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EXHIBIT 2.2
MERGER AGREEMENT
This Merger Agreement (this "Agreement") is entered into as of
November 11, 1995 by and among Republic Waste Industries, Inc., a Delaware
corporation ("Republic"); RWI/JCD Inc., RWI/Grand Inc., RWI/Trashaway Inc.,
RWI/Tos-It Inc., RWI/WesTex Inc., RWI/Pantego I Inc., RWI/Pantego II Inc.,
RWI/Trucking I Inc., and RWI/Trucking II Inc., all Texas corporations and
wholly-owned subsidiaries of Republic (together, the "Republic Merger Subs",
and together with Republic, the "Republic Companies"); X.X. Xxxxxx Company,
Inc., a Texas corporation ("JCD"), and JCD's wholly-owned subsidiary, Arlington
Disposal Company, Inc., a Texas corporation ("ADC"); Grand Prairie Disposal
Company, Inc. ("GPD"), Trashaway Services, Inc. ("Trashaway"), Tos-It Service
Company, Inc. ("Tos-It"), Xxx Tex Waste Services, Inc. ("Xxx Tex"), Pantego
Service Company, a Texas general partnership ("Pantego"), Pantego I, Inc.
("PI"), Pantego II, Inc. ("PII"), E & E Truck Leasing I, Ltd., a Texas limited
partnership ("E&E"), EETL I, Inc. ("EETL I"), and EETL II, Inc. ("EETL II"),
all Texas corporations (except Pantego and E&E) and affiliates of JCD through
common ownership and/or management (together, the "JCD Affiliates", and
together with JCD, the "Xxxxxx Companies"); and Xxxxxx X. Xxxxxx, Xxxxxxxx X.
Xxxxxx, Xxx X. Xxxxxx, Xxxxx X. Xxxxxx, XxxXxx Xxxxxx Xxxxxxx, Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxx Xxxxxx Xxxxx, Xxxxxx X. Xxxxxx as Trustee of the Xxxxxx X.
Xxxxxx Annuity Trust No.'s One, Two, Three and Four, and Xxxxxxxx X. Xxxxxx as
Trustee of the Xxxxxxxx X. Xxxxxx Annuity Trust No.'s One, Two, Three and Four,
each a resident of the State of Texas (except Xxxxxx Xxxxxx Xxxxxx and Xxxxxxx
Xxxxxx Xxxxx, who are residents of the State of Louisiana) or trust formed
under the laws of the State of Texas and who constitute all of the shareholders
of one or more of JCD and/or the JCD Affiliates (together, the "Shareholders").
Certain other capitalized terms used herein are defined in Article XI or
elsewhere throughout this Agreement.
RECITALS
The Boards of Directors of Republic and the Xxxxxx Companies have
determined that it is in the best interests of their respective shareholders
for Republic to acquire the Xxxxxx Companies upon the terms and subject to the
conditions set forth in this Agreement. In order to effectuate the
transaction, Republic has organized the Republic Merger Subs as wholly-owned
subsidiaries, and the parties have agreed, subject to the terms and conditions
set forth in this Agreement, to merge the Republic Merger Subs with and into
the Xxxxxx Companies so that each of the Xxxxxx Companies continue as surviving
corporations. As a result, each of the Xxxxxx Companies will become a
wholly-owned subsidiary of Republic, and each of the Shareholders will be
issued certain shares of common stock of Republic.
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TERMS OF AGREEMENT
In consideration of the mutual representations, warranties, covenants
and agreements contained herein, the parties hereto agree as follows:
ARTICLE I
THE MERGERS
1.1 THE MERGERS. Subject to the terms and conditions of this
Agreement, at the Effective Time (as defined below), and pursuant to the terms
and conditions set forth in the Plans of Merger and Reorganization annexed
hereto as Exhibits A through I (the "Plans of Merger"), the Republic Merger
Subs will be merged into and with the Xxxxxx Companies (the "Mergers") as
follows:
(a) RWI/JCD Inc. will be merged into and with JCD;
(b) RWI/Grand Inc. will be merged into and with GPD;
(c) RWI/Trashaway Inc. will be merged into and with Trashaway;
(d) RWI/Tos-It Inc. will be merged into and with Tos-It;
(e) RWI/Xxx Tex Inc. will be merged into and with Xxx Tex;
(f) RWI/Pantego I Inc. will be merged into and with PI;
(g) RWI/Pantego II Inc. will be merged into and with PII;
(h) RWI/Trucking I Inc. will be merged into and with EETL I; and
(i) RWI/Trucking II Inc. will be merged into and with EETL II.
The terms and conditions of the Plans of Merger are incorporated herein by
reference as if fully set forth herein. As a result of the Mergers, the
separate corporate existence of each of the Republic Merger Subs shall cease
and each of the Xxxxxx Companies shall continue as surviving corporations and
wholly-owned subsidiaries of Republic.
1.2 THE CLOSING. Subject to the terms and conditions of this
Agreement, the consummation of the Mergers (the "Closing") shall take place as
promptly as practicable (and in
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any event within five (5) business days) after satisfaction or waiver of the
conditions set forth in Articles VI and VII, at the offices of Akerman,
Senterfitt & Xxxxxx, P.A. in Miami, Florida, or such other place as the parties
may otherwise agree.
1.3 PLANS OF MERGER. Pursuant to the Plans of Merger, an
aggregate of 5,256,055 shares of common stock, $0.01 par value per share, of
Republic ("Republic Common Stock") will be issued in the Mergers in exchange
for all issued and outstanding shares of capital stock of each of the Xxxxxx
Companies. The 5,256,055 shares of Republic Common Stock shall be allocated
among the Xxxxxx Companies as follows: First, the fair market value of JCD,
GPD, Tos-It, Trashaway, Xxx Tex, Pantego and E&E, shall be determined by and
set forth in written appraisals of Xxxxxxxxx and Associates, Dallas, Texas.
Next, the "Adjusted Values" of such companies shall be determined by deducting
the following amounts from the fair market value of each such company:
JCD $3,378,166.84
GPD -0-
Tos-It -0-
Trashaway 29,325.00
Xxx Tex 1,500.00
Pantego -0-
E&E 75,250.00
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Total
$3,484,241.84
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Then, 5,095,238 shares of the Republic Common Stock shall be allocated among
such companies in proportion to the Adjusted Values as determined above. In
the case of Pantego and E&E, the shares allocated to those entities shall be
reallocated pro rata to their respective corporate partners. Then, the shares
so allocated to each of the Xxxxxx Companies shall be allocated to their
respective shareholders in accordance with their respective share ownership in
the Xxxxxx Companies. Finally, an additional 160,817 shares shall be allocated
among the shareholders of JCD in accordance with their respective share
ownership in JCD. After such allocations are computed and at least five (5)
days before Closing, the Shareholders shall deliver to Republic a certificate
signed by each of them setting forth such allocations of the 5,256,055 shares
of Republic Common Stock to each of the Xxxxxx Companies and their respective
Shareholders.
1.4 FILING OF ARTICLES OF MERGER. Upon Republic's receipt of
the certificate executed by all of the Shareholders pursuant to Section 1.3,
Republic shall complete the Plans of Merger in accordance with such
certificate. At the time of the Closing, the parties shall cause the Mergers
to be consummated by filing duly executed Articles of Merger (with the
completed Plans of
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Merger respectively annexed thereto) with the Secretary of State of the State
of Texas, in such form as Republic determines is required by and is in
accordance with the relevant provisions of the Texas Business Corporation Act
(the "TBCA") (the date and time of such filing is referred to herein as the
"Effective Date" or "Effective Time").
1.5 ISSUANCE OF REPUBLIC SHARES. At the Effective Time, by
virtue of the Merger and without any further action on the part of the parties
hereto, Republic shall issue to the Shareholders duly executed certificates, in
valid form registered in each such Shareholder's name, evidencing that number
of shares of Republic Common Stock determined, to the nearest whole share, in
accordance with each of the respective Plans of Merger and as set forth in
certificate executed by all of the Shareholders pursuant to Section 1.3. Any
Shareholders who wish to have their allocable shares of Republic Common Stock
issued in multiple certificates shall deliver a certificate to Republic within
5 business days prior to Closing pursuant to this Section 1.5 setting forth the
manner in which they wish to have their share certificates issued.
1.6 DELIVERY OF CERTIFICATES. At the Closing, the Shareholders
shall deliver the certificates representing all of the issued and outstanding
shares of capital stock of each of the Xxxxxx Companies to Republic for
cancellation, and Republic shall deliver the certificates representing the
shares of Republic Common Stock issued pursuant to Section 1.5 in the following
manner: (i) Republic shall deliver to each such holder one or more certificates
evidencing ninety-five percent (95%) of such shares of Republic Common Stock
(rounded to the nearest whole share), and (ii) Republic shall set aside and
hold in accordance with Article IX the certificates evidencing the balance of
such shares of Republic Common Stock (the "Held Back Shares"). The shares of
Republic Common Stock, including the Held Back Shares, issuable by Republic in
the Mergers are sometimes referred to herein as the "Republic Shares".
1.7 ACCOUNTING TREATMENT. The parties hereto acknowledge and
agree that the transactions contemplated hereby shall be treated as pooling of
interests business combinations.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF REPUBLIC
As a material inducement to each of the Shareholders to enter into
this Agreement and to consummate the transactions contemplated hereby, Republic
makes the following representations and warranties to the Shareholders:
2.1 CORPORATE STATUS. Republic is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
Each of the Republic Merger Subs is a corporation duly organized, validly
existing and in good standing under the laws of the State of Texas. Each of
the Republic Merger Subs is a wholly-owned subsidiary of Republic.
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2.2 CORPORATE POWER AND AUTHORITY. Each of the Republic
Companies has the corporate power and authority to execute and deliver this
Agreement, to perform its respective obligations hereunder and to consummate
the transactions contemplated hereby. Each of the Republic Companies has taken
all action necessary to authorize its execution and delivery of this Agreement,
the performance of its respective obligations hereunder and the consummation of
the transactions contemplated hereby.
2.3 ENFORCEABILITY. This Agreement has been duly executed and
delivered by each of the Republic Companies and constitutes a legal, valid and
binding obligation of each of the Republic Companies, enforceable against each
of the Republic Companies in accordance with its terms, except as the same may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and
general equitable principles regardless of whether such enforceability is
considered in a proceeding at law or in equity.
2.4 REPUBLIC COMMON STOCK. Upon consummation of the Mergers and
the issuance and delivery of certificates representing the Republic Shares to
the Shareholders, the Republic Shares will be validly issued, fully paid and
non-assessable shares of Republic Common Stock, and the Shareholders will
acquire good, valid and marketable title to, and record ownership of, the
Republic Shares respectively issued to them pursuant to Section 1.5.
2.5 NO COMMISSIONS. None of the Republic Companies has incurred
any obligation for any finder's or broker's or agent's fees or commissions or
similar compensation in connection with the transactions contemplated hereby.
2.6 NO VIOLATION. The execution and delivery by the Republic
Companies of this Agreement, the consummation of the transactions contemplated
hereby, and the compliance by the Republic Companies with the terms and
provisions hereof, will not result in a default under (or give any other party
the right, with the giving of notice or the passage of time (or both), to
declare a default or accelerate any obligation under) or violate the Articles
of Incorporation or Bylaws of any of or any Contract to which any of the
Republic Companies is a party or by which any of the Republic Companies or
their respective properties or assets are bound (except to the extent that such
a default would not, in the case of a Contract, have a Material Adverse Effect
on Republic), or any Requirement of Law applicable to the Republic Companies,
or result in the creation or imposition of any Lien upon any of the capital
stock, properties or assets of any of (except where such Lien would not have a
Material Adverse Effect on Republic).
2.7 CONSENTS/APPROVALS. Except for filing and approval under
the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), (a) no consents, filings, authorizations or other actions of any
Governmental Authority are required for execution, delivery and performance of
this Agreement by any of the Republic Companies, and (b) no consent, approval,
waiver or other action by any Person under any Contract to which any of the
Republic Companies is a party or by which any of their respective properties or
assets are bound is required
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or necessary for the execution, delivery or performance by any of the Republic
Companies of this Agreement and the consummation of the transactions
contemplated hereby, except where the failure to obtain such consents would not
have a Material Adverse Effect on the Republic Companies.
2.8 CAPITALIZATION. The authorized capital stock of Republic
consists of 355,000,000 shares, of which 350,000,000 are shares of Republic
Common Stock and 5,000,000 are shares of preferred stock. As of the date
hereof, 62,583,074 shares of Republic Common Stock are validly issued and
outstanding, fully paid, and non-assessable, and no shares of preferred stock
are issued or outstanding. Not more than 40,000,000 shares of Republic Common
Stock have been reserved for issuance as of the date hereof pursuant to various
stock option plans, warrants, and pending contracts for business acquisitions,
and no other shares of Common Stock and no shares of preferred stock, or any
rights, options, warrants, convertible securities, subscription rights or other
agreements or commitments of any kind obligating Republic to issue or sell any
other shares of Republic Common Stock or preferred stock, are outstanding or
have been authorized, as of the date hereof. All issued and outstanding shares
of capital stock of the Republic Merger Subs are owned beneficially and of
record by Parent. No other shares of capital stock of the Republic Merger Subs
or any rights, options, warrants, convertible securities, subscription rights
or other agreements or commitments of any kind obligating any of the Republic
Merger Subs to issue or sell other such shares are outstanding or have been
authorized.
2.9 SEC REPORTS AND NASDAQ COMPLIANCE. Since January 1, 1995,
Republic has made all filings (the "SEC Reports") required to be made by it
under the Securities Act, the Exchange Act and the securities laws of any
state, and any rules and regulations promulgated thereunder and pursuant to any
Requirements of Law. The SEC Reports, when filed, complied in all material
respects with all applicable requirements of the Securities Act, the Exchange
Act and other Requirements of Law. None of the SEC Reports, at the time of
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 not misleading in light of the circumstances in which they
were made. Republic has delivered or made accessible to the Shareholders true,
accurate and complete copies of the SEC Reports, as amended, which were filed
with the SEC since January 1, 1995, and as in effect as of the date hereof.
Republic has taken all necessary actions to ensure its continued inclusion in,
and the continued eligibility of the Republic Common Stock for trading on the
NASDAQ Stock Market under all currently effective and currently proposed
inclusion requirements.
2.10 GOVERNING DOCUMENTS. Republic has delivered or made
available to the Shareholders true, accurate and complete copies of the
Certificate of Incorporation and Bylaws of Republic in effect as of the date
hereof.
2.11 FINANCIAL STATEMENTS. Each of the balance sheets included
in the SEC Reports (including any related notes and schedules) fairly presents
in all material respects the consolidated financial position of Republic as of
its date, and each of the other financial statements included
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in the SEC Reports (including any related notes and schedules) fairly presents
in all material respects the consolidated results of operations or other
information therein of Republic for the periods or as of the dates therein set
forth in accordance with GAAP consistently applied during the periods involved.
2.12 CHANGES SINCE JUNE 30, 1995. Since June 30, 1995, (i) there
has been no Material Adverse Change in Republic, and (ii) there has not been
any direct or indirect redemption, purchase or other acquisition by Republic of
any Republic Common Stock, or any declaration, setting aside or payment of any
dividend or other distribution by Republic in respect of the Republic Common
Stock.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
THE SHAREHOLDERS
As a material inducement to Republic to enter into this Agreement and
to consummate the transactions contemplated hereby, each of the Shareholders
jointly and severally makes the following representations and warranties to
Republic:
3.1 CORPORATE STATUS. Each of the Xxxxxx Companies and ADC is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Texas and has the requisite power and authority to own or
lease its properties and to carry on its business as now being conducted. None
of the Xxxxxx Companies and ADC is legally qualified to transact business as a
foreign corporation in any other jurisdictions as the nature of its properties
and the conduct of its business does not require such qualification and failure
to so qualify would not have a Material Adverse Effect on any of the Xxxxxx
Companies or ADC. There is no pending or threatened proceeding for the
dissolution, liquidation, insolvency or rehabilitation of any of the Xxxxxx
Companies or ADC.
3.2 POWER AND AUTHORITY. Each of the Xxxxxx Companies and ADC
has the power and authority to execute and deliver this Agreement, to perform
its respective obligations hereunder and to consummate the transactions
contemplated hereby. Each of the Xxxxxx Companies and ADC has taken all action
necessary to authorize the execution and delivery of this Agreement, the
performance of its respective obligations hereunder and the consummation of the
transactions contemplated hereby. Each of the Shareholders are individuals
residing in, or is a trust formed under the laws of, the State of Texas, except
for Xxxxxx Xxxxxx Xxxxxx and Xxxxxxx Xxxxxx Xxxxx who are individuals residing
in the State of Louisiana. Each of the Shareholders has the requisite
competence and authority to execute and deliver this Agreement, to perform his,
her or its respective obligations hereunder and to consummate the transactions
contemplated hereby.
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3.3 ENFORCEABILITY. This Agreement has been duly executed and
delivered by each of the Xxxxxx Companies, ADC and the Shareholders, and
constitutes the legal, valid and binding obligation of each of them,
enforceable against them in accordance with its terms, except as the same may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and
general equitable principles regardless of whether such enforceability is
considered in a proceeding at law or in equity.
3.4 CAPITALIZATION. Schedule 3.4 sets forth, with respect to
each of the Xxxxxx Companies and ADC, (a) the number of authorized shares of
each class of its capital stock, (b) the number of issued and outstanding
shares of each class of its capital stock, and (c) the number of shares of each
class of its capital stock which are held in treasury. All of the issued and
outstanding shares of capital stock of each of the Xxxxxx Companies and ADC (a)
have been duly authorized and validly issued and are fully paid and
non-assessable, (b) were issued in compliance with all applicable state and
federal securities laws, and (c) were not issued in violation of any preemptive
rights or rights of first refusal. Except as set forth in Schedule 3.4, no
preemptive rights or rights of first refusal exist with respect to the shares
of capital stock of each of the Xxxxxx Companies and ADC, and no such rights
arise by virtue of or in connection with the transactions contemplated hereby;
and, to the extent permitted by law, each of the Shareholders has waived (or
hereby waives) any and all such preemptive rights and rights of first refusal.
There are no outstanding or authorized rights, options, warrants, convertible
securities, subscription rights, conversion rights, exchange rights or other
agreements or commitments of any kind that could require any of the Xxxxxx
Companies or ADC to issue or sell any shares of its capital stock (or
securities convertible into or exchangeable for shares of its capital stock).
There are no outstanding stock appreciation, phantom stock, profit
participation or other similar rights with respect to any of the Xxxxxx
Companies or ADC. There are no proxies, voting rights or other agreements or
understandings with respect to the voting or transfer of the capital stock of
any of the Xxxxxx Companies or ADC. None of the Xxxxxx Companies or ADC is
obligated to redeem or otherwise acquire any of its outstanding shares of
capital stock.
3.5 SHAREHOLDERS. Schedule 3.5 sets forth, with respect to each
of the Xxxxxx Companies and ADC, (a) the name, address and federal taxpayer
identification number of, and the number of outstanding shares of each class of
its capital stock owned by, each shareholder of record as of the close of
business on the date of this Agreement; and (b) the name, address and federal
taxpayer identification number of, and number of shares of each class of its
capital stock beneficially owned by, each beneficial owner of outstanding
shares of capital stock (to the extent that record and beneficial ownership of
any such shares are different). The Shareholders constitute all of the holders
of all issued and outstanding shares of capital stock of all of the Xxxxxx
Companies, and each of the Shareholders owns such shares as is set forth on
Schedule 3.5, and JCD owns the issued and outstanding shares of capital stock
of ADC, free and clear of all Liens, restrictions and claims of any kind,
except as set forth on Schedule 3.5, and all Liens noted on Schedule 3.5 shall
be released at or prior to the Closing.
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3.6 NO VIOLATION. Except as set forth on Schedule 3.6, the
execution and delivery of this Agreement by each of the Xxxxxx Companies, ADC
and the Shareholders, the performance by them of their respective obligations
hereunder and the consummation by them of the transactions contemplated by this
Agreement will not (i) contravene any provision of the articles of
incorporation or bylaws of any of the Xxxxxx Companies or ADC; (ii) violate or
conflict with any law, statute, ordinance, rule, regulation, decree, writ,
injunction, judgment or order of any Governmental Authority or of any
arbitration award which is either applicable to, binding upon or enforceable
against any of the Xxxxxx Companies or ADC or any of the Shareholders; (iii)
conflict with, result in any breach of, or constitute a default (or an event
which would, with the passage of time or the giving of notice or both,
constitute a default) under, or give rise to a right to terminate, amend,
modify, abandon or accelerate, any Contract which is applicable to, binding
upon or enforceable against any of the Xxxxxx Companies or ADC or any of the
Shareholders, except to the extent such a default would not result in Material
Adverse Effect; (iv) result in or require the creation or imposition of any
Lien upon or with respect to any of the property or assets of any of the Xxxxxx
Companies or ADC; or (v) require the consent, approval, authorization or permit
of, or filing with or notification to, any Governmental Authority, any court or
tribunal or any other Person, except any applicable filings required under the
HSR Act and any SEC and other filings required to be made by the Republic
Companies, or except to the extent failure to obtain such consent, approval,
authorization or permit, or to make such filing or notification, would not
result in Material Adverse Effect, or would not preclude the Mergers from being
consummated in accordance with this Agreement.
3.7 RECORDS OF THE COMPANY. The copies of the respective
articles of incorporation and bylaws of the Xxxxxx Companies and ADC which were
provided to Republic are true, accurate and complete and reflect all amendments
made through the date of this Agreement. True and correct copies of the minute
books for the Xxxxxx Companies and ADC were made available to Republic for
review. Since July 1, 1993, all material corporate actions taken by any of the
Xxxxxx Companies and ADC have been duly authorized or ratified. The stock
ledgers of the Xxxxxx Companies and ADC, as previously made available to
Republic, contain accurate and complete records of all issuances, transfers and
cancellations of shares of the capital stock of the Xxxxxx Companies and ADC,
respectively.
3.8 SUBSIDIARIES. Except for ADC, which is a wholly-owned
subsidiary of JCD, and as otherwise set forth on Schedule 3.8, none of the
Xxxxxx Companies owns, directly or indirectly, any outstanding voting
securities of or other interests in, or controls, any other corporation,
partnership, joint venture or other business entity.
3.9 FINANCIAL STATEMENTS. The Shareholders have delivered to
Republic the combined financial statements as of June 30, 1995 and 1994 of the
Xxxxxx Companies and ADC (excluding only PI, PII, EETL I, and EETL II),
including the notes thereto, audited by Xxxxxxx Xxxxxx & Associates, L.L.P.
(collectively, the "Financial Statements"), a copy of which is attached to
Schedule 3.9 hereto. The combined balance sheet dated as of June 30, 1995
included in the Financial Statements is referred to herein as the "Current
Balance Sheet". The Financial
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Statements fairly present the combined financial position of the Xxxxxx
Companies and ADC (except for PI, PII, EETL I, and EETL II) at each of the
balance sheet dates and the results of operations for the periods covered
thereby, and have been prepared in accordance with GAAP consistently applied
throughout the periods indicated. The books and records of the Xxxxxx
Companies and ADC fully and fairly reflect all of their respective
transactions, properties, assets and liabilities. The balance sheets included
in the Financial Statements do not reflect any writeup or revaluation
increasing the book value of any assets, except as specifically disclosed in
the notes thereto. The Financial Statements reflect all adjustments necessary
for a fair presentation of the financial information contained therein.
3.10 CHANGES SINCE THE CURRENT BALANCE SHEET DATE. Except as
disclosed in Schedule 3.10 and/or 4.1, since the date of the Current Balance
Sheet, none of the Xxxxxx Companies or ADC has (i) issued any capital stock or
other securities; (ii) made any distribution of or with respect to its capital
stock or other securities or purchased or redeemed any of its securities; (iii)
paid any bonus to or increased the rate of compensation of any of its officers
or salaried employees or amended any other terms of employment of such persons;
(iv) sold, leased or transferred any of its properties or assets other than in
the ordinary course of business consistent with past practice; (v) made or
obligated itself to make capital expenditures out of the ordinary course of
business consistent with past practice; (vi) made any payment in respect of its
liabilities other than in the ordinary course of business consistent with past
practice; (vii) incurred any obligations or liabilities (including any
indebtedness) or entered into any transaction or series of transactions
involving in excess of $50,000 in the aggregate out of the ordinary course of
business, except for this Agreement and the transactions contemplated hereby;
(viii) suffered any theft, damage, destruction or casualty loss, not covered by
insurance and for which a timely claim was filed, in excess of $50,000 in the
aggregate; (ix) suffered any extraordinary losses (whether or not covered by
insurance); (x) waived, cancelled, compromised or released any rights having a
value in excess of $50,000 in the aggregate; (xi) made or adopted any change in
its accounting practice or policies; (xii) made any adjustment to its books and
records other than in respect of the conduct of its business activities in the
ordinary course consistent with past practice; (xiii) entered into any
transaction with any Affiliate other than intercompany transactions in the
ordinary course of business consistent with past practice; (xiv) entered into
any employment agreement, except in the ordinary course of business consistent
with past practices; (xv) terminated, amended or modified any agreement
involving an amount in excess of $50,000; (xvi) imposed any security interest
or other Lien on any of its assets other than in the ordinary course of
business consistent with past practice; (xvii) delayed paying any accounts
payable which is due and payable except to the extent being contested in good
faith; (xviii) made or pledged any charitable contribution other than in the
ordinary course of business consistent with past practice; (xix) entered into
any other transaction or been subject to any event which has or may have a
Material Adverse Effect on the Company; or (xx) agreed to do or authorized any
of the foregoing.
3.11
LIABILITIES OF THE COMPANY. Except as set forth on Schedule
3.11, the Xxxxxx Companies and ADC do not have any liabilities or obligations,
whether accrued, absolute, contingent or otherwise, except (a) to the extent
reflected or taken into account in the Current
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Balance Sheet and not heretofore paid or discharged, (b) to the extent
specifically set forth in or incorporated by express reference in any of the
Schedules attached hereto, (c) liabilities incurred in the ordinary course of
business consistent with past practice since the date of the Current Balance
Sheet (none of which relates to breach of contract, breach of warranty, tort,
infringement or violation of law, or which arose out of any action, suit,
claim, governmental investigation or arbitration proceeding), (d) normal
accruals, reclassifications, and audit adjustments which would be reflected on
an audited financial statement and which would not be material in the
aggregate, (e) liabilities incurred in the ordinary course of business prior to
the date of the Current Balance Sheet which, in accordance with GAAP
consistently applied, were not recorded thereon and (f) other liabilities or
obligations which, individually or in the aggregate, will not result in a
Material Adverse Effect.
3.12 LITIGATION. Except as set forth on Schedule 3.12, there is
no action, suit, or other legal or administrative proceeding or governmental
investigation pending, or to the knowledge of the Shareholders threatened,
anticipated or contemplated against, by or affecting any of the Xxxxxx
Companies or ADC, or any of their respective properties or assets, or the
Shareholders, or which question the validity or enforceability of this
Agreement or the transactions contemplated hereby, and, to the knowledge of the
Shareholders, there is no basis for any of the foregoing. There are no
outstanding orders, decrees or stipulations issued by any Governmental
Authority in any proceeding to which the Xxxxxx Companies or ADC is or was a
party which have not been complied with in full or which continue to impose any
material obligations on the Xxxxxx Companies or ADC.
3.13 ENVIRONMENTAL MATTERS. Except as set forth on Schedule 3.13:
(a) The Company is and has at all times been in
compliance in all material respects with all Environmental, Health and Safety
Laws (as defined herein) governing its business, operations, properties and
assets, including, without limitation, Environmental, Health and Safety Laws
with respect to discharges into the ground water, surface water and soil,
emissions into the ambient air, and generation, accumulation, storage,
treatment, transportation, transfer, labeling, handling, manufacturing, use,
spilling, leaking, dumping, discharging, release or disposal of Hazardous
Substances (as defined herein), or other Waste (as described herein). The
Company is not currently liable for any penalties, fines or forfeitures for
failure to comply with any Environmental, Health and Safety Laws. The Company
is in compliance in all material respects with all notice, record keeping and
reporting requirements of all Environmental, Health and Safety Laws, and has
complied with all informational requests or demands arising under the
Environmental, Health and Safety Laws.
(b) The Company has obtained, or caused to be obtained,
and is in material compliance with, all material licenses, certificates,
permits, approvals and registrations (collectively "Licenses") required by the
Environmental, Health and Safety Laws for the ownership of its properties and
assets and the operation of its business as presently conducted, including,
without limitation, all air emission, water discharge, water use and solid
waste,
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hazardous waste and other Waste generation, transportation, transfer,
storage, treatment or disposal Licenses. There are no administrative or
judicial investigations, notices, claims or other proceedings pending or
threatened by any Governmental Authority or third parties against the Company,
its businesses, operations, properties, or assets, which question the validity
or entitlement of the Company to any License required by the Environmental,
Health and Safety Laws for the ownership of each of the properties and assets
of the Company and the operation of its business or wherein an unfavorable
decision, ruling or finding could have a Material Adverse Effect on the Company.
(c) The Company has not received and is not aware of any
non-compliance order, warning letter, notice of violation, claim, suit, action,
judgment, or administrative or judicial proceeding pending against or involving
the Company, its business, operations, properties, or assets, issued by any
Governmental Authority or third party with respect to any Environmental, Health
and Safety Laws in connection with the ownership by the Company of its
properties or assets or the operation of its business, which has not been
resolved to the satisfaction of the issuing Governmental Authority or third
party, or which could have a Material Adverse Effect on the Company.
(d) The Company is in full compliance with, and is not
in breach of or default under any applicable writ, order, judgment, injunction,
governmental communication or decree issued pursuant to the Environmental,
Health and Safety Laws and no event has occurred or is continuing which, with
the passage of time or the giving of notice or both, would constitute such
non-compliance, breach or default thereunder, or affect the Owned Properties or
Leased Premises, except where the failure to so comply would not have a
Material Adverse Effect on the Company.
(e) The Company has not generated, manufactured, used,
transported, transferred, stored, handled, treated, spilled, leaked, dumped,
discharged, released or disposed, nor has it allowed or arranged for any third
parties to generate, manufacture, use, transport, transfer, store, handle,
treat, spill, leak, dump, discharge, release or dispose of, Hazardous
Substances or other waste to or at any location other than a site lawfully
permitted to receive such Hazardous Substances or other waste for such
purposes, nor has it performed, arranged for or allowed by any method or
procedure such generation, manufacture, use, transportation, transfer, storage,
treatment, spillage, leakage, dumping, discharge, release or disposal in
contravention of any Environmental, Health and Safety Laws. The Company has
not generated, manufactured, used, stored, handled, treated, spilled, leaked,
dumped, discharged, released or disposed of, or allowed or arranged for any
third parties to generate, manufacture, use, store, handle, treat, spill, leak,
dump, discharge, release or dispose of, Hazardous Substances or other waste
upon property owned or leased by it, except as permitted by law. For purposes
of this Section 3.13, the term "Hazardous Substances" shall be construed
broadly to include any toxic or hazardous substance, material, or waste, and
any other contaminant, pollutant or constituent thereof, whether liquid, solid,
semi-solid, sludge and/or gaseous, including without limitation, chemicals,
compounds, by-products, pesticides, asbestos containing materials, petroleum or
petroleum products, and polychlorinated biphenyls, the presence of which
requires investigation or remediation under any
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Environmental, Health and Safety Laws or which are or become regulated, listed
or controlled by, under or pursuant to any Environmental Health and Safety
Laws, including, without limitation, the United States Department of
Transportation Table (49 CFR 172, 101) or by the Environmental Protection
Agency as hazardous substances (40 CFR Part 302) and any amendments thereto;
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended by the Superfund Amendment and Reauthorization Act of 1986,
42 U.S.C. Section 9601, et seq. (hereinafter collectively "CERCLA"); the Solid
Waste Disposal Act, as amended by the Resource Conversation and Recovery Act of
1976 and subsequent Hazardous and Solid Waste Amendments of 1984, 42 U.S.C.
Section 6901 et seq. (hereinafter, collectively "RCRA"); the Hazardous
Materials Transportation Act, as amended, 49 U.S.C. Section 1801, et seq.;
the Clean Water Act, as amended, 33 U.S.C. Section 1311, et seq.; the Clean
Air Act, as amended (42 U.S.C. Section 7401-7642); Toxic Substances Control
Act, as amended, 15 U.S.C. Section 2601 et seq; the Federal Insecticide,
Fungicide, and Rodenticide Act as amended, 7 U.S.C. Section 136-136y ("FIFRA");
the Emergency Planning and Community Right-to-Know Act of 1986 as amended, 42
U.S.C. Section 11001, et seq. (Title III of XXXX) ("EPCRA"); the Occupational
Safety and Health Act of 1970, as amended, 29 U.S.C. Section 651, et seq.
("OSHA"); any similar state statute, or any future amendments to, or
regulations implementing such statutes, laws, ordinances, codes, rules,
regulations, orders, rulings, or decrees, or which has been or shall be
determined or interpreted at any time by any Governmental Authority to be a
hazardous or toxic substance regulated under any other statute, law,
regulation, order, code, rule, order, or decree. For purposes of this Section
3.13, the term "Waste" shall be construed broadly to include agricultural
wastes, biomedical wastes, biological wastes, bulky wastes, construction and
demolition debris, garbage, household wastes, industrial solid wastes, liquid
wastes, recyclable materials, sludge, solid wastes, special wastes, used oils,
white goods, and yard trash.
(f) The Company has not caused, or allowed to be caused
or permitted, either by action or inaction, a Release or Discharge, or
threatened Release or Discharge, of any Hazardous Substance on, into or beneath
the surface of any parcel of the Owned Properties or the Leased Premises.
There has not occurred, nor is there presently occurring, a Release or
Discharge, or threatened Release or Discharge, of any Hazardous Substance on,
into or beneath the surface of any parcel of the Owned Properties or the Leased
Premises. For purposes of this Section, the terms "Release" and "Discharge"
shall have the meanings given them in the Environmental, Health and Safety
Laws.
(g) The Company has not generated, handled,
manufactured, treated, stored, used, shipped, transported, transferred, or
disposed of, nor has it allowed or arranged, by contract, agreement or
otherwise, for any third parties to generate, handle, manufacture, treat,
store, use, ship, transport, transfer or dispose of, any Hazardous Substance or
other Waste to or at a site which, pursuant to CERCLA or any similar state law
(i) has been placed on the National Priorities List or its state equivalent; or
(ii) the Environmental Protection Agency or the relevant state agency has
notified the Company that it has proposed or is proposing to place on the
National Priorities List or its state equivalent. Neither the Company nor the
Shareholders has received notice, and neither the Company nor the Shareholders
has knowledge of any facts which
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could give rise to any notice, that the Company is a potentially responsible
party for a federal or state environmental cleanup site or for corrective
action under CERCLA, RCRA or any other applicable Environmental Health and
Safety Laws. The Company has not submitted nor was required to submit any
notice pursuant to Section 103(c) of CERCLA with respect to the Leased
Premises or the Owned Properties. The Company has not received any written or
oral request for information in connection with any federal or state
environmental cleanup site or in connection with any of the real property or
premises where the Company has transported, transferred or disposed of other
Wastes. The Company has not been required to and has not undertaken any
response or remedial actions or clean-up actions of any kind at the request of
any Governmental Authorities or at the request of any other third party. The
Company has no liability under any Environmental, Health and Safety Laws for
personal injury, property damage, natural resource damage, or clean up
obligations.
(h) The Company does not use, nor has it used, any
Aboveground Storage Tanks or Underground Storage Tanks, and there are not now
nor have there ever been any Underground Storage Tanks on the Leasehold
Premises or the Owned Properties. For purposes of this Section 3.13, the terms
"Aboveground Storage Tanks" and "Underground Storage Tanks" shall have the
meanings given them in Section 6901 et seq., as amended, of RCRA, or any
applicable state or local statute, law, ordinance, code, rule, regulation,
order ruling, or decree governing Aboveground Storage Tanks or Underground
Storage Tanks.
(i) As used in this Agreement, "Environmental, Health
and Safety Laws" means all federal, state, regional or local statutes, laws,
rules, regulations, codes, orders, plans, injunctions, decrees, rulings, and
changes or ordinances or judicial or administrative interpretations thereof,
any of which govern (or purport to govern) or relate to pollution, protection
of the environment, public health and safety, air emissions, water discharges,
hazardous or toxic substances, solid or hazardous waste or occupational health
and safety, as any of these terms are or may be defined in such statutes, laws,
rules, regulations, codes, orders, plans, injunctions, decrees, rulings and
changes or ordinances, or judicial or administrative interpretations thereof,
including, without limitation, RCRA, CERCLA, the Hazardous Materials
Transportation Act, the Toxic Substances Control Act, the Clean Air Act, the
Clean Water Act, FIFRA, EPCRA and OSHA.
(j) Schedule 3.13 identifies the operations and
activities, and locations thereof, which have been conducted and are being
conducted by the Company on any of the Owned Properties or the Leased Premises
which have involved the generation, accumulation, storage, treatment,
transportation, labelling, handling, manufacturing, use, spilling, leaking,
dumping, discharging, release or disposal of Hazardous Substances.
(k) Notwithstanding the potential claims concerning
possible soil or groundwater contamination associated with the City of San
Angelo's municipal landfill operated by Trashaway ("San Xxxxxx Municipal
Landfill"), the Company has and shall have no liability to any Governmental
Authority or third party based on any claim of any nature whatsoever
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relating to or arising out of any such soil or groundwater contamination, and
the Company has and shall have no obligation, under operation of law or by
contract or in tort or otherwise, to pay or incur any costs or expenses of any
nature whatsoever relating to or arising out of the evaluation and/or
remediation of such soil or groundwater contamination, which may exist or has
occurred, or be associated with, or has been or is being caused by the
operations of, or is the result of releases, discharges and/or leaks at, the
San Xxxxxx Municipal Landfill, and payment of any and all such costs and
expenses shall be the sole and exclusive responsibility, liability and
obligation of the City of San Angelo, Texas, without any claim of contribution
against or other right to seek redress from the Company with respect to such
groundwater contamination.
(l) As used in this Section 3.13, the term "the Company"
is deemed to refer to any and all of the Xxxxxx Companies and ADC and their
Affiliates.
3.14 REAL ESTATE
(a) None of the Xxxxxx Companies or ADC own any real
property or any interest therein except as set forth on Schedule 3.14(a) (the
"Owned Properties"), which Schedule sets forth the location of each of the
Owned Properties. Except as set forth on Schedule 3.14(a), with respect to
each such parcel of Owned Property:
(i) One of the Xxxxxx Companies or ADC has good title to
the parcel of Owned Property, free and clear of any Lien other than
(x) liens for real estate taxes not yet due and payable; (y) recorded
easements, covenants, and other restrictions which do not impair the
current use, occupancy or value of the property subject thereto, and
(z) encumbrances and restrictions described in the title insurance
policies listed on Schedule 3.14(a), all of which policies have been
delivered or made available to Republic by the Xxxxxx Companies;
(ii) there are no pending or, threatened condemnation
proceedings, suits or administrative actions relating to the Owned
Properties or other matters affecting adversely the current use,
occupancy or value thereof;
(iii) the legal descriptions for the parcels of Owned
Property contained in the deeds thereof describe such parcels fully
and adequately; the buildings and improvements are located within the
boundary lines of the described parcels of land, are not in violation
of applicable setback requirements, local comprehensive plan
provisions, zoning laws and ordinances (and none of the properties or
buildings or improvements thereon are subject to "permitted non-
conforming use" or "permitted non-conforming structure"
classifications), building code requirements, permits, licenses or
other forms of approval by any Governmental Authority, and do not
encroach on any easement which may burden the land; the land does not
serve any adjoining property for any purpose inconsistent with the use
of the land; and the Owned Properties are not located within any flood
plain
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(such that a mortgagee would require a mortgagor to obtain
flood insurance) or subject to any similar type restriction for which
any permits or licenses necessary to the use thereof have not been
obtained;
(iv) all facilities have received all approvals of
Governmental Authorities (including licenses and permits) required in
connection with the ownership or operation thereof and have been
operated and maintained in accordance with applicable laws,
ordinances, rules and regulations;
(v) there are no Contracts granting to any party or
parties the right of use or occupancy of any portion of the parcels of
Owned Property, except as set forth on Schedule 3.14(a), the Financial
Statements, or one of the other Schedules to this Agreement;
(vi) there are no outstanding options or rights of first
refusal to purchase the parcels of Owned Property, or any portion
thereof or interest therein;
(vii) there are no parties (other than the Xxxxxx Companies
and ADC and its Affiliates) in possession of the parcels of Owned
Property, other than tenants under any leases disclosed in Schedule
3.14(a) who are in possession of space to which they are entitled;
(viii) all facilities located on the parcels of Owned
Property are supplied with utilities and other services necessary for
the operation of such facilities; and
(ix) all improvements and buildings on the Owned
Property are in good repair and are safe for occupancy and use.
(b) Schedule 3.14(b) sets forth a list of all leases,
licenses or similar agreements ("Leases") to which any of the Xxxxxx Companies
or ADC is a party (copies of which have previously been furnished to Republic),
in each case, setting forth (A) the lessor and lessee thereof and the date and
term of each of the Leases, (B) the legal description, including street
address, of each property covered thereby, and (C) a brief description
(including size and function) of the principal improvements and buildings
thereon (the "Leased Premises"). The Leases are in full force and effect and
have not been amended except as set forth on Schedule 3.14(b), and no party
thereto is in default or breach under any such Lease. No event has occurred
which, with the passage of time or the giving of notice or both, would cause a
material breach of or default under any of such Leases. There is no breach or
anticipated breach by any other party to such Leases.
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3.15 GOOD TITLE TO AND CONDITION OF ASSETS
(a) The Xxxxxx Companies and ADC have good title to all
of their respective Assets (as hereinafter defined), free and clear of any
Liens or restrictions on use. For purposes of this Agreement, the term
"Assets" means all of the properties and assets of the Xxxxxx Companies and
ADC, other than the Owned Properties and the Leased Premises, whether personal
or mixed, tangible or intangible, wherever located.
(b) The Fixed Assets (as hereinafter defined) currently
in use or necessary for the business and operations of the Xxxxxx Companies or
ADC are in good operating condition, normal wear and tear excepted, and have
been maintained in all material respects in accordance with all applicable
manufacturer's specifications and warranties. For purposes of this Agreement,
the term "Fixed Assets" means all vehicles, machinery, equipment, tools,
supplies, leasehold improvements, furniture and fixtures used by or located on
the premises of any of the Xxxxxx Companies or ADC or set forth on the Current
Balance Sheet or acquired by any of the Xxxxxx Companies or ADC since the date
of the Current Balance Sheet. Schedule 3.15 lists the vehicles owned, leased
or used by the Xxxxxx Companies and ADC.
3.16 COMPLIANCE WITH LAWS.
(a) Each of the Xxxxxx Companies and ADC is and has been
in compliance in all material respects with all laws, regulations and orders
applicable to it, its business and operations (as conducted by it now and in
the past), the Assets, the Owned Properties and the Leased Premises and any
other properties and assets (in each case owned or used by it now or in the
past). Except as set forth on Schedule 3.16, none of the Xxxxxx Companies or
ADC has been cited, fined or otherwise notified of any asserted past or present
failure to comply with any laws, regulations or orders and no proceeding with
respect to any such violation is pending or threatened except to the extent
such a failure to comply would, or does, not result in a Material Adverse
Effect.
(b) None of the Xxxxxx Companies, ADC or any of their
employees or agents, has made any payment of funds in connection with their
business which is prohibited by law, and no funds have been set aside to be
used in connection with their business for any payment prohibited by law.
(c) None of the Xxxxxx Companies or ADC is subject to
any decree or injunction or material Contract in which any such company is a
party which restricts the continued operation of any business or the expansion
thereof to other geographical areas, customers and suppliers or lines of
business.
3.17 LABOR AND EMPLOYMENT MATTERS. Schedule 3.17 sets forth the
name, social security number and current rate of compensation of each of the
employees of the Xxxxxx Companies and ADC. None of the Xxxxxx Companies or ADC
is a party to or bound by any
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collective bargaining agreement or any other agreement with a labor union, and
there has been no effort by any labor union during the 24 months prior to the
date hereof to organize any employees of the Xxxxxx Company or ADC into one or
more collective bargaining units. There is no pending or threatened labor
dispute, strike or work stoppage which affects or which may affect the business
of the Xxxxxx Companies or ADC or which may interfere with their continued
operations. None of the Xxxxxx Companies or ADC nor any agent, representative
or employee thereof has within the last 24 months committed any unfair labor
practice as defined in the National Labor Relations Act, as amended, and there
is no pending or threatened charge or complaint against any of the Xxxxxx
Companies or ADC by or with the National Labor Relations Board or any
representative thereof. There has been no strike, walkout or work stoppage
involving any of the employees of the Xxxxxx Companies or ADC during the 24
months prior to the date hereof. None of the Shareholders is aware that any
executive or key employee or group of employees has any plans to terminate his,
her or their employment with any of the Xxxxxx Companies or ADC as a result of
the Mergers or otherwise. Schedule 3.17 contains information about each
contract, agreement or plan of the following nature, whether formal or
informal, and whether or not in writing, to which any of the Xxxxxx Companies
or ADC is a party or under which any of them has an obligation: (i) employment
agreements, (ii) employee handbooks, policy statements and similar plans, (iii)
noncompetition agreements and (iv) consulting agreements. Each of the Xxxxxx
Companies and ADC has complied in all material respects with applicable laws,
rules and regulations relating to employment, civil rights and equal employment
opportunities, including but not limited to, the Civil Rights Act of 1964, the
Fair Labor Standards Act, and the Americans with Disabilities Act, as amended.
3.18 EMPLOYEE BENEFIT PLANS.
(a) Employee Benefit Plans. Schedule 3.18 contains a
description of each employee benefit plan or arrangement of the Xxxxxx
Companies and ADC, including but not limited to employee pension benefit plans,
as defined in Section 3(2) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), multiemployer plans, as defined in Section 3(37) of
ERISA, employee welfare benefit plans, as defined in Section 3(1) of ERISA,
deferred compensation plans, stock option plans, bonus plans, stock purchase
plans, hospitalization, disability and other insurance plans, severance or
termination pay plans and policies, whether or not described in Section 3(3) of
ERISA, in which employees, their spouses or dependents, of any of the Xxxxxx
Companies or ADC participate ("Employee Benefit Plans") (true and accurate
copies of which, together with the most recent annual reports on Form 5500 and
summary plan descriptions with respect thereto, were furnished to Republic).
(b) Compliance with Law. With respect to each Employee
Benefit Plan (i) each has been administered in all material respects in
compliance with its terms and with all applicable laws, including, but not
limited to, ERISA and the Internal Revenue Code of 1986, as amended (the
"Code"); (ii) no actions, suits, claims or disputes are pending, or threatened;
(iii) no audits, inquiries, reviews, proceedings, claims, or demands are
pending with any governmental or regulatory agency; (iv) there are no facts
which could give rise to any material liability in the
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event of any such investigation, claim, action, suit, audit, review, or other
proceeding; (v) all material reports, returns, and similar documents required
to be filed with any governmental agency or distributed to any plan participant
have been duly or timely filed or distributed; and (vi) no "prohibited
transaction" or "reportable event" has occurred within the meaning of the
applicable provisions of ERISA or the Code.
(c) Qualified Plans. With respect to each Employee
Benefit Plan intended to qualify under Code Section 401(a) or 403(a): (i) the
Internal Revenue Service has issued a favorable determination letter, true and
correct copies of which have been furnished to Republic, that such plans are
qualified and exempt from federal income taxes; and (ii) no such determination
letter has been revoked nor has revocation been threatened, nor has any
amendment or other action or omission occurred with respect to any such plan
since the date of its most recent determination letter or application therefor
in any respect which would adversely affect its qualification or materially
increase its costs.
(d) Multiemployer Plans. With respect to any
multiemployer plan, as described in Section 4001(a)(3) of ERISA ("MPPA Plan")
(i) all contributions required to be made with respect to employees of any of
the Xxxxxx Companies or ADC have been timely paid; (ii) none of the Xxxxxx
Companies or ADC have incurred or are expected to incur, directly or
indirectly, any withdrawal liability under ERISA with respect to any such plan
(whether by reason of the transactions contemplated by the Agreement or
otherwise); and (iii) no such plan is (or is expected to be) insolvent or in
reorganization and no accumulated funding deficiency (as defined in Section 302
of ERISA and Section 412 of the Code), whether or not waived, exists or is
expected to exist with respect to any such plan.
(e) Welfare Plans. Other than as disclosed in Schedule
3.18, (i) none of the Xxxxxx Companies or ADC are obligated under any employee
welfare benefit plan as described in Section 3(1) of ERISA ("Welfare Plan"),
whether or not disclosed in Schedule 3.18, to provide medical or death benefits
with respect to any employee or former employee of any of the Xxxxxx Companies,
ADC, or their predecessors after termination of employment; and (ii) each of
the Xxxxxx Companies and ADC has complied with the notice and continuation
coverage requirements of Section 4980B of the Code and the regulations
thereunder with respect to each Welfare Plan that is, or was during any taxable
year for which the statute of limitations on the assessment of federal income
taxes remains, open, by consent or otherwise, a group health plan within the
meaning of Section 5000(b)(1) of the Code. The consummation of the
transactions contemplated by this Agreement will not entitle any individual to
severance pay, and, will not accelerate the time of payment or vesting, or
increase the amount of compensation, due to any individual.
3.19 TAX MATTERS. Except as set forth in Schedule 3.19 hereto,
all Tax Returns required to be filed prior to the date hereof with respect to
each of the Xxxxxx Companies or ADC or any of their income, properties,
franchises or operations have been timely filed, each such Tax Return has been
prepared in compliance with all applicable laws and regulations, and
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all such Tax Returns are true and accurate in all respects. All Taxes
due and payable by or with respect to each of the Xxxxxx Companies and ADC
have been paid or are accrued on the Current Balance Sheet or will be accrued
on their books and records as of the Closing. Except as set forth in Schedule
3.19 hereto: (i) with respect to each taxable period of the Xxxxxx Companies
and ADC, either such taxable period has been audited by the relevant taxing
authority or the time for assessing or collecting Taxes with respect to each
such taxable period has closed and such taxable period is not subject to review
by any relevant taxing authority; (ii) no deficiency or proposed adjustment
which has not been settled or otherwise resolved for any amount of Taxes has
been asserted or assessed by any taxing authority against any of the Xxxxxx
Companies or ADC; (iii) none of the Xxxxxx Companies or ADC have consented to
extend the time in which any Taxes may be assessed or collected by any taxing
authority; (iv) none of the Xxxxxx Companies or ADC have requested or been
granted an extension of the time for filing any Tax Return to a date later than
the Effective Time; (v) there is no action, suit, taxing authority proceeding,
or audit or claim for refund now in progress, pending or threatened against or
with respect to any of the Xxxxxx Companies or ADC regarding Taxes; (vi) none
of the Xxxxxx Companies or ADC has made an election or filed a consent under
Section 341(f) of the Code (or any corresponding provision of state, local or
foreign law) on or prior to the Effective Time; (vii) there are no Liens for
Taxes (other than for current Taxes not yet due and payable) upon the assets of
any of the Xxxxxx Companies or ADC; (viii) none of the Xxxxxx Companies or ADC
has made any payments, and none is or will become obligated (under any contract
entered into on or before the Effective Date) to make any payments, that will
be non-deductible under Section 280G of the Code (or any corresponding
provision of state, local or foreign law); and (ix) true, correct and complete
copies of all income and sales Tax Returns filed by or with respect to each of
the Xxxxxx Companies and ADC for the past three years have been furnished or
made available to Republic.
3.20 INSURANCE. Each of the Xxxxxx Companies and ADC is covered
by valid, outstanding and enforceable policies of insurance (including all
amendments, endorsements and riders thereto) issued to them by reputable
insurers covering their respective properties, assets and businesses against
risks of the nature normally insured against by corporations in the same or
similar lines of business and in coverage amounts typically and reasonably
carried by such corporations (the "Insurance Policies"). Such Insurance
Policies are in full force and effect, and all premiums due thereon have been
paid. As of the Effective Time, each of the Insurance Policies will be in full
force and effect. None of the Insurance Policies will lapse or terminate as a
result of the transactions contemplated by this Agreement. Each of the Xxxxxx
Companies and ADC have complied with the provisions of such Insurance Policies.
Schedule 3.20 contains (i) a summary description of all Insurance Policies
(copies of which have been provided to Republic) and (ii) a detailed
description of each pending claim under any of the Insurance Policies for an
amount in excess of $50,000 that relates to loss or damage to the properties,
assets or businesses of any of the Xxxxxx Companies or ADC. None of the Xxxxxx
Companies or ADC have failed to give, in a timely manner, any notice required
under any of the Insurance Policies to preserve their rights thereunder.
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3.21 RECEIVABLES. All of the Receivables (as hereinafter
defined) are valid and legally binding, represent bona fide transactions and
arose in the ordinary course of business of the Xxxxxx Companies and ADC.
Substantially all of the Receivables are good and collectible receivables, and
will be collected in full in accordance with the terms of such receivables in
all material respects (and in any event within six months following the
Closing), without setoff or counterclaims, subject to the allowance for
doubtful accounts, if any, set forth on the Current Balance Sheet as reasonably
adjusted since the date of the Current Balance Sheet in the ordinary course of
business consistent with past practice. For purposes of this Agreement, the
term "Receivables" means all receivables of the Xxxxxx Companies and ADC,
including all trade account receivables arising from the provision of services,
sale of inventory, notes receivable, and insurance proceeds receivable.
3.22 LICENSES AND PERMITS. Each of the Xxxxxx Companies and ADC
possess all material licenses and required governmental or official approvals,
permits or authorizations (collectively, the "Permits") for their respective
businesses and operations, including with respect to the operation of each of
the Owned Properties and Leased Premises. All such Permits are valid and in
full force and effect in all material respects, each of the Xxxxxx Companies
and ADC is in material compliance with the respective requirements thereof, and
no proceeding is pending or threatened to revoke or amend any of them. None of
such Permits is or will be impaired or in any way affected by the execution and
delivery of this Agreement or the consummation of the transactions contemplated
hereby.
3.23 ADEQUACY OF THE ASSETS; RELATIONSHIPS WITH CUSTOMERS AND
SUPPLIERS; AFFILIATED TRANSACTIONS. The Assets, Owned Properties and Leased
Premises constitute, in the aggregate, all of the assets and properties
necessary for the conduct of the business of the Xxxxxx Companies and ADC in
the manner in which and to the extent to which such business is currently being
conducted. No current supplier to the Xxxxxx Companies or ADC of items
essential to the conduct of their business will or has threatened to terminate
its business relationship with them for any reason. Except as set forth on
Schedule 3.23, none of the Xxxxxx Companies or ADC have any direct or indirect
interest in any customer, supplier or competitor of any of the Xxxxxx Companies
or ADC, or in any person from whom or to whom any of the Xxxxxx Companies or
ADC leases real or personal property. Except as set forth on Schedule 3.23, no
officer, director or shareholder of any of the Xxxxxx Companies or ADC, nor any
person related by blood or marriage to any such person, nor any entity in which
any such person owns any beneficial interest, is a party to any Contract or
transaction with any of the Xxxxxx Companies or ADC or has any interest in any
property used by any of the Xxxxxx Companies or ADC.
3.24 INTELLECTUAL PROPERTY. Each of the Xxxxxx Company and ADC
has full legal right, title and interest in and to all trademarks,
servicemarks, tradenames, copyrights, know-how, patents, trade secrets,
licenses (including licenses for the use of computer software programs), and
other intellectual property used in the conduct of its business (the
"Intellectual Property"). The conduct of the business of the Xxxxxx Companies
and ADC as presently conducted, and the unrestricted conduct and the
unrestricted use and exploitation of the Intellectual Property, does
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not infringe or misappropriate any rights held or asserted by any Person, and no
Person is infringing on the Intellectual Property. No payments are required
for the continued use of the Intellectual Property. None of the Intellectual
Property has ever been declared invalid or unenforceable, or is the subject of
any pending or threatened action for opposition, cancellation, declaration,
infringement, or invalidity, unenforceability or misappropriation or like
claim, action or proceeding.
3.25 CONTRACTS. Schedule 3.25 sets forth a description of each
Contract to which any of the Xxxxxx Companies or ADC is a party or by which any
of them or their properties and assets are bound and which is material to their
business, assets, properties or prospects (the "Designated Contracts"), true
and correct copies of which have been provided to Republic. The copy of each
Designated Contract furnished to Republic is a true and complete copy of the
document it purports to represent and reflects all amendments thereto made
through the date of this Agreement. Except as set forth on Schedule 3.25, none
of the Xxxxxx Companies or ADC has violated any of the material terms or
conditions of any Designated Contract or any term or condition which would
permit termination or material modification of any Designated Contract, and all
of the covenants to be performed by any other party thereto have been fully
performed and there are no claims for breach or indemnification or notice of
default or termination under any Designated Contract. Except as set forth on
Schedule 3.25, no event has occurred which constitutes, or after notice or the
passage of time, or both, would constitute, a material default by any of the
Xxxxxx Companies or ADC under any Designated Contract, and no such event has
occurred which constitutes or would constitute a material default by any other
party. None of the Xxxxxx Companies or ADC is subject to any liability or
payment resulting from renegotiation of amounts paid it under any Designated
Contract. As used in this Section, Designated Contracts shall include, without
limitation, (a) loan agreements, indentures, mortgages, pledges,
hypothecations, deeds of trust, conditional sale or title retention agreements,
security agreements, equipment financing obligations or guaranties, or other
sources of contingent liability in respect of any indebtedness or obligations
to any other Person, or letters of intent or commitment letters with respect to
same; (b) contracts obligating any of the Xxxxxx Companies or ADC to provide
products or services for a period of one year or more, excluding standard waste
collection and disposal contracts entered into in the ordinary course of
business without material modification from the preprinted forms used by the
Xxxxxx Companies and ADC in the ordinary course of their business; (c) leases
of real property, and leases of personal property not cancelable without
penalty on notice of sixty (60) days or less or calling for payment of an
annual gross rental exceeding Fifty Thousand Dollars ($50,000.00); (d)
distribution, sales agency or franchise or similar agreements, or agreements
providing for an independent contractor's services, or letters of intent with
respect to same; (e) employment agreements, management service agreements,
consulting agreements, confidentiality agreements, non-competition agreements
and any other agreements relating to any employee, officer or director of any
of the Xxxxxx Companies or ADC; (f) licenses, assignments or transfers of
trademarks, trade names, service marks, patents, copyrights, trade secrets or
know how, or other agreements regarding proprietary rights or intellectual
property; (g) any Contract relating to pending capital expenditures by any of
the Xxxxxx Companies or ADC; and (h) other material Contracts or
understandings, irrespective of
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subject matter and whether or not in writing, not entered into in the ordinary
course of business by any of the Xxxxxx Companies or ADC and not otherwise
disclosed on the Schedules.
3.26 CUSTOMER LISTS AND RECURRING REVENUE. Schedule 3.26 is a
true, correct and complete list of each municipality, county or city
(collectively, the "Customers") which has entered into existing valid and
enforceable long-term (i.e., more than one year) waste collection and
disposal, recycling or other franchises or agreements with any one or more of
the Xxxxxx Companies or ADC. True, correct and complete copies of such
franchises and agreements, and any ordinances relating thereto, have been
furnished by the Shareholders to Republic. Other than the Customers listed on
Schedule 3.26, no customer of any of the Xxxxxx Companies or ADC as of the date
of this Agreement accounts for more than 1% of their combined annual revenue.
Schedule 3.26 sets forth each Customer's name, term of franchise or agreement,
and type of service.
3.27 ACCURACY OF REPRESENTATION FURNISHED BY THE SHAREHOLDERS.
To the knowledge of the Shareholders, no representation made by the
Shareholders to Republic in this Agreement, contains or shall contain any
untrue statement of a material fact or omits or shall omit any material fact
necessary to make the representation not misleading. The Shareholders have
provided Republic with true, accurate and complete copies of all documents
listed or described in the various Schedules attached hereto.
3.28 INVESTMENT INTENT; ACCREDITED INVESTOR STATUS; SECURITIES
DOCUMENTS. Each of the Shareholders is acquiring the Republic Shares hereunder
for his, her or its own account for investment and not with a view to, or for
the sale in connection with, any distribution of any of the Republic Shares,
except in compliance with applicable state and federal securities laws. Each
of the Shareholders has had the opportunity to discuss the transactions
contemplated hereby with Republic and has had the opportunity to obtain such
information pertaining to the Republic Companies as has been requested,
including but not limited to filings made by Republic with the SEC under the
Exchange Act. Each of the Shareholders is an "accredited investor" within the
meaning of Regulation D promulgated under the Securities Act, and has such
knowledge and experience in business or financial matters that he is capable of
evaluating the merits and risks of an investment in the Republic Shares.
3.29 BUSINESS LOCATIONS. As of the date hereof, the Xxxxxx
Companies and ADC have no office or place of business other than as identified
on Schedules 3.14(a) and 3.14(b) and each of the Xxxxxx Companies' and ADC's
principal places of business and chief executive offices (as such terms are
used in subsection 9-401 of the Uniform Commercial Code as enacted in the State
of Texas as of the date hereof) are indicated on Schedule 3.14(a) or 3.14(b),
and, except for equipment leased to customers in the ordinary course of
business, all locations where the equipment, inventory, chattel paper and books
and records of the Xxxxxx Companies and ADC are located as of the date hereof
are fully identified on Schedules 3.14(a) and 3.14(b).
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3.30 NAMES; PRIOR ACQUISITIONS. All names under which any of the
Xxxxxx Companies and ADC does business as of the date hereof are specified on
Schedule 3.30. Except as set forth on Schedule 3.30, none of the Xxxxxx
Companies or ADC has changed its name or used any assumed or fictitious name,
or been the surviving entity in a merger, acquired any business or changed its
principal place of business or chief executive office, within the past three
years.
3.31 NO COMMISSIONS. Except for Bear Xxxxxxx & Co. being
retained as financial advisors to the Xxxxxx Companies and ADC, none of the
Xxxxxx Companies or ADC or Shareholders has incurred any obligation for any
finder's or broker's or agent's fees or commissions or similar compensation in
connection with the transactions contemplated hereby.
ARTICLE IV
CONDUCT OF BUSINESS PENDING THE MERGER
4.1 CONDUCT OF BUSINESS BY THE XXXXXX COMPANIES PENDING THE
MERGERS. Except as set forth on Schedule 4.1, each of the Xxxxxx Companies
covenants and agrees that, between the date of this Agreement and the Effective
Time, the business of the Xxxxxx Companies and ADC shall be conducted only in,
and the Xxxxxx Companies and ADC shall not take any material action except in,
the ordinary course of business, consistent with past practice. Each of the
Xxxxxx Companies and ADC shall use their reasonable best efforts to preserve
intact their respective business organizations, to keep available the services
of their current officers, employees and consultants, and to preserve their
present relationships with customers, suppliers and other persons with which
they have significant business relations. By way of amplification and not
limitation, except as contemplated by this Agreement, each of the Xxxxxx
Companies and ADC shall not, between the date of this Agreement and the
Effective Time, directly or indirectly, do or propose or agree to do any of the
following without the prior written consent of Republic (such consent not to be
unreasonably withheld):
(a) amend or otherwise change its articles of
incorporation or bylaws or equivalent organizational documents, except
to remove restrictions on transferability of shares;
(b) issue, sell, pledge, dispose of, encumber, or,
authorize the issuance, sale, pledge, disposition, grant or
encumbrance of (i) any shares of its capital stock of any class, or
any options, warrants, convertible securities or other rights of any
kind to acquire any shares of such capital stock, or any other
ownership interest, of it or (ii) any of its assets, tangible or
intangible, except in the ordinary course of business consistent with
past practice;
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(c) declare, set aside, make or pay any dividend or other
distribution, payable in cash, stock, property or otherwise, with
respect to any of its capital stock;
(d) reclassify, combine, split, subdivide or redeem,
purchase or otherwise acquire, directly or indirectly, any of its
capital stock;
(e) (i) acquire (including, without limitation, for cash
or shares of stock), by merger, consolidation, or acquisition of stock
or assets) any interest in any corporation, partnership or other
business organization or division thereof or any assets, or make any
investment either by purchase of stock or securities, contributions of
capital or property transfer, or, except in the ordinary course of
business, consistent with past practice, purchase any property or
assets of any other Person, (ii) incur any indebtedness for borrowed
money or issue any debt securities or assume, guarantee or endorse or
otherwise as an accommodation become responsible for, the obligations
of any Person, or make any loans or advances, or (iii) enter into any
Contract other than in the ordinary course of business, consistent
with past practice;
(f) increase the compensation payable or to become
payable to its officers or employees, or, except as presently bound to
do, grant any severance or termination pay to, or enter into any
employment or severance agreement with, any of its directors, officers
or other employees, or establish, adopt, enter into or amend or take
any action to accelerate any rights or benefits which any collective
bargaining, bonus, profit sharing, trust, compensation, stock option,
restricted stock, pension, retirement, deferred compensation,
employment, termination, severance or other plan, agreement, trust,
fund, policy or arrangement for the benefit of any directors, officers
or employees;
(g) take any action other than in the ordinary course of
business and in a manner consistent with past practice with respect to
accounting policies or procedures;
(h) except for payment of fees of financial advisors,
attorneys and accountants and of filing fees under the HSR Act in
connection with the transactions contemplated by this Agreement, pay,
discharge or satisfy any existing claims, liabilities or obligations
(absolute, accrued, asserted or unasserted, contingent or otherwise),
other than the payment, discharge or satisfaction in the ordinary
course of business and consistent with past practice of due and
payable liabilities reflected or reserved against in its financial
statements, as appropriate, or liabilities incurred after the date
hereof in the ordinary course of business and consistent with past
practice;
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(i) increase or decrease prices charged to its customers,
except for previously announced price changes, or take any other
action which might reasonably result in any material loss of customers
through non-renewal or termination of service contracts or other
causes; or
(j) agree, in writing or otherwise, to take or authorize
any of the foregoing actions or any action which would make any
representation or warranty in Article III untrue or incorrect.
ARTICLE V
ADDITIONAL AGREEMENTS
5.1 FURTHER ASSURANCES. Each party shall execute and deliver
such additional instruments and other documents and shall take such further
actions as may be necessary or appropriate to effectuate, carry out and comply
with all of the terms of this Agreement and the transactions contemplated
hereby.
5.2 COMPLIANCE WITH COVENANTS. The Shareholders shall use their
reasonable best efforts to cause the Xxxxxx Companies and ADC to comply with
all of the respective covenants of the Xxxxxx Companies and ADC under this
Agreement.
5.3 COOPERATION. Each of the parties agrees to cooperate with
the other in the preparation and filing of all forms, notifications, reports
and information, if any, required or reasonably deemed advisable pursuant to
any law, rule or regulation or the rules of any exchange on which the Republic
Common Stock is listed or the Nasdaq Stock Market in connection with the
transactions contemplated by this Agreement and to use their respective best
efforts to agree jointly on a method to overcome any objections by any
Governmental Authority to any such transactions.
5.4 HSR ACT AND OTHER ACTIONS. Each of the parties hereto shall
(i) make promptly (and in no event later than five (5) business days following
the date hereof) its respective filings, if any, and thereafter make any other
required submissions, under the HSR Act, with respect to the transactions
contemplated hereby, and (ii) use its reasonable best efforts to take, or cause
to be taken, all appropriate actions, and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated herein, including,
without limitation, using its best efforts to obtain all licenses, permits,
consents, approvals, authorizations, qualifications and orders of any
Governmental Authority and parties to Contracts with any of the Xxxxxx
Companies or ADC as are necessary for the consummation of the transactions
contemplated hereby. Each of parties shall make on a prompt and timely basis
all governmental or regulatory notifications and filings required to be made by
it for the consummation of the transactions contemplated hereby. The parties
also agree
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to use best efforts to defend all lawsuits or other legal proceedings
challenging this Agreement or the consummation of the transactions contemplated
hereby and to lift or rescind any injunction or restraining order or other
order adversely affecting the ability of the parties to consummate the
transactions contemplated hereby.
5.5 ACCESS TO INFORMATION. From the date hereof to the
Effective Time, each of the Xxxxxx Companies and ADC shall (and shall cause its
and their directors, officers, employees, auditors, counsel and agents) to
afford Republic and Republic's officers, employees, auditors, counsel and
agents reasonable access at all reasonable times to its and their properties,
offices, and other facilities, to its and their officers and employees and to
all books and records, and shall furnish such persons with all financial,
operating and other data and information as may be requested. No information
provided to or obtained by Republic shall affect any representation or warranty
in this Agreement.
5.6 NOTIFICATION OF CERTAIN MATTERS. The Shareholders shall
give prompt notice to Republic of the occurrence or non-occurrence of any event
which would likely cause any representation or warranty contained herein to be
untrue or inaccurate in any material respect, or any covenant, condition, or
agreement contained herein not to be complied with or satisfied in all material
respects.
5.7 TAX TREATMENT. Republic, the Xxxxxx Companies and the
Shareholders will use their respective best efforts to cause the Mergers to
qualify as reorganizations under the provisions of Section 368(a) of the Code
and will not take any action after the Mergers are effected to cause the
Mergers to lose their tax-free status. All parties hereto agree to file the
Plans of Merger with their respective federal income tax returns for the year
in which the Mergers are effective, and to comply with the reporting
requirements of Treasury Regulation 1.368-3.
5.8 CONFIDENTIALITY; PUBLICITY. Except as may be required by
law or as otherwise permitted or expressly contemplated herein, no party hereto
or their respective Affiliates, employees, agents and representatives shall
disclose to any third party this Agreement or the subject matter or terms
hereof without the prior consent of the other parties hereto. No press release
or other public announcement related to this Agreement or the transactions
contemplated hereby shall be issued by any party hereto without the prior
approval of the other parties, except that Republic may make such public
disclosure which it believes in good faith to be required by law or by the
terms of any listing agreement with or requirements of a securities exchange
(in which case Republic will consult with Xxxxxx Xxxxxx or another officer of
JCD prior to making such disclosure).
5.9 NO OTHER DISCUSSIONS. The Xxxxxx Companies, the
Shareholders, and their respective Affiliates, employees, agents and
representatives will not (i) initiate, encourage the initiation by others of
discussions or negotiations with third parties or respond to solicitations by
third persons relating to any merger, sale or other disposition of any
substantial part of the assets, business or properties of any of the Xxxxxx
Companies or ADC (whether by merger,
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consolidation, sale of stock or otherwise) or (ii) enter into any agreement or
commitment (whether or not binding) with respect to any of the foregoing
transactions. The Shareholders will immediately notify Republic if any third
party attempts to initiate any solicitation, discussion or negotiation with
respect to any of the foregoing transactions.
5.10 RESTRICTIVE COVENANTS. In order to assure that Republic
will realize the benefits of the Mergers and in consideration of being employed
by the Xxxxxx Companies and/or Republic after completion of the Merger, each of
Xxxxxx X. Xxxxxx and Xxx X. Xxxxxx jointly and severally agrees with Republic
that he will not for a period of three years from the later of the Effective
Time or the date he ceases to be an employee of the Xxxxxx Companies and/or
Republic:
(a) directly or indirectly, alone or as a partner, joint
venturer, officer, director, employee, consultant, agent, independent
contractor or stockholder of any company or business, engage in any
business activity in the State of Texas which is directly or
indirectly in competition with the business conducted by the Xxxxxx
Companies or ADC at the Effective Time; provided, however, that, the
beneficial ownership of less than five percent (5%) of the shares of
stock of any corporation having a class of equity securities actively
traded on a national securities exchange or over-the-counter market
shall not be deemed, in and of itself, to violate the prohibitions of
this Section Rider 5.10(a) and provided, further, that Xxxxxx X.
Xxxxxx and Xxx X. Xxxxxx may continue to engage in the ownership and
operation of businesses engaged in liquid waste hauling, portable
toilets, and trash bags, through Alco Environmental, Inc., Xxxxxx
Distributing, Inc. or other entities controlled by them;
(b) directly or indirectly (i) induce any Person which is
a customer of any of the Xxxxxx Companies or ADC at the Effective Time
to patronize any business directly or indirectly in competition with
the business conducted by any of the Xxxxxx Companies or ADC; (ii)
canvass, solicit or accept from any Person which is a customer of any
of the Xxxxxx Companies or ADC, any such competitive business, or
(iii) request or advise any Person which is a customer of any of the
Xxxxxx Companies or ADC at the Effective Time to withdraw, curtail or
cancel any such customer's business with the Xxxxxx Companies, ADC or
their successors;
(c) directly or indirectly employ, or knowingly permit
any company or business directly or indirectly controlled by him, to
employ, any person who was employed by any of the Xxxxxx Companies or
ADC at or within six months prior to the Effective Time, or in any
manner seek to induce any such person to leave his or her employment;
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(d) directly or indirectly, at any time following the
Effective Time, in any way utilize, disclose, copy, reproduce or
retain in his possession any of the Xxxxxx Companies' or ADC's
proprietary rights or records, including, but not limited to, any of
their customer lists.
Xxxxxx X. Xxxxxx and Xxx X. Xxxxxx agree and acknowledge that the restrictions
contained in this Section 5.10 are reasonable in scope and duration and are
necessary to protect Republic after the Effective Time. If any provision of
this Section as applied to any party or to any circumstance is adjudged by a
court to be invalid or unenforceable, the same will in no way affect any other
circumstance or the validity or enforceability of this Agreement. If any such
provision, or any part thereof, is held to be unenforceable because of the
duration of such provision or the area covered thereby, the parties agree that
the court making such determination shall have the power to reduce the duration
and/or area of such provision, and/or to delete specific words or phrases, and
in its reduced form, such provision shall then be enforceable and shall be
enforced. The parties agree and acknowledge that the breach of this Section
will cause irreparable damage to Republic and upon breach of any provision of
this Section, Republic shall be entitled to injunctive relief, specific
performance or other equitable relief; provided, however, that, this shall in
no way limit any other remedies which Republic may have (including, without
limitation, the right to seek monetary damages).
5.11 ENVIRONMENTAL ASSESSMENT. Republic shall be entitled to
have conducted prior to Closing an environmental assessment of the Owned
Properties and Leased Premises (hereinafter referred to as "Environmental
Assessment"). The Environmental Assessment may include, but not be limited to,
a physical examination of the Owned Property or Leased Premises, and any
structures, facilities, or equipment located thereon, soil samples, ground and
surface water samples, storage tank testing, review of pertinent records,
documents, and Licenses of the Xxxxxx Companies and ADC. The Shareholders
shall provide Republic or its designated agents or consultants with the access
to such property which Republic, its agents or consultants require to conduct
the Environmental Assessment. If the Environmental Assessment identifies
environmental contamination which requires remediation or further evaluation
under the Environmental, Health, and Safety Laws or if the results of the
Environmental Assessment are otherwise not satisfactory to Republic in its sole
discretion, then (i) Republic may elect not to close the transactions
contemplated by this Agreement, or (ii) Republic may require the costs of such
remediation and evaluation shall be considered to be Indemnifiable Damages
under Article IX hereunder in which case the Shareholders may elect not to
close the transactions contemplated by this Agreement. Republic's failure or
decision not to conduct any such Environmental Assessment shall not affect any
representation or warranty of the Shareholders under this Agreement.
5.12 RELEASE OF GUARANTEES. After the Closing, Republic
covenants and agrees to take promptly all action necessary to cause any and all
personal guarantees by any of the Shareholders of any indebtedness for borrowed
money of any of the Xxxxxx Companies and ADC to be released by the holder(s) of
such guarantees.
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5.13 TRADING IN REPUBLIC COMMON STOCK. Except as otherwise
expressly consented to by Republic, from the date of this Agreement until the
Effective Time, none of the Xxxxxx Companies, ADC or the Shareholders (nor any
Affiliates thereof) will directly or indirectly purchase or sell (including
short sales) any shares of Republic Common Stock in any transactions effected
on the Nasdaq Stock Market, the Toronto Stock Exchange or otherwise.
5.14 EARNINGS RELEASE. Republic agrees to issue a press release
reporting the earnings of the combined operations of Republic and the Xxxxxx
Companies as promptly as possible after the first calendar quarter end
subsequent to the Effective Date which quarter contains at least thirty days of
combined operations.
5.15 EXTRANEOUS ASSETS. On or prior to the Closing Date, the
Shareholders of Trashaway, Xxx Tex, and EETL II shall have certain of their
shares redeemed and in exchange such corporations shall transfer those certain
assets listed on Exhibit "A" to Schedule 4.1 (the "Extraneous Redemption
Assets") to such Shareholders, on an "as is, where is" basis with no warranties
(other than in connection with title transfers). On or prior to the Closing
Date, JCD shall sell and certain of the Shareholders shall purchase from JCD
those certain assets listed on Exhibit "B" to Schedule 4.1 (the "Extraneous
Purchased Assets"), on an "as is, where is" basis with no warranties (other
than in connection with title transfers), which includes the 6 D Ranch and
related ranch equipment, a personal residence in San Angelo, Texas, and all
amounts recorded on the books of JCD as "Advances to affiliates", for an
aggregate purchase price of Three Million Three Hundred Seventy-Eight Thousand
One Hundred Sixty-Six and 84/100 Dollars ($3,378,166.84) (the "Extraneous
Assets Purchase Price"). On the Closing Date or earlier date of the sale by
JCD to such Shareholders of the Extraneous Purchased Assets, the Shareholders
purchasing the Extraneous Purchased Assets shall execute and deliver to JCD one
or more promissory notes payable to JCD in the aggregate principal amount equal
to the Extraneous Assets Purchase Price (the "Notes"). The Notes shall bear
interest at the rate of eight percent (8%) per annum on the principal amounts
outstanding thereunder from the date of such sale until such date as is thirty
(30) days subsequent to the date on which Republic issues the earnings release
referred to in Section 5.14 (the "Due Date"), and if the full amount of all
principal and accrued interest is not paid in full on the Due Date to JCD by
the makers of the Notes, then the Notes shall be in default and the unpaid
amounts shall thereafter bear interest at the maximum lawful rate until such
amounts and all such default interest is paid in full. The Notes may be prepaid
prior to the Due Date, in whole or in part, without penalty or premium.
Payment of any of the Notes which is not executed and delivered by Xxxxxx X.
Xxxxxx or Xxx X. Xxxxxx shall be personally guaranteed by Xxxxxx X. Xxxxxx to
JCD.
5.16 EMPLOYMENT OF OFFICERS. Republic agrees to cause the Xxxxxx
Companies to continue to employ, at the same base salary levels as were in
effect on June 30, 1995, all officers and key management personnel of the
Xxxxxx Companies who are not Shareholders, for a period of at least twelve
months following the Closing Date, provided that except for the obligations to
be undertaken pursuant to the Rabbi Trust described in Schedule 4.1, various
benefits and "perqs" payable or granted to such officers may be changed or
eliminated to conform to Republic's
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policies, on a basis and in a manner comparable to that of similarly situated
officers of other comparable waste collection subsidiaries of Republic,
including the elimination or reduction of cash compensation otherwise payable
as an annual or special bonus, and the inclusion of such officers as
participants in Republic's stock option plans. The personnel covered by this
convenant are those listed on Schedule 4.1, Xxxxx X. Xxxxxx, Xxxxxx Xxxxx, Xxx
Xxxxxxxxxxx and Xxxxxx Xxxx.
ARTICLE VI
CONDITIONS TO THE OBLIGATIONS OF THE REPUBLIC COMPANIES
The obligations of the Republic Companies to effect the Mergers shall
be subject to the fulfillment at or prior to the Effective Time of the
following conditions, any or all of which may be waived in whole or in part by
the Republic Companies:
6.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES AND COMPLIANCE
WITH OBLIGATIONS. The representations and warranties of the Shareholders
contained in this Agreement shall be true and correct at and as of the
Effective Time with the same force and effect as though made at and as of that
time except (i) for changes specifically permitted by or disclosed pursuant to
this Agreement, and (ii) that those representations and warranties which
address matters only as of a particular date shall remain true and correct as
of such date. Each of the Xxxxxx Companies and the Shareholders shall have
performed and complied with all of their respective obligations required by
this Agreement to be performed or complied with at or prior to the Effective
Time. Each of the Xxxxxx Companies and the Shareholders shall have delivered
to the Republic Companies a certificate, dated as of the Effective Time, duly
signed (in the case of each of the Xxxxxx Companies, by its Chief Executive
Officer and Chief Financial Officer), certifying that such representations and
warranties are true and correct and that all such obligations have been
performed and complied with.
6.2 NO MATERIAL ADVERSE CHANGE OR DESTRUCTION OF PROPERTY.
Between the date hereof and the Effective Time, (i) there shall have been no
Material Adverse Change to any of the Xxxxxx Companies or ADC, (ii) there shall
have been no adverse federal, state or local legislative or regulatory change
affecting in any material respect the services, products or business of any of
the Xxxxxx Companies or ADC, and (iii) none of the properties and assets of any
of the Xxxxxx Companies or ADC shall have been damaged by fire, flood,
casualty, act of God or the public enemy or other cause (regardless of
insurance coverage for such damage) which damages may have a Material Adverse
Effect thereon, and there shall have been delivered to the Republic Companies a
certificate to that effect, dated the Effective Time and signed by or on behalf
of the Xxxxxx Companies.
6.3 CORPORATE CERTIFICATE. The Shareholders shall have
delivered to the Republic Companies (i) copies of the articles of incorporation
and bylaws of each of the Xxxxxx Companies
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and ADC as in effect immediately prior to the Effective Time, (ii) copies of
resolutions adopted by the Board of Directors and shareholders of each of the
Xxxxxx Companies and ADC authorizing the transactions contemplated by this
Agreement, and (iii) a certificate of good standing of each of the Xxxxxx
Companies and ADC issued by the Secretary of State of the State of Texas and
each other state in which such companies are qualified to do business as of
a date not more than thirty days prior to the Effective Time, certified in each
case as of the Effective Time by the Secretary of each such company as being
true, correct and complete.
6.4 OPINION OF COUNSEL. The Republic Companies shall have
received an opinion dated as of the Effective Time from counsel for the Xxxxxx
Companies and the Shareholders, in form and substance acceptable to the
Republic Companies, to the effect that:
(i) each of the Xxxxxx Companies and ADC is a
corporation duly organized and existing and in good standing under the
laws of the State of Texas and is authorized to carry on the business
now conducted by it and to own or lease the properties now owned or
leased by it;
(ii) each of the Xxxxxx Companies and ADC has
obtained all necessary authorizations and consents of its Board of
Directors and the Shareholders to effect the Mergers;
(iii) All issued and outstanding shares of
capital stock of each of the Xxxxxx Companies and ADC are owned as set
forth on Schedule 3.5 hereto;
(iv) Except as set forth in Schedule 3.12, such
counsel does not know of any litigation, proceeding or investigation
pending or threatened which might result in any material adverse
change in the properties, business or prospects or in the condition of
the Xxxxxx Companies or ADC, or which questions the validity of this
Agreement;
(v) Such counsel does not know of any event has
occurred or state of facts which exists which would constitute a
breach of any of the representations and warranties made by the
Shareholders pursuant to Article III of this Agreement;
(vi) This Agreement is a valid and binding
obligation of each of the Xxxxxx Companies, ADC and the Shareholders,
and enforceable against each of the Xxxxxx Companies and the
Shareholders in accordance with its terms, except as enforcement may
be limited by general equitable principles or by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting the
enforcement of creditors' rights generally.
6.5 CONSENTS. The Xxxxxx Companies and ADC shall have received
consents to the transactions contemplated hereby and waivers of rights
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or obligations of the Xxxxxx Companies or ADC from any person, including any of
the Customers (specifically including without limitation the City of Grand
Prairie), from whom such consent or waiver is required under any Designated
Contract or instrument as of a date prior to the Effective Time, or who, as a
result of the transactions contemplated hereby, would have such rights to
terminate or modify any material rights or obligations of the Xxxxxx Companies
or ADC from any person, including any of the Customers (specifically including
without limitation the City of Grand Prairie), from whom such consent or waiver
is required under any Designated Contract or instrument as of a date prior to
the Effective Time, or who, as a result of the transactions contemplated
hereby, would have such rights to terminate or modify such Contracts or
instruments, either by the terms thereof or as a matter of law. In addition,
ADC shall have received a written waiver, consent or modification of or
relating to its franchise agreement with the City of Arlington eliminating or
modifying to Republic's satisfaction the requirement thereof that particular
individuals at all times remain as an officer of ADC, without imposing any
similar requirement relating to personal services to be provided under such
franchise by Xxxxxx X. Xxxxxx or Xxx X. Xxxxxx or any other individual.
6.6 SECURITIES LAWS. Republic shall have received all necessary
consents and otherwise complied with any state Blue Sky or securities laws
applicable to the issuance of the Republic Shares, in connection with the
transactions contemplated hereby.
6.7 POOLING LETTERS. Republic shall have received a copy of a
letter from Xxxxxxx Xxxxxx & Associates, LLP, independent certified public
accountants for the Xxxxxx Companies, dated the Effective Time, and addressed
to the Xxxxxx Companies, in form and substance 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
Xxxxxx Companies and ADC which would, and the ownership structure and
attributes of the Xxxxxx Companies and ADC would not, proscribe the
transactions contemplated hereby, if consummated, from being considered as a
pooling of interests business combination. Republic shall have received from
Xxxxxx Xxxxxxxx LLP, a letter dated the Effective Time, confirming that the
transactions contemplated hereby, if consummated, can properly be accounted for
as a pooling of interests combination in accordance with GAAP and the criteria
of Accounting Principles Board Opinion No. 16 and the regulations of the SEC.
6.8 RULE 145 UNDERTAKINGS. At or prior to the Closing, the
Shareholders shall have delivered to Republic a letter agreement relating to
Rule 145 under the Securities Act and "pooling of interests" criteria, in form
and substance satisfactory to the Republic Companies.
6.9 XXXXXX COMPANIES STOCK. At the Closing, each of the
Shareholders shall have delivered to Republic all certificates evidencing the
shares of capital stock of any of the Xxxxxx Companies held by him, her or it.
6.10 STOCK POWERS. At the Closing, each of the Shareholders
shall have delivered to Republic, for use in connection with the Held Back
Shares, ten stock powers executed in blank, with signatures guaranteed.
6.11 NO ADVERSE LITIGATION. There shall not be pending or
threatened any action or proceeding by or before any court or other
governmental body which shall seek to restrain, prohibit, invalidate or collect
damages arising out of the Mergers or any other transaction
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contemplated hereby, and which, in the judgment of Republic, makes it
inadvisable to proceed with the Mergers and other transactions contemplated
hereby.
6.12 HSR ACT WAITING PERIOD. Any applicable HSR Act waiting
period shall have expired or been terminated.
6.13 BOARD APPROVAL. The Board of Directors of Republic shall
have authorized and approved this Agreement, the Mergers and transactions
contemplated hereby.
6.14 EXTRANEOUS ASSETS. At or prior to the Closing, the
Extraneous Redeemed Assets shall have been transferred in accordance with
Section 5.15, and the Extraneous Purchased Assets shall have been sold in
accordance with Section 5.15, and the Shareholders who purchased the Extraneous
Purchased Assets shall have executed and delivered to JCD the Notes, and, if
applicable, Xxxxxx X. Xxxxxx shall have executed and delivered to JCD his
personal guaranty of payment of the Notes in accordance with Section 5.15.
6.15 EMPLOYMENT AGREEMENTS. Xxxxxx X. Xxxxxx and Xxx X. Xxxxxx
shall have entered into employment agreements with Republic on terms and
conditions reasonably satisfactory to Republic, including provisions which
allow for Republic to terminate either's employment for good cause or upon a
change of control of Republic or of its waste collection companies as a group,
as well as reasonable covenants not to compete with Republic and not to solicit
customers or employees of the Xxxxxx Companies during their respective terms of
employment and for three years thereafter.
ARTICLE VII
CONDITIONS TO THE OBLIGATIONS OF
THE XXXXXX COMPANIES AND THE SHAREHOLDERS
The obligations of the Xxxxxx Companies and the Shareholders to effect
the Mergers shall be subject to the fulfillment at or prior to the Effective
Time of the following conditions, any or all of which may be waived in whole or
in part by the Xxxxxx Companies and the Shareholders:
7.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES AND COMPLIANCE
WITH OBLIGATIONS. The representations and warranties of each of the Republic
Companies contained in this Agreement shall be true and correct at and as of
the Effective Time with the same force and effect as though made at and as of
that time except (i) for changes specifically permitted by or disclosed
pursuant to this Agreement, and (ii) that those representations and warranties
which address matters only as of a particular date shall remain true and
correct as of such date. Each of the Republic Companies shall have performed
and complied with all of its obligations required by this Agreement to be
performed or complied with at or prior to the Effective Time. Each of the
Republic Companies shall have delivered to the Company a certificate, dated as
of the
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Effective Time, and signed by an executive officer, certifying that such
representations and warranties are true and correct and that all such
obligations have been performed and complied with.
7.2 RULE 145 UNDERTAKINGS. At or prior to the Closing, Republic
shall have delivered to the Shareholders a letter agreement relating to Rule
145 under the Securities Act and "pooling of interests" criteria, in form and
substance satisfactory to the Shareholders.
7.3 REPUBLIC SHARES. At the Closing, Republic shall have issued
all of the Republic Shares and shall have delivered to the Shareholders (i)
certificates representing the Republic Shares issued to them hereunder, other
than the Held Back Shares, and (ii) copies of stock certificates representing
the Held Back Shares issued to them.
7.4 NO ADVERSE LITIGATION. There shall not be pending or
threatened any action or proceeding by or before any court or other
governmental body which shall seek to restrain, prohibit, invalidate or collect
damages arising out of the Mergers or any other transaction contemplated
hereby, and which in the judgment of the Shareholders makes it inadvisable to
proceed with the Mergers and other transactions.
7.5 HSR ACT WAITING PERIOD. Any applicable HSR Act Waiting
Period shall have expired or been terminated.
7.6 OPINION OF COUNSEL. The Shareholders shall have received an
opinion of counsel dated as of the Effective time from counsel for Republic, in
form and substance acceptable to the Shareholders, to the effect that:
(i) Republic and the Republic Merger Subs each is a
corporation duly organized and existing and in good standing under the
laws of the State of Delaware with respect to Republic and the State
of Texas with respect to the Republic Merger Subs;
(ii) Republic and each of the Republic Merger Subs has
obtained all necessary authorizations and consents of their respective
Boards of Directors to effect the Mergers;
(iii) This Agreement is a valid and binding obligation of
Republic, and enforceable against Republic in accordance with its
terms, except as enforcement may be limited by general equitable
principles or by bankruptcy, insolvency, reorganization, moratorium or
other laws affecting the enforcement of creditors' rights generally;
and
(iv) The Republic Shares are validly issued, fully paid
and non-assessable shares of Republic Common Stock.
7.7 EMPLOYMENT AGREEMENTS. Republic shall have entered into
employment agreements with Xxxxxx X. Xxxxxx and Xxx X. Xxxxxx on terms and
conditions reasonably
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satisfactory to Xxxxxx X. Xxