AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger, dated as of June 12, 2002 (the
"Effective Date"), is entered into by and among CRD Acquisition, Inc., a Nevada
corporation ("CAI"), Gump & Company, Inc., a Delaware corporation and the parent
corporation of CAI ("Holdings"), the shareholders of Holdings listed on the
signature page hereto (each, a "Shareholder", and collectively, the
"Shareholders"), Car Rental Direct, Inc., a Nevada corporation (the "Company"),
and MAII Holdings, Inc., a Texas corporation and the parent corporation of the
Company ("MAII").
RECITALS
WHEREAS, the board of directors of the CAI, Holdings, the Company and
MAII have adopted this Agreement and Plan of Merger, providing for the merger of
CAI with and into the Company (the "Merger") under the Nevada Revised Statutes
(the "NRS") in accordance with the provisions of this Agreement and have
recommended the Merger to their respective shareholders for approval;
WHEREAS, the parties intend for the Merger to qualify as a
reorganization within the meaning of Section 368(a) of the Code (as defined
below).
ARTICLE I
DEFINITIONS
As used in this Agreement:
"MAII" is defined in the preamble to this Agreement.
"Company Stock" means the common stock, $0.01 par value per share, of
the Company.
"CAI" is defined in the preamble to this Agreement.
"Agreement" means this agreement, as it may be amended or modified and
in effect from time to time.
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Closing" is defined in Section 5.1.
"Closing Date" is defined in Section 5.1.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Company" is defined in the preamble to this Agreement.
"Constituent Companies" means the Company and CAI.
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"Effective Date" is defined in the preamble to this Agreement.
"Effective Time" means the time at which the Articles of Merger are
filed with the Secretary of State of the State of Nevada, in accordance with the
NRS.
"Exchange Act" means the Securities and Exchange Act of 1934, as
amended from time to time, and any rule and regulation issued thereunder.
"Excluded Taxes" means, with respect to a Person, taxes duties, levies,
imports, deductions, charges or withholdings imposed on its overall net income,
and franchise, privilege and similar taxes imposed on it, by (a) the
jurisdiction under the laws of which such Person is incorporated or organized or
resides, (b) the jurisdiction in which such Person's principal executive office
is located, or (c) any other jurisdiction in which such Person is doing business
or has been subject to tax.
"Exhibit" refers to an exhibit to this Agreement, unless another
document is specifically referenced.
"GAAP" means generally accepted accounting principles as in effect from
time to time, applied in a consistent manner.
"Holdings Common Stock" means shares of Holdings' common stock, $0.01
par value.
"Holdings Latest Balance Sheet" is defined in Section 4.5(c).
"Holdings SEC Documents" is defined in Section 4.5(a).
"Indebtedness" of a Person means such Person's (a) obligations for
borrowed money, (b) obligations representing the deferred purchase price of
Property or services (other than accounts payable arising in the ordinary course
of such Person's business payable on terms customary in the trade), (c)
obligations, whether or not assumed, secured by Liens or payable out of the
proceeds or production from Property now or hereafter owned or acquired by such
Person, (d) obligations which are evidenced by notes, acceptances, or other
instruments, (e) obligations of such Person to purchase securities or other
Property arising out of or in connection with the sale of the same or
substantially similar securities or Property, (f) capitalized lease obligations
and (g) any other obligation for borrowed money or other financial accommodation
which in accordance with GAAP would be shown as a liability on the consolidated
balance sheet of such Person.
"Investment" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees made in the
ordinary course of business), extension of credit (other than accounts
receivable arising in the ordinary course of business on terms customary in the
trade) or contribution of capital by such Person; stocks, bonds, mutual funds,
partnership interests, notes, debentures or other securities owned by such
Person; any deposit accounts and certificate of deposit owned by such Person;
and structured notes, derivative financial instruments and other similar
instruments or contracts owned by such Person.
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"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, capitalized lease or other title retention
agreement).
"Material Adverse Effect" means, with respect to a Person, a material
adverse effect on (i) the business, Property, condition (financial or
otherwise), or results of operations of the Person taken as a whole, (ii) the
ability of the Person to perform its obligations under this Agreement, or (iii)
the validity or enforceability of this Agreement or the rights or remedies of
hereunder.
"Merger" is defined in the Recitals to this Agreement.
"Permitted Liens" means those Liens described in Section 6.1(h).
"Person" means any natural person, corporation, firm, joint venture,
partnership, limited liability company, association, enterprise, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets owned,
leased or operated by such Person.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, and any rule and regulation issued thereunder.
"Schedule" refers to a specific schedule to this Agreement, unless
another document is specifically referenced.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Subsidiary" of a Person means (a) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(b) any partnership, limited liability company, association, joint venture or
similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled.
Unless otherwise expressly provided, all references herein to a "Subsidiary"
shall mean a Subsidiary of the Company.
"Substantial Portion" means, with respect to the Property of the
Company, Property which (a) represents more than 10% of the consolidated assets
of the Company as would be shown in the consolidated financial statements of the
Company as at the beginning of the twelve-month period ending with the month in
which such determination is made, or (b) is responsible for more than 10% of the
consolidated net sales or of the consolidated net income of the Company as
reflected in the financial statements referred to in clause (a) above.
"Surviving Corporation" is defined in Section 2.1.
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"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and any and all liabilities with
respect to the foregoing, but excluding Excluded Taxes.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
ARTICLE II
THE MERGER
2.1 The Merger. Subject to the terms and conditions of this Agreement
and on the basis of the representations and warranties set forth herein, at the
Effective Time, CAI will be merged with and into the Company in accordance with
this Agreement, and the separate existence of CAI shall cease, and the Company
shall continue as the surviving corporation. The Company as it exists from and
after the Effective Time, is sometimes referred to hereinafter as the "Surviving
Corporation."
2.2 Effect of the Merger. Upon the effectiveness of the Merger, the
Surviving Corporation shall possess all the rights, privileges, immunities and
franchises, as well of a public as of a private nature, and be subject to all
the restrictions, disabilities and duties, of each of the Constituent Companies;
and all property, real, personal and mixed, and all debts due to any of the
Constituent Companies on whatever account, including subscriptions to shares,
and all other things in action and all and every other interest, of or belonging
to each of the Constituent Companies, shall be vested in the Surviving
Corporation without further act or deed and without any transfer or assignment
having occurred; and all property, rights, privileges, immunities and
franchises, and all and every other interest shall be thereafter as effectually
the property of the Surviving Corporation as they were of the Constituent
Companies, and the title to any real estate vested by deed or otherwise in
either of the Constituent Companies shall not revert or be in any way impaired
by reason of the Merger; but all rights of creditors and all liens upon any
property of either of the Constituent Companies shall be preserved unimpaired,
and all debts, liabilities and duties of the Constituent Companies shall
thenceforth attach to the Surviving Corporation, and may be enforced against it
to the same extent as if said debts, liabilities and duties had been incurred or
contracted by it; and all other effects of the Merger specified in the NRS shall
result therefrom.
2.3 Consummation of the Merger. As soon as practicable after the
satisfaction or waiver of the conditions to this Agreement, the parties hereto
will cause the Merger to be consummated by filing with the appropriate agency of
the State of Nevada properly executed Articles of Merger, substantially in the
form attached as Exhibit I, incorporating, to the extent required by the laws of
the State of Nevada, this Agreement.
2.4 Articles of Incorporation; Bylaws; Directors and Officers. The
Articles of Incorporation of Surviving Corporation from and after the Effective
Time shall be the Articles of Incorporation of the Company until thereafter
amended in accordance with the provisions therein and as provided by the NRS.
The Bylaws of the Surviving Corporation from and after the Effective Time shall
be the Bylaws of the Company as in effect immediately prior to the Effective
Time, continuing until thereafter amended in accordance with their terms and the
Articles of Incorporation of the Surviving Corporation and as provided by the
NRS. The directors of the Surviving Corporation shall be: Christie S. Tyler,
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Richard F. Dahlson, Thomas A. Montgomery and Brodie Cobb, until their successors
are duly elected and qualified, and the officers of the Surviving Corporation
shall be the officers of the Company holding such positions immediately prior to
the Effective Time until their respective successors are duly appointed and
qualified.
2.5 Conversion of Securities. At the Effective Time, by virtue of the
Merger and without any action on the part of the Company, CAI or any holder of
any shares of capital stock of CAI:
(a) Each share of Company Stock that is held in the treasury of the
Company or of any of its subsidiaries shall be canceled and retired and no
capital stock of the Surviving Corporation or Holdings, cash or other
consideration shall be paid or delivered in exchange therefore.
(b) Each outstanding share of CAI Stock shall be converted into one (1)
share of common stock of the Surviving Corporation.
(c) Each remaining outstanding share of the Company Stock shall be
converted into the right to receive a proportionate share of an aggregate of
8,250,000 shares of duly authorized, validly issued, fully paid and
non-assessable shares of Holdings Common Stock, without interest (the "Merger
Price").
2.6 Merger Payment Procedure. As soon as practicable after the
Effective Time, the Surviving Corporation will distribute to holders of record
of the Company Stock so converted, upon surrender to the Surviving Corporation
of one or more certificates for such shares of the Company Stock for
cancellation, a certificate representing the proportionate share of Holdings
Common Stock due as a result of the Merger. In no event shall the holder of any
surrendered certificates for shares of the Company Stock be entitled to receive
interest on account of any shares of Holdings Common Stock due as a result of
the Merger.
2.7 Closing of the Company Transfer Books. At the Effective Time, the
stock transfer books of the Company shall be closed and no transfer of shares of
Company Stock shall thereafter be made.
2.8 Reorganization under Section 368(a) of the Code. The parties intend
that the Merger will qualify as a tax-free reorganization under Section 368(a)
of the Code and this Agreement are to be interpreted to that effect. Each party
agrees to render to the other parties reasonable assistance to preserve that tax
treatment,, however, no representation is made by any party hereto as to whether
the transactions contemplated hereby will so qualify.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
MAII and the Company, jointly and severally, represent and warrant to
Holdings that the statements contained in this Article III are true and correct,
except as set forth in the Schedules delivered by the Company to Holdings
concurrently herewith and which are attached hereto.
3.1 Organization. The Company is a corporation, duly organized, validly
existing and in good standing under the laws of the State of Nevada. The Company
(a) is qualified or licensed in all jurisdictions where such qualification or
license is required to own and operate its properties and conduct its business
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in the manner and at the places presently conducted; (b) holds all franchises,
grants, licenses, certificates, permits, consents and orders, all of which are
valid and in full force and effect, from all applicable United States and
foreign regulatory authorities necessary to own and operate its properties and
to conduct its business in the manner and at the places presently conducted; and
(c) has full power and authority (corporate and other) to own, lease and operate
its respective properties and assets and to carry on its business as presently
conducted and as proposed to be conducted, except, in each case, where the
failure to be so qualified or licensed or to hold such franchises, grants,
licenses, certificates, permits, consents and orders or to have such power and
authority would not, when taken together with all other such failures,
reasonably be expected to have a Material Adverse Effect with respect to the
Company, as the case may be. Except for Ajax Rent-A-Car, Inc., a California
corporation which is wholly-owned by the Company, the Company does not directly
or indirectly own any equity or similar interest in, or any interest convertible
into or exchangeable or exercisable for, any equity or similar interest in, any
corporation, partnership, joint venture or other business association or entity.
3.2 Capital Structure.
(a) As of the Effective Date, the authorized capital stock of the
Company consists of 1,000 shares of Company Stock, and no shares of preferred
stock. MAII owns one hundred percent (100%) of the Company Stock. There are no
bonds, debentures, notes or other indebtedness having voting rights (or
convertible or exchangeable into securities having such rights) ("Company Voting
Debt") of the Company issued and outstanding. There are no existing (i) options,
warrants, calls, preemptive rights, subscriptions or other rights, convertible
or exchangeable securities, agreements, arrangements or commitments of any
character, relating to the issued or unissued equity or membership interests of
the Company, obligating the Company to issue, transfer or sell or cause to be
issued, transferred or sold any equity or membership interest or Company Voting
Debt of, or other equity or membership interest in, the Company, as the case may
be, (ii) securities convertible into or exchangeable for such equity or
membership interests, or (iii) obligations of the Company to grant, extend or
enter into any such option, warrant, call, preemptive right, subscription or
other right, convertible security, agreement, arrangement or commitment.
(b) There are no voting trusts, proxies or other agreements or
understandings to which the Company is a party with respect to the voting of the
equity interest of the Company. Except as necessary to consummate the
transactions contemplated herein, the Company is not a party to any agreement or
obligation, contingent or otherwise, to redeem, repurchase or otherwise acquire
or retire any equity or membership interests of the Company, whether as a result
of the transactions contemplated by this Agreement or otherwise.
(c) Since the Company was acquired by MAII on August 23, 2001 (the
"Acquisition Date"), the Company has not (i) made or agreed to make any split of
its equity or dividend, or issued or permitted to be issued any equity
interests, or securities exercisable for or convertible into equity, of the
Company, (ii), repurchased, redeemed or otherwise acquired any equity of the
Company, or (iii) declared, set aside, made or paid any dividends or other
distributions on the outstanding equity of the Company.
3.3 Authorization and Validity. MAII and the Company each have the
corporate power and authority and legal right to execute and deliver this
Agreement and to perform their respective obligations hereunder. The execution
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and delivery by each of MAII and the Company of this Agreement and the
performance of their respective obligations hereunder have been duly authorized
by proper corporate or other proceedings, and this Agreement constitutes the
legal, valid and binding obligation of MAII and the Company enforceable against
each in accordance with their terms, except as enforceability may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally.
3.4 No Conflict; Consent. Neither the execution and delivery by MAII
and the Company of this Agreement, nor the consummation of the transactions
therein contemplated, nor compliance with the provisions thereof will violate
(a) any law, rule, regulation, order, writ, judgment, injunction, decree or
award binding on MAII or the Company, or (b) MAII's or the Company's articles or
certificate of incorporation, or bylaws, or (c) the provisions of any indenture,
instrument or agreement to which MAII or the Company is a party or is subject,
or by which it, or their respective Property, is bound, or conflict with or
constitute a default thereunder, or result in, or require, the creation or
imposition of any Lien in, of or on the Property of MAII or the Company pursuant
to the terms of any such indenture, instrument or agreement. No order, consent,
adjudication, approval, license, authorization, or validation of, or filing,
recording or registration with, or exemption by, or other action in respect of
any governmental or public body or authority, or any subdivision thereof, which
has not been obtained by MAII or the Company is required to be obtained by MAII
or the Company in connection with the execution and delivery of this Agreement,
or the legality, validity, binding effect or enforceability of any of this
Agreement. No consent, approval or authorization of, or notice to, any other
person or entity, including, without limitation, parties to loans, contracts,
leases or other agreements, is required in connection with the execution,
delivery and performance of this Agreement by MAII or the Company or the
consummation by it of the transactions contemplated hereby.
3.5 Company Information. The Company is a wholly-owned subsidiary of
MAII, which is a reporting company under the Exchange Act. MAII has included in
its Exchange Act filings all material information regarding the Company required
to be disclosed therein by the Exchange Act; it being acknowledged that MAII's
Exchange Act filings are consolidated and contain assets and liabilities of both
MAII and the Company. The Company has, however, delivered to Holdings the
Company's unaudited financial statements for the one-year period ended December
31, 2001 and for the three-month period ended March 31, 2002 (the "Company
Financial Statements"). The Company Financial Statements have been prepared on a
consistent basis during the relevant periods, and present fairly the financial
position and results of operations and changes in cash flows of the Company as
of the respective dates or for the respective periods reflected therein.
3.6 Material Adverse Change. Since March 31, 2002 there has been no
change in the business, property, condition (financial or otherwise) or results
of operations of the Company which could reasonably be expected to have a
Material Adverse Effect with respect to the Company, as the case may be.
3.7 Taxes. The Company has filed all United States federal tax returns
and all other tax returns which are required to be filed and have paid all taxes
due pursuant to said returns or pursuant to any assessment received by the
Company, except such taxes, if any, as are being contested in good faith and as
to which adequate reserves have been provided on the Company Financial
Statements and as to which no Lien exists. No tax liens have been filed and no
claims are being asserted with respect to any such taxes. The charges, accruals
and reserves on the books of the Company in respect of any taxes or other
governmental charges are adequate.
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3.8 Litigation. There is no litigation, arbitration, governmental
investigation, proceeding or inquiry pending or, to the best knowledge of any of
its officers, threatened against or affecting the Company which could reasonably
be expected to have a Material Adverse Effect with respect to the Company, as
the case may be.
3.9 Compliance With Laws. The Company has complied with all applicable
statutes, rules, regulations, orders and restrictions of any domestic or foreign
government or any instrumentality or agency thereof having jurisdiction over the
conduct of their respective businesses or the ownership of their respective
Property except for any failure to comply with any of the foregoing which could
not reasonably be expected to have a Material Adverse Effect with respect to the
Company.
3.10 Information Furnished to MAII. MAII have been provided with, and
are familiar with, the financial and other information regarding the business
and operations of Holdings, including, but not limited to, the Holdings SEC
Documents that MAII deems necessary for evaluating the merits and risks of the
transactions contemplated by this Agreement. MAII is knowledgeable and
experienced in financial and business matters and is capable of evaluating the
merits and risks of the transactions contemplated by this Agreement.
3.11 Investment Purposes. MAII is acquiring the Holdings Common Stock
for investment purposes and not with a view toward resale or distribution
thereof, and has no present intention of selling, granting any participation in,
or otherwise distributing the Holdings Common Stock.
3.12 Restricted Securities. MAII understands that the shares of
Holdings Common Stock will be issued by Holdings pursuant to an exemption from
the registration requirements of the Securities Act , and are characterized as
"restricted securities" under the Securities Act and may be resold without
registration under the Securities Act only in limited circumstances. In
connection with the foregoing, MAII is familiar with Rule 144 and understand the
resale limitations imposed thereby on the Common Stock.
3.13 Broker's or Finder's Commissions. No broker's or finder's or
placement fee or commission will be payable to any broker or agent engaged by
MAII, the Company or any of its officers, directors or agents with respect to
the transactions contemplated by this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
The Shareholders, jointly and severally, represent and warrant to MAII
and the Company that the statements contained in the Article IV are true and
correct, except as set forth in the Schedules delivered by the Shareholders to
MAII concurrently herewith.
4.1 Organization. Each of CAI and Holdings is a corporation, duly
organized, validly existing and in good standing under the laws of their
respective states of incorporation. Each of CAI and Holdings (a) is qualified or
licensed in all jurisdictions where such qualification or license is required to
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own and operate its properties and conduct its business in the manner and at the
places presently conducted; (b) holds all franchises, grants, licenses,
certificates, permits, consents and orders, all of which are valid and in full
force and effect, from all applicable United States and foreign regulatory
authorities necessary to own and operate its properties and to conduct its
business in the manner and at the places presently conducted; and (b) has full
power and authority (corporate and other) to own, lease and operate its
respective properties and assets and to carry on its business as presently
conducted and as proposed to be conducted, except, in each case, where the
failure to be so qualified or licensed or to hold such franchises, grants,
licenses, certificates, permits, consents and orders or to have such power and
authority would not, when taken together with all other such failures,
reasonably be expected to have a Material Adverse Effect with respect to CAI or
Holdings, as the case may be. Except for Holdings' ownership of the equity
interest in CAI or as otherwise as contemplated herein, neither CAI nor Holdings
directly or indirectly own any equity or similar interest in, or any interest
convertible into or exchangeable or exercisable for, any equity or similar
interest in, any corporation, partnership, joint venture or other business
association or entity.
4.2 Capital Structure.
(a) As of the Effective Date, the authorized capital stock of Holdings
consists of 20,000,000 shares of Holdings Common Stock, and 2,000,000 shares of
preferred stock. As of the Effective Date, (i) 2,633,201 shares of Holdings
Common Stock and no shares of preferred stock were issued and outstanding, (ii)
no options or warrants for shares of Holdings Common Stock were issued and
outstanding; and (iii) no shares of Holdings Common Stock were held in the
treasury of the Company. All the outstanding shares of Holdings Common Stock are
duly authorized, validly issued, fully paid and non-assessable. As of the
Effective Date, CAI has 1,000 authorized and issued shares of common stock, par
value $0.01 per share, all of which shares are owned by Holdings. There are no
bonds, debentures, notes or other indebtedness having voting rights (or
convertible or exchangeable into securities having such rights) ("Voting Debt")
of Holdings or CAI issued and outstanding. Except as set forth above, there are
no equity interests of Holdings or CAI authorized, issued or outstanding and
there are no existing (i) options, warrants, calls, preemptive rights,
subscriptions or other rights, convertible or exchangeable securities,
agreements, arrangements or commitments of any character, relating to the issued
or unissued equity interests of Holdings or CAI, obligating Holdings or CAI to
issue, transfer or sell or cause to be issued, transferred or sold any equity
interest or Voting Debt of, or other equity interest in, Holdings or CAI, (ii)
securities convertible into or exchangeable for such equity interests or (iii)
obligations of Holdings or CAI to grant, extend or enter into any such option,
warrant, call, preemptive right, subscription or other right, convertible
security, agreement, arrangement or commitment. Holdings has not granted to any
Person any rights to have any securities registered under the Securities Act.
(b) There are no voting trusts, proxies, shareholders agreements or
other agreements or understandings to which Holdings is a party with respect to
the voting or transfer of the equity interests or capital stock of Holdings.
Holdings is not a party to any agreement or obligation, contingent or otherwise,
to redeem, repurchase or otherwise acquire or retire any equity interests of
Holdings, whether as a result of the transactions contemplated by this Agreement
or otherwise.
(c) Holdings has not (a) made or agreed to make any split of its equity
interests or dividend, or issued or permitted to be issued any equity interests,
or securities exercisable for or convertible into equity interests, of Holdings,
(b), repurchased, redeemed or otherwise acquired any equity or membership
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interests of Holdings, or (c) declared, set aside, made or paid any dividends or
other distributions on the outstanding equity interests of Holdings.
(d) The Company does not own any equity interest in any corporation,
partnership or other business entity, except CAI.
4.3 Authorization and Validity. Each of CAI and Holdings has the
corporate power and authority and legal right to execute and deliver this
Agreement and to perform its obligations hereunder. The execution and delivery
by each of CAI and Holdings of this Agreement and the performance of their
respective obligations hereunder have been duly authorized by proper corporate
and other proceedings, and this Agreement constitutes the legal, valid and
binding obligation of each of CAI and Holdings enforceable against it in
accordance with their terms, except as enforceability may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally.
4.4 No Conflict; Government Consent. Neither the execution and delivery
by CAI and Holdings of this Agreement, nor the consummation of the transactions
therein contemplated, nor compliance with the provisions thereof will violate
(a) any law, rule, regulation, order, writ, judgment, injunction, decree or
award binding on CAI or Holdings, or (b) CAI or Holdings' articles or
certificate of incorporation or bylaws, or (c) the provisions of any indenture,
instrument or agreement to which either CAI or Holdings is a party or is
subject, or by which it, or its Property, is bound, or conflict with or
constitute a default thereunder, or result in, or require, the creation or
imposition of any Lien in, of or on the Property of CAI or Holdings pursuant to
the terms of any such indenture, instrument or agreement. No order, consent,
adjudication, approval, license, authorization, or validation of, or filing,
recording or registration with, or exemption by, or other action in respect of
any governmental or public body or authority, or any subdivision thereof, which
has not been obtained by CAI or Holdings is required to be obtained by CAI or
Holdings in connection with the execution and delivery of this Agreement, or the
legality, validity, binding effect or enforceability of any of this Agreement.
No consent, approval or authorization of, or notice to, any other person or
entity, including, without limitation, parties to loans, contracts, leases or
other agreements, is required in connection with the execution, delivery and
performance of this Agreement by CAI or Holdings or the consummation by it of
the transactions contemplated hereby.
4.5 Holdings Financial Statements.
(a) Holdings has filed all forms, reports, statements, schedules,
registration statements and other documents required to be filed with the SEC
since July 3, 2000 (the "Holdings SEC Documents"), each of which complied in all
material respects with the applicable requirements of the Securities Act, and
the rules and regulations promulgated thereunder, or the Exchange Act and the
rules and regulations promulgated thereunder, each as in effect on the date so
filed. No Subsidiary of Holdings is required to file any form, report,
statement, schedule, registration statement or other document with the SEC. No
Holdings SEC Document, when filed (or, if amended or superseded by a filing
prior to the Closing Date, on the date of such filing) contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
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(b) Each of the audited and unaudited consolidated financial statements
of Holdings (including any related notes thereto) included in the Holdings SEC
Documents have been prepared in accordance with GAAP, applied on a consistent
basis during the relevant periods (except as may be disclosed in the notes
thereto), and present fairly the consolidated financial position and
consolidated results of operations and changes in cash flows of Holdings and its
Subsidiaries as of the respective dates or for the respective periods reflected
therein, except, in the case of the unaudited interim financial statements, for
normal and recurring year-end adjustments that are not material.
(c) Except as set forth on the consolidated balance sheet of Holdings
and its Subsidiaries as of March 31, 2002 included in the Holdings SEC Documents
(the "Holdings Latest Balance Sheet"), or in the notes thereto, neither Holdings
nor any of its Subsidiaries has any liabilities, debts, claims or obligations of
any nature (whether accrued, absolute, direct or indirect, contingent or
otherwise, whether due or to become due), and there is no existing condition or
set of circumstances which would reasonably be expected, individually or in the
aggregate, to result in such a liability.
(d) As of the date hereof, Holdings has no assets or liabilities
(contingent or otherwise).
4.6 Material Adverse Change. Since March 31, 2002, there has been no
change in the business, property, condition (financial or otherwise) or results
of operations of Holdings which could reasonably be expected to have a Material
Adverse Effect with respect to Holdings.
4.7 Taxes. Holdings has filed all United States federal tax returns and
all other tax returns which are required to be filed and have paid all taxes due
pursuant to said returns or pursuant to any assessment received by Holdings,
except such taxes, if any, as are being contested in good faith and as to which
adequate reserves have been provided on the Holdings Latest Balance Sheet and as
to which no Lien exists. No tax liens have been filed and no claims are being
asserted with respect to any such taxes. The charges, accruals and reserves on
the books of Holdings in respect of any taxes or other governmental charges are
adequate. Holdings is taxable as a "C" corporation for federal income tax
purposes.
4.8 Litigation and Contingent Obligations. Except for an SEC action
against Disalvo, a settlement of which has been approved by the SEC's San
Francisco branch office, there is no litigation, arbitration, governmental
investigation, proceeding or inquiry pending or, to best knowledge of any of its
officers, threatened against or affecting Holdings. Holdings has no contingent
obligations not provided for or disclosed in the Holdings Latest Balance Sheet.
4.9 Agreements. Except for the Agreement Appointing Securities Transfer
Corporation as Transfer Agent and Registrar, dated May 30, 2000, Holdings is not
a party to any agreement, contract, lease, license or other instrument. The
Shareholders and Holdings agree that each of the Consulting Agreements and/or
Services Agreement between any Shareholder and Holdings are hereby terminated,
with no further force or effect.
4.10 Compliance With Laws. Holdings has complied with all applicable
statutes, rules, regulations, orders and restrictions of any domestic or foreign
11
government or any instrumentality or agency thereof having jurisdiction over the
conduct of their respective businesses or the ownership of their respective
Property except for any failure to comply with any of the foregoing which could
not reasonably be expected to have a Material Adverse Effect with respect to
Holdings.
4.11 Operations. Neither Holdings nor CAI has ever had any operations.
4.12 Issuance of Holdings Common Stock. The shares of Holdings Common
Stock to be delivered to MAII hereunder have been duly and validly authorized
and when issued in accordance with this Agreement, will be duly and validly
issued, fully paid and nonassessable and will not have been issued in violation
of any statutory preemptive rights, or any other preemptive right, co-sale
right, right of first refusal or other similar right.
4.13 Information Furnished to CAI and Holdings. CAI and Holdings have
been provided with, and are familiar with, the financial and other information
regarding the business and operations of the Company, including, but not limited
to, the Company Financial Statements, that CAI and Holdings deem necessary for
evaluating the merits and risks of the transactions contemplated by this
Agreement. CAI and Holdings are knowledgeable and experienced in financial and
business matters and is capable of evaluating the merits and risks of the
transactions contemplated by this Agreement.
4.14 Broker's or Finder's Commissions. No broker's or finder's or
placement fee or commission will be payable to any broker or agent engaged by
CAI or Holdings or any of its officers, directors or agents with respect to the
transactions contemplated by this Agreement. Holdings agrees to indemnify MAII
and the Company and hold them harmless from and against any claim, demand or
liability for broker's or finder's or placement fees or similar commissions,
whether or not payable by CAI or Holdings, alleged to have been incurred in
connection with such transactions as a result of CAI's or Holdings' actions or
inactions, other than any broker's or finder's fees payable to Persons engaged
by MAII and the Company.
ARTICLE V
CLOSING
5.1 Closing. The closing of the transactions contemplated under this
Agreement (the "Closing") shall take place at the offices of Jackson Walker
L.L.P., 2435 N. Central Expressway, Suite 600, Richardson, Texas, 75080 on or
before June 14, 2002, or such other date as mutually agreed to by the parties
(the "Closing Date")
5.2 CAI and Holdings Conditions. The obligation of CAI and Holdings to
consummate the transactions contemplated under this Agreement is subject to the
satisfaction, prior to or at the Closing, of the following conditions:
(a) Representations and Warranties True. The representations and
warranties of MAII and the Company contained in Article III shall be true and
correct in all material respects and the covenants and agreements set forth in
Section 6.1 shall have been complied with at and as of the Closing Date as
though then made, except to the extent of changes caused by the transactions
expressly contemplated herein.
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(b) Consents. CAI and Holdings shall have received any approvals and
consents required under its loan agreements, leases, and indentures,
shareholders agreements or other debt documents or contracts necessary to
consummate the transactions contemplated herein, including without limitation,
those set forth on Schedule 4.4.
(c) No Injunctions. There shall be no effective injunction, writ,
preliminary restraining order or any order of any nature issued by a court of
competent jurisdiction prohibiting or imposing any condition on the consummation
of any of the transactions contemplated hereby.
5.3 MAII and the Company Conditions. The obligation of MAII and the
Company to consummate the transactions contemplated under this Agreement is
subject to the satisfaction, prior to or at the Closing, of the following
conditions:
(a) Representations and Warranties True. The representations and
warranties of CAI and Holdings contained in Article IV hereof shall be true and
correct in all material respects and the covenants and agreements set forth in
Section 6.2 shall have been complied with at and as of the Closing Date as
though then made, except to the extent of changes caused by the transactions
expressly contemplated herein.
(b) Consents. MAII and the Company shall have received any approvals
and consents required under their respective loan agreements, leases, and
indentures, shareholders agreements or other debt documents or contracts
necessary to consummate the transactions contemplated herein, including, without
limitation, those set forth on Schedule 3.4.
(c) Reorganization Agreement. Holdings and certain stockholders of
Holdings shall have executed and delivered the Reorganization Agreement, a copy
of which has been attached hereto as Exhibit II, and the transactions
contemplated in such Reorganization Agreement shall have been completed.
(d) No Injunctions. There shall be no effective injunction, writ,
preliminary restraining order or any order of any nature issued by a court of
competent jurisdiction prohibiting or imposing any condition on the consummation
of any of the transactions contemplated hereby.
5.4 Closing Deliverables.
(a) At the Closing, MAII and the Company will have delivered or caused
to be delivered to Holdings all of the following in form and substance
satisfactory to Holdings:
(i) a certificate of the secretary or assistant secretary
of the Company, certifying (A) as to the names and
true signatures of the officers of the Company
authorized to sign this Agreement and the other
documents to be delivered by the Company hereunder,
(B) that a true, correct and complete copy of the
articles of organization of the Company is attached,
and (C) that a true, correct and complete copy of the
bylaws of the Company is attached;
(ii) a certificate of the secretary or assistant secretary
of MAII, certifying (A) as to the names and true
signatures of the officers of MAII authorized to sign
this Agreement and the other documents to be
delivered by MAII hereunder, (B) that a true, correct
and complete copy of the articles of incorporation of
MAII is attached, and (C) that a true, correct and
complete copy of the bylaws of MAII is attached;
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(iii) copies of the resolutions unanimously and duly
adopted by MAII's and the Company's boards of
directors, authorizing the execution, delivery and
performance by MAII and the Company of this
Agreement, and the consummation of all of the other
transactions hereunder and thereunder, certified as
of the Closing Date by the secretary or assistant
secretary of MAII and the Company, as applicable;
(iv) a certificate dated as of the Closing Date from an
officer of each of MAII and the Company stating that
the conditions specified in Section 5.3 have been
fully satisfied or waived by Holdings;
(v) a certificate of good standing and existence form the
Secretaries of State of the State of Delaware and
Nevada, each of a recent date, with respect to MAII
and the Company; as applicable.
(b) At the Closing, Holdings will have delivered or caused to be
delivered to MAII of the following in form and substance satisfactory to MAII:
(i) a certificate of the secretary or assistant secretary
of Holdings, certifying (A) as to the names and true
signatures of the officers of Holdings authorized to
sign this Agreement and the other documents to be
delivered by Holdings hereunder, (B) that a true,
correct and complete copy of the articles of
incorporation of Holdings is attached, and (C) that a
true, correct and complete copy of the bylaws of
Holdings is attached;
(ii) copies of the resolutions unanimously and duly
adopted by Holdings' and CAI's boards of directors
authorizing the execution, delivery and performance
by Holdings of this Agreement, and the consummation
of all of the other transactions hereunder and
thereunder, certified as of the Closing Date by the
secretary or assistant secretary of Holdings;
(iii) a certificate dated as of the Closing Date from an
officer of each of CAI and Holdings stating that the
conditions specified in section 5.2 have been fully
satisfied or waived by MAII and the Company;
(iv) a certificate representing 8,250,000 shares of
Holdings Common Stock; and
(v) a certificate of existence and good standing from the
Secretaries of State of the States of Delaware and
Nevada, each of a recent date, with respect to
Holdings and CAI, as applicable.
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ARTICLE VI
OTHER AGREEMENTS
6.1 Covenants of MAII and the Company. After the Effective Date and
until the earlier of (a) the Closing Date or (b) the expiration or termination
of this Agreement, unless Holdings shall otherwise consent in writing:
(a) Conduct of Business. The Company will carry on and conduct its
businesses in substantially the same manner and in substantially the same fields
of enterprise as it is presently conducted and do all things necessary to remain
duly organized, validly existing and in good standing in its jurisdiction of
organization and maintain all requisite authority to conduct its business in
each jurisdiction in which its business is conducted. Without limiting the
generality of the foregoing, the Company will not: (i) take any action to change
the board of directors or executive management; (ii) declare, pay or set aside
for payment any dividend or other distribution payable in cash, stock, property
or otherwise in respect of its equity ownership; or directly or indirectly
redeem, purchase, repurchase (except as required to consummate the transactions
contemplated herein) or otherwise acquire any Company Stock or any securities or
obligations convertible into or exchangeable for any of its Company Stock, as
the case may be; or (iii) enter into any new lines of business or otherwise make
material changes to the operation of its business;
(b) Taxes. The Company will timely file complete and correct United
States federal and applicable foreign, state and local tax returns required by
law and pay when due all taxes, assessments and governmental charges and levies
upon it or its income, profits or Property, except those which are being
contested in good faith by appropriate proceedings and with respect to which
adequate reserves have been set aside on the Company's Financial Statements.
(c) Compliance with Laws. The Company will comply with all laws, rules,
regulations, orders, writs, judgments, injunctions, decrees or awards to which
it may be subject.
(d) Merger. Except as contemplated by this Agreement, neither MAII nor
the Company will permit MAII or the Company, as the case may be, to, merge or
consolidate with or into any other Person.
(e) Dilution of Ownership. The Company will not consent to or approve
of the issuance of (a) any additional equity securities, (b) any instrument
convertible voluntarily by the Company, as the case may be, or automatically
upon the occurrence or non-occurrence of any event or condition into, or
exchangeable for, any such securities, or (c) any warrants, options, contracts
or other commitments entitling any third party to purchase or otherwise acquire
any such securities.
6.2 Covenants of Holdings. After the Effective Date and until the
earlier of (a) the Closing Date, or (b) the expiration or termination of this
Agreement, unless MAII and the Company shall otherwise consent in writing;
(a) Conduct of Business. Holdings will carry on and conduct its
business in substantially the same fields of enterprise as it is presently
conducted and do all things necessary to remain duly incorporated or organized,
validly existing and in good standing in its jurisdiction of incorporation or
organization and maintain all requisite authority to conduct its business in
each jurisdiction in which its business is conducted. Without limiting the
15
generality of the foregoing, the Holdings will not: (i) take any action to
change the board of directors or executive management; (ii) declare, pay or set
aside for payment any dividend or other distribution payable in cash, stock,
property or otherwise in respect of its equity ownership; or directly or
indirectly redeem, purchase, repurchase (except as required to consummate the
transactions contemplated herein) or otherwise acquire any Holdings Common Stock
or any securities or obligations convertible into or exchangeable for any of its
Holdings Common Stock, as the case may be; (iii)(A) incur or assume any debt or
issue any debt securities, except under its existing lines of credit, but not
exceeding the current credit limit under such lines of credit, (B) assume,
guarantee, endorse or otherwise become liable or responsible (whether directly,
contingently or otherwise) for the obligations of any other person, (C) make any
loans or advances to any person, other than with respect to extensions of credit
to their respective customers in the ordinary course of business consistent with
past practice, or (D) mortgage or pledge any of its assets, tangible or
intangible, or create any material Lien thereupon; (iv) enter into any new lines
of business or otherwise make material changes to the operation of its business;
or (v) take any action or agree, in writing or otherwise, to take any of the
foregoing actions or any action which would make any representation or warranty
in Article IV hereof materially untrue or incorrect. CAI will not conduct any
business of any kind whatsoever.
(b) Taxes. Holdings will timely file complete and correct United States
federal and applicable foreign, state and local tax returns required by law and
pay when due all taxes, assessments and governmental charges and levies upon it
or its income, profits or Property, except those which are being contested in
good faith by appropriate proceedings and with respect to which adequate
reserves have been set aside on Holdings Latest Balance Sheets.
(c) Compliance with Laws. Holdings will comply with all laws, rules,
regulations, orders, writs, judgments, injunctions, decrees or awards to which
it may be subject.
(d) Merger. Except as contemplated by this Agreement, Holdings will not
merge or consolidate with or into any other Person.
(e) Dilution of Ownership. Holdings will not consent to or approve of
the issuance of (i) any additional stock, securities or other equity securities
or interests, (ii) any instrument convertible voluntarily by Holdings or
automatically upon the occurrence or non-occurrence of any event or condition
into, or exchangeable for, any such stock, securities or interests, or (iii) any
warrants, options, contracts or other commitments entitling any third party to
purchase or otherwise acquire any such stock, securities or interests.
6.3 Access. From the Effective Date until the Closing Date (or the
termination of this Agreement), each party shall afford to the other party and
such other party's representatives reasonable access, upon reasonable notice
during normal business hours, to all its properties, books, contracts,
commitments, personnel and records and shall furnish promptly to such other
party all information concerning its business, properties and personnel as may
reasonably be requested. All such information as may be furnished by or on
behalf of a party to another party or such other party's representatives
pursuant to this Section 6.3 shall be and remain confidential. No investigation
pursuant to this Section 6.3 shall affect any representation or warranty in this
Agreement of any party hereto or any condition to the obligations of the parties
hereto.
16
6.4 Notification of Certain Matters. Each of MAII, the Company and
Holdings shall promptly advise the other parties orally and in writing of (a)
any representation or warranty made by it contained in this Agreement that is
qualified as to materiality becoming untrue or inaccurate in any respect or any
such representation or warranty that is not so qualified becoming untrue or
inaccurate in any material respect or (b) the failure by it to comply with or
satisfy in any material respect any covenant, condition or agreement to be
complied with or satisfied by it under this Agreement or (c) any event or change
or impending occurrence of any event or change of which it has knowledge and
which has resulted, or which, insofar as can reasonably be foreseen, is likely
to result, in any of the conditions to the transactions contemplated hereby set
forth in Article V not being satisfied; provided, however, that no such
notification shall affect the representations, warranties, covenants or
agreements of the parties or the conditions to the obligations of the parties
under this Agreement.
ARTICLE VII
LIMITATION ON TRANSFER OF HOLDINGS COMMON STOCK
7.1 Restriction on Transfer. The shares of Holdings Common Stock to be
issued to MAII in the Merger will not be registered under the Securities Act on
the Closing Date and may not be transferred, sold or otherwise disposed of by
MAII except pursuant to an effective registration statement under the Securities
Act or in accordance with an exemption from the registration requirements of the
Securities Act.
7.2 Restrictive Legend. Each certificate representing shares of
Holdings Common Stock issued by Holdings to MAII in accordance with Section 2.2
shall bear the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT") AND
ARE "RESTRICTED SECURITIES" AS THAT TERM IS DEFINED IN RULE
144 UNDER THE ACT, AND MAY NOT BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF BY THE HOLDER EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT FILED UNDER THE ACT, AS
AMENDED, AND IN COMPLIANCE WITH APPLICABLE SECURITIES LAWS OF
ANY STATE WITH RESPECT THERETO OR IN ACCORDANCE WITH AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE
ISSUER THAT AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE
AND ALSO MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF
BY THE HOLDER WITHOUT COMPLIANCE WITH THE APPLICABLE
SECURITIES AND EXCHANGE COMMISSION RULES AND REGULATIONS.
7.3 Removal of Restrictive Legend. Holdings agrees to remove such
legend (or any relevant portion thereof), by prompt delivery of substitute
certificates upon the request of the holder if at such time such legend (or
portion thereof) is no longer required for purposes of, or applicable pursuant
to, the prior provisions of this Section 7.2.
17
ARTICLE VIII
INDEMNIFICATION; TERMINATION
8.1 Indemnification by MAII. MAII hereby agrees to defend, indemnify
and hold Holdings, its officers, directors, shareholders, employees, successors,
assigns, attorneys and representatives harmless against all losses, claims,
damages, penalties, judgments, liabilities and expenses (including, without
limitation, all expenses of litigation or preparation therefor whether or not
Holdings is a party thereto) which Holdings may pay or incur arising out of or
relating to a breach of any representation, warranty or covenant of MAII or the
Company under this Agreement.
8.2 Indemnification by the Shareholders. The Shareholders, jointly and
severally, hereby agree to defend, indemnify and hold MAII and the Company, and
their respective officers, directors, shareholders, members, employees,
successors, assigns, attorneys and representatives harmless against all losses,
claims, damages, penalties, judgments, liabilities and expenses (including,
without limitation, all expenses of litigation or preparation therefor whether
or not MAII or the Company is a party thereto) which MAII or the Company may pay
or incur arising out of or relating to a breach of any representation, warranty
or covenant of CAI or Holdings under this Agreement.
8.3 Nonsurvival of Representations and Warranties. None of the
representations and warranties made by MAII or the Company in this Agreement or
in any certificate or schedule furnished hereunder shall survive the Effective
Time. The representations and warranties made by the Shareholders, CAI and
Holdings in this Agreement and in any certificate or schedule furnished
hereunder shall survive the Effective Time for a period of 180 days thereafter.
None of the covenants or agreements in this Agreement shall survive the
Effective Time, except for those covenants and agreements contained herein or
therein that by their terms apply or are to be performed in whole or in part
after the Effective Time, including without limitation, the covenants and
agreements contained in Section 8.2 above.
8.4 Termination. This Agreement may be terminated, and the transactions
contemplated hereby abandoned, prior to the Closing as follows:
(a) by CAI, Holdings, MAII and the Company by mutual written consent;
(b) by CAI or Holdings in the event any of the conditions in Section
5.2 have not been satisfied on or before June 14, 2002, through no fault of CAI
or Holdings; or
(c) by MAII or the Company in the event any of the conditions in
Section 5.3 have not been satisfied on or before June 14, 2002, through no fault
of MAII or the Company;
8.5 Effect of Termination. If this Agreement is terminated pursuant to
Sections 8.4(a), (b) or (c) all rights and obligations of the parties hereunder
shall terminate without liability of any party to any other party.
ARTICLE IX
GENERAL PROVISIONS
9.1 Headings. Section headings in this Agreement are for convenience of
reference only, and shall not govern the interpretation of any of the provisions
of this Agreement.
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9.2 Expenses. Each party hereto shall bear its own out-of-pocket
expenses (including reasonable attorneys' fees and time charges of attorneys)
paid or incurred by such party in connection with the preparation, negotiation,
execution, delivery, review, amendment, modification, and administration of this
Agreement and the Merger; it being represented and warranted by the Shareholders
that neither Holdings nor CAI have incurred any such expenses.
9.3 Entire Agreement; Assignment. This Agreement and the attached
Exhibits and Schedules embodies the entire agreement and understanding among
CAI, Holdings, the Shareholders, MAII and the Company and supersede all prior
agreements and understandings among such parties relating to the subject matter
thereof. This Agreement may not be assigned without the prior written consent of
the other parties.
9.4 Benefits of this Agreement. This Agreement shall not be construed
so as to confer any right or benefit upon any Person other than the parties to
this Agreement and their respective successors and assigns.
9.5 Amendment. No amendment or modification to this Agreement shall be
effective, unless in writing and signed by all the parties.
9.6 Severability. Any provision in this Agreement that is held to be
inoperative, unenforceable, or invalid in any jurisdiction shall, as to that
jurisdiction, be inoperative, unenforceable, or invalid without affecting the
remaining provisions in that jurisdiction or the operation, enforceability, or
validity of that provision in any other jurisdiction, and to this end the
provisions of this Agreement are declared to be severable.
9.7 Notices. All notices, requests and other communications to any
party hereunder shall be in writing (including electronic transmission,
facsimile transmission or similar writing) and shall be given to such party at
(a) its address or facsimile number set forth on the signature pages hereof or
(b) such other address or facsimile number as such party may hereafter specify.
Each such notice, request or other communication shall be effective (i) if given
by facsimile transmission, when transmitted to the facsimile number specified in
this Section and confirmation of receipt is received, (ii) if given by mail, 72
hours after such communication is deposited in the mail, certified or registered
with first class postage prepaid, addressed as aforesaid, or (iii) if given by
any other means, when delivered (or, in the case of electronic transmission,
received) at the address specified in this Section.
9.8 Choice Of Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO ITS CHOICE OF LAWS
PROVISIONS.
9.9 Venue. THE EXCLUSIVE JURISDICTION FOR ANY CLAIM OR CONTROVERSY
ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE IN THE STATE AND FEDERAL
COURTS LOCATED IN DALLAS COUNTY, TEXAS AND EACH PARTY HERETO IRREVOCABLY WAIVES
ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM.
19
9.10 Waiver Of Jury Trial. CAI, HOLDINGS, MAII AND THE COMPANY HEREBY
WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY
WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT OR THE
RELATIONSHIP ESTABLISHED THEREUNDER.
9.11 Counterparts; Facsimile. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one
agreement, and any of the parties hereto may execute this Agreement by signing
any such counterpart. This Agreement may be executed and delivered by facsimile
copy. In the event that this Agreement is executed and delivered by facsimile
copy, an original hard copy shall be delivered to the parties within 48 hours.
IN WITNESS WHEREOF, CAI, Holdings, MAII and the Company have executed
this Agreement as of the date first above written.
GUMP & COMPANY, INC.
By:_______________________________________
Title:____________________________________
Address: 192 Searidge Court
Shell Beach, California 93449
Attention: President
CRD ACQUISITION, INC.
By:_______________________________________
Title:____________________________________
Address: 192 Searidge Court
Shell Beach, California 93449
Attention: President
MAII HOLDINGS, INC.
__________________________________________
Christie S. Tyler, Chief Executive Officer
Address: 5805 Sepulveda Blvd., Suite 502
Van Nuys, California 91411
Fax: (818) 909-9433
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CAR RENTAL DIRECT, INC.
__________________________________________
Christie S. Tyler, Chief Executive Officer
Address: 5805 Sepulveda Blvd., Suite 502
Van Nuys, California 91411
Fax: (818) 909-9433
SHAREHOLDERS:
__________________________________________
Mark Disalvo
Address: 192 Searidge Court
Shell Beach, California 93449
__________________________________________
Kevin Halter, Jr.
Address: 2591 Dallas Parkway, Suite 102
Frisco, Texas 75034
Fax: (469) 633-0069
OTHERS:
__________________________________________
Robert M. Kern
Address: 23676 Blythe Street
West Hills, California 91304
Fax: (501) 421-2755
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EXHIBIT I
ARTICLES OF MERGER
[See attached]
I-1
EXHIBIT II
reorganization agreement
[See attached]
II-1