000 in any event) by
the per share value of a share of Republic Common Stock which was used by the
parties in calculating the aggregate number of shares referenced in Section
2.23 (which common stock shall be subject to the terms and conditions of that
certain Registration Rights Agreement attached hereto as Exhibit "A") or (ii)
by Republic or any Republic Subsidiary in accordance with Section 9.1(d) for
the material breach by the Shareholders, of any of their covenants and
agreements contained in this Agreement, following written notice of such breach
and a reasonable opportunity to cure (not to exceed thirty (30) days), then the
parties hereby agree that (x) the damages that Republic or any Republic
Subsidiary shall be entitled to receive from the Shareholders by reason of such
termination shall in no event exceed $25,000,000, in the aggregate, and (y)
such damages shall be paid in cash.
ARTICLE XXIV.
MISCELLANEOUS
Section 10.1 Notices. All notices or other communications
hereunder shall be deemed to have been duly given and made if in writing and if
served by personal delivery upon the party for whom it is intended, if
delivered by registered or certified mail, return receipt requested, or by a
national courier service, or if sent by telecopier, provided that the telecopy
is promptly confirmed by telephone confirmation thereof, to the person at the
address set forth below, or such other address as may be designated in writing
hereafter, in the same manner, by such person:
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To the Shareholders:
c/o Mr. Michael S. Egan
110 S.E. 6th Street
29th Floor
Fort Lauderdale, Florida 33301
Telephone: (954) 527-6550
Telecopy: (954) 527-6182
With a copy to:
Greenberg, Traurig, Hoffman,
Lipoff, Rosen & Quentel, P.A.
1221 Brickell Avenue
Miami, Florida, 33131
Attention: Larry J. Hoffman, Esq.
Telephone: (305) 579-0500
Telecopy: (305) 579-0717
With a copy to:
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, New York 10004
Attention: Valerie Jacob, Esq.
Telephone: (212) 859-8158
Telecopy: (212) 859-4000
To Republic or the Republic Subsidiaries:
Republic Industries, Inc.
200 East Las Olas Boulevard, Suite 1400
Fort Lauderdale, Florida 33301
Attention: Richard L. Handley, General Counsel
Telephone: (954) 627-6000
Telecopy: (954) 522-8219
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With a copy to:
Akerman, Senterfitt & Eidson, P.A.
One S.E. 3rd Avenue, 28th Floor
Miami, Florida 33131
Attention: Stephen K. Roddenberry, Esq.
Telephone: (305) 374-5600
Telecopy: (305) 374-5095
Section 10.2 Amendment: Waiver. Any provision of this Agreement
may be amended or waived if, and only if, such amendment or waiver is in
writing and signed, in the case of an amendment, by Republic, the Republic
Subsidiaries and the Shareholders, or in the case of a waiver, by the party
against whom the waiver is to be effective. No failure or delay by any party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege.
Section 10.3 Assignment. No party to this Agreement may assign
any of its rights or obligations under this Agreement without the prior written
consent of the other party hereto.
Section 10.4 Entire Agreement. This Agreement (including all
Schedules, Annexes and Exhibits hereto) contains the entire agreement between
the parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings, oral or written, with respect to such
matters, except for the Confidentiality Agreement which will remain in full
force and effect for the term provided for therein and other than any written
agreement of the parties that expressly provides that it is not superseded by
this Agreement.
Section 10.5 Fulfillment of Obligations. Any obligation of any
party to any other party under this Agreement, which obligation is performed,
satisfied or fulfilled by an Affiliate of such party, shall be deemed to have
been performed, satisfied or fulfilled by such party.
Section 10.6 Parties in Interest. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns. Except as otherwise provided in this Section
10.6, nothing in this Agreement, express or implied, is intended to confer upon
any Person other than Republic, the Republic Subsidiaries, the Shareholders, or
their successors or permitted assigns, any rights or remedies under or by
reason of this Agreement.
Section 10.7 Expenses. Except as otherwise expressly provided in
this Agreement, whether or not the transactions contemplated by this Agreement
are consummated, all costs and expenses incurred by Republic and the Republic
Subsidiaries in connection with this Agreement and the transactions
contemplated hereby and all costs and expenses paid or incurred in respect of
the Registration Statement and all related Blue Sky filing requirements
(including the cost and expense of preparing such filings) and all NASDAQ
listing fees shall be borne by Republic and the Republic Subsidiaries, and all
costs and expenses incurred by the Shareholders in connection with this
Agreement and the transactions contemplated hereby shall be borne by Alamo.
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Section 10.8 Schedules.
(a) The disclosure of any matter in any Schedule to this
Agreement, as may be amended or supplemented prior to the Closing, shall be
deemed to be a disclosure for all purposes of this Agreement to which such
matter could reasonably be expected to be pertinent, but shall expressly not be
deemed to constitute an admission by the Shareholders, Republic or the Republic
Subsidiaries, or to otherwise imply, that any such matter is material for the
purposes of this Agreement.
(b) The parties hereto acknowledge and agree that, as of
the date hereof, the Schedules to this Agreement are preliminary in nature and,
therefore, may be inaccurate in certain respects. The parties hereto further
acknowledge and agree that (i) the Shareholders and the Conveyed Entities shall
be permitted to finalize the Schedules to this Agreement within five (5) days
of the date hereof (the "Schedule Date"), with the further right to revise said
Schedules prior to the Closing to correct any other inaccuracy or omission
therein and (ii) any inaccuracy or omission in any of the Schedules on or
before the Schedule Date shall not subject the Shareholders or the Conveyed
Entities to any liability or claim for damages by Republic or any Republic
Subsidiary, notwithstanding any provision to the contrary contained herein.
Section 10.9 Governing Law: Jurisdiction. This Agreement shall be
governed by the laws of the State of Florida, its rules of conflict of laws
notwithstanding. The Conveyed Entities, the Shareholders, Republic and each
Republic Subsidiary hereby agree and consent to be subject to the jurisdiction
of the U.S. federal district court and the jurisdiction of the courts of the
State of Florida wherein Broward County, Florida is located in any suit, action
or proceeding seeking to enforce any provision of, or based on any matter
arising out of or in connection with, this Agreement or the transactions
contemplated hereby. Each party hereby irrevocably consents to the service of
any and all process in any such suit, action or proceeding by the delivery of
such process to such party at the address and in the manner provided in Section
10.1.
Section 10.10 Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original, and all of
which shall constitute one and the same agreement.
Section 10.11 Headings. The heading references herein and in the
table of contents hereto are for convenience purposes only, do not constitute a
part of this Agreement and shall not be deemed to limit or affect any of the
provisions hereof.
Section 10.12 Specific Performance. Except as otherwise provided
in Section 9.2(c), the parties hereto agree that if any of the provisions of
this Agreement are not performed in accordance with their specific terms or
otherwise breached, irreparable damage would occur, no adequate remedy at law
would exist and damages would be difficult to determine, and that the parties
shall be entitled to specific performance of the terms hereof, in addition to
any other remedy at law or equity.
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IN WITNESS WHEREOF, the parties have executed or caused this Agreement
to be executed as of the date first written above.
REPUBLIC INDUSTRIES, INC., a
Delaware corporation
By: /s/ H. Wayne Huizenga
-------------------------------
Name: H. Wayne Huizenga
-----------------------------
Title: Chairman and Co-CEO
----------------------------
ALAMO ACQUISITION CORP., a Florida
corporation
By: /s/ Steven R. Berrard
-------------------------------
Name: Steven R. Berrard
-----------------------------
Title: President and Co-CEO
----------------------------
ALAMO (CANADA) ACQUISITION
CORP., a Florida corporation
By: /s/ Thomas W. Hawkins
-------------------------------
Name: Thomas W. Hawkins
-----------------------------
Title: SVP
----------------------------
ALAMO (BELGIUM) ACQUISITION
CORP., a Florida corporation
By: /s/ Thomas W. Hawkins
-------------------------------
Name: Thomas W. Hawkins
-----------------------------
Title: SVP
----------------------------
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TERRITORY BLUE ACQUISITION
CORP., a Florida corporation
By: /s/ Thomas W. Hawkins
-------------------------------
Name: Thomas W. Hawkins
-----------------------------
Title: SVP
----------------------------
TOWER ADVERTISING GROUP
ACQUISITION CORP., a Florida
corporation
By: /s/ Thomas W. Hawkins
-------------------------------
Name: Thomas W. Hawkins
-----------------------------
Title: SVP
----------------------------
GREEN CORN ACQUISITION CORP., a
Florida corporation
By: /s/ Thomas W. Hawkins
-------------------------------
Name: Thomas W. Hawkins
-----------------------------
Title: SVP
----------------------------
GUY SALMON ACQUISITION CORP., a
Florida corporation
By: /s/ Thomas W. Hawkins
-------------------------------
Name: Thomas W. Hawkins
-----------------------------
Title: SVP
----------------------------
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ALASYS ACQUISITION CORP., a
Florida corporation
By: /s/ Thomas W. Hawkins
-------------------------------
Name: Thomas W. Hawkins
-----------------------------
Title: SVP
----------------------------
TRIPPEROO WINGS ACQUISITION
CORP., a Florida corporation
By: /s/ Thomas W. Hawkins
-------------------------------
Name: Thomas W. Hawkins
-----------------------------
Title: SVP
----------------------------
RISING MOON ACQUISITION CORP., a
Florida corporation
By: /s/ Thomas W. Hawkins
-------------------------------
Name: Thomas W. Hawkins
-----------------------------
Title: SVP
----------------------------
ALAMO (PUERTO RICO) ACQUISITION
CORP., a Delaware corporation
By: /s/ Thomas W. Hawkins
-------------------------------
Name: Thomas W. Hawkins
-----------------------------
Title: SVP
----------------------------
ALAMO SALES ACQUISITION CORP., a
Florida corporation
By: /s/ Thomas W. Hawkins
-------------------------------
Name: Thomas W. Hawkins
-----------------------------
Title: SVP
----------------------------
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RISK MANAGEMENT ACQUISITION
CORP., a Cayman Islands company
By: /s/ Thomas W. Hawkins
-------------------------------
Name: Thomas W. Hawkins
-----------------------------
Title: SVP
----------------------------
AFL FLEET ACQUISITION CORP., a
New York corporation
By: /s/ Thomas W. Hawkins
-------------------------------
Name: Thomas W. Hawkins
-----------------------------
Title: SVP
----------------------------
ALAMO LEASING ACQUISITION CORP.,
a Florida corporation
By: /s/ Thomas W. Hawkins
-------------------------------
Name: Thomas W. Hawkins
-----------------------------
Title: SVP
----------------------------
ALAMO AUTOMOBILE ACQUISITION
CORP., a Florida corporation
By: /s/ Thomas W. Hawkins
-------------------------------
Name: Thomas W. Hawkins
-----------------------------
Title: SVP
----------------------------
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ALAMO SHUTTLE ACQUISITION
CORP., a Florida corporation
By: /s/ Thomas W. Hawkins
-------------------------------
Name: Thomas W. Hawkins
-----------------------------
Title: SVP
----------------------------
TOWER RESTAURANTS ACQUISITION
CORP., a Florida corporation
By: /s/ Thomas W. Hawkins
-------------------------------
Name: Thomas W. Hawkins
-----------------------------
Title: SVP
----------------------------
TOWER FOOD ACQUISITION CORP.,
a Florida corporation
By: /s/ Thomas W. Hawkins
-------------------------------
Name: Thomas W. Hawkins
-----------------------------
Title: SVP
----------------------------
CORPORATE PLANNERS ACQUISITION
CORP., a Florida corporation
By: /s/ Thomas W. Hawkins
-------------------------------
Name: Thomas W. Hawkins
-----------------------------
Title: SVP
----------------------------
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ALAMO RENT-A-CAR, INC., a Florida
corporation
By: /s/ D. Keith Cobb
-------------------------------
Name: D. Keith Cobb
-----------------------------
Title: CEO
----------------------------
ALAMO RENT-A-CAR (CANADA), INC.,
a Florida corporation
By: /s/ Roger H. Ballou
-------------------------------
Name: Roger H. Ballou
-----------------------------
Title: President
----------------------------
ALAMO RENT-A-CAR, (BELGIUM) INC.,
a Florida corporation
By: /s/ N. Maria Menendez
-------------------------------
Name: N. Maria Menendez
-----------------------------
Title: Treasurer
----------------------------
TERRITORY BLUE, INC., a Florida
corporation
By: /s/ D. Keith Cobb
-------------------------------
Name: D. Keith Cobb
-----------------------------
Title: CEO
----------------------------
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TOWER ADVERTISING GROUP, INC., a
Florida corporation
By: /s/ Roger H. Ballou
-------------------------------
Name: Roger H. Ballou
-----------------------------
Title: President
----------------------------
GREEN CORN, INC., a Florida
corporation
By: /s/ Michael S. Egan
-------------------------------
Name: Michael S. Egan
-----------------------------
Title: President
----------------------------
GUY SALMON USA, INC., a Florida
corporation
By: /s/ D. Keith Cobb
-------------------------------
Name: D. Keith Cobb
-----------------------------
Title: President
----------------------------
ALASYS, INC., a Florida corporation
By: /s/ N. Maria Menendez
-------------------------------
Name: N. Maria Menendez
-----------------------------
Title: Treasurer
----------------------------
TRIPPEROO WINGS, INC., a Florida
corporation
By: /s/ Michael S. Egan
-------------------------------
Name: Michael S. Egan
-----------------------------
Title: President
----------------------------
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RISING MOON INC., a Florida
corporation
By: /s/ Michael S. Egan
-------------------------------
Name: Michael S. Egan
-----------------------------
Title: President
----------------------------
ALAMO RENT-A-CAR (PUERTO RICO)
INC., a Delaware corporation
By: /s/ Roger H. Ballou
-------------------------------
Name: Roger H. Ballou
-----------------------------
Title: President
----------------------------
ALAMO INTERNATIONAL SALES, INC.,
a Florida corporation
By: /s/ D. Keith Cobb
-------------------------------
Name: D. Keith Cobb
-----------------------------
Title: President
----------------------------
RISK MANAGEMENT REENGINEERING
ASSURANCE GROUP, a Cayman
Islands company
By: /s/ N. Maria Menendez
-------------------------------
Name: N. Maria Menendez
-----------------------------
Title: Vice President
----------------------------
AFL FLEET FUNDING, INC., a
New York corporation
By: /s/ Richard L. Taiano
-------------------------------
Name: Richard L. Taiano
-----------------------------
Title: Vice President
----------------------------
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ALAMO LEASING CORP., a Florida
corporation
By: /s/ D. Keith Cobb
-------------------------------
Name: D. Keith Cobb
-----------------------------
Title: President
----------------------------
ALAMO AUTOMOBILE SALES, INC., a
Florida corporation
By: /s/ D. Keith Cobb
-------------------------------
Name: D. Keith Cobb
-----------------------------
Title: President
----------------------------
ALAMO SHUTTLE, INC., a Florida
corporation
By: /s/ D. Keith Cobb
-------------------------------
Name: D. Keith Cobb
-----------------------------
Title: President
----------------------------
110 TOWER RESTAURANTS, INC., a
Florida corporation
By: /s/ Mary Wood
-------------------------------
Name: Mary Wood
-----------------------------
Title: President
----------------------------
TOWER FOOD & BEVERAGE, INC., a
Florida corporation
By: /s/ Rosalie V. Arthur
-------------------------------
Name: Rosalie V. Arthur
-----------------------------
Title: President
----------------------------
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CORPORATE PLANNERS & DEVELOPERS,
INC., a Florida corporation
By: /s/ Roger H. Ballou
-------------------------------
Name: Roger H. Ballou
-----------------------------
Title: President
----------------------------
ALASYS, LTD., a Florida limited
partnership
By: Alasys, Inc., its General
Partner
By: /s/ N. Maria Menendez
--------------------------
Name: N. Maria Menendez
------------------------
Title: Treasurer
-----------------------
GUY SALMON USA, LTD., a Florida
limited partnership
By: Guy Salmon USA, Inc., its
General Partner
By: /s/ D. Keith Cobb
---------------------------
Name: D. Keith Cobb
-------------------------
Title: President
------------------------
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DKBERT ASSOC., a Florida general
partnership
By: /s/ Michael S. Egan
--------------------------------
Michael S. Egan, General Partner
By: /s/ Norman D. Tripp
--------------------------------
Norman D. Tripp, General Partner
By: /s/ William H. Kelly, Jr.
--------------------------------
William H. Kelly, Jr., General
Partner
RKCTR, a Florida general
partnership
By: /s/ Michael S. Egan
--------------------------------
Name: Michael S. Egan
------------------------------
Title: Trustee - Michael S. Egan
-----------------------------
Living Trust as Partner
/s/ Michael S. Egan
-----------------------------------
MICHAEL S. EGAN
THE MICHAEL S. EGAN LIVING TRUST
By: /s/ Michael S. Egan
--------------------------------
Name: Michael S. Egan
------------------------------
Title: Trustee
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THE MICHAEL S. EGAN GRANTOR
RETAINED ANNUITY TRUST FOR
SARAH EGAN MOONEY
By: /s/ Michael S. Egan
--------------------------------
Name: Michael S. Egan
------------------------------
Title: Trustee
THE MICHAEL S. EGAN GRANTOR
RETAINED ANNUITY TRUST FOR
ELIZA SHENNERS EGAN
By: /s/ Michael S. Egan
--------------------------------
Name: Michael S. Egan
------------------------------
Title: Trustee
THE MICHAEL S. EGAN GRANTOR
RETAINED ANNUITY TRUST FOR
CATHERINE LEWIS EGAN
By: /s/ Michael S. Egan
--------------------------------
Name: Michael S. Egan
------------------------------
Title: Trustee
THE MICHAEL S. EGAN GRANTOR
RETAINED ANNUITY TRUST FOR
TEAGUE MICHAEL THOMAS EGAN
By: /s/ Michael S. Egan
--------------------------------
Name: Michael S. Egan
------------------------------
Title: Trustee
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THE MICHAEL S. EGAN GRANTOR
RETAINED ANNUITY TRUST FOR
RILEY MARTIN MICHAEL EGAN
By: /s/ Michael S. Egan
--------------------------------
Name: Michael S. Egan
------------------------------
Title: Trustee
/s/ Norman D. Tripp
-----------------------------------
NORMAN D. TRIPP
/s/ William H. Kelly, Jr.
-----------------------------------
WILLIAM H. KELLY, JR.
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THE 110 GROUP TRUST
By: /s/ Rosalie V. Arthur
--------------------------------
Name: Rosalie V. Arthur
Title: Trustee
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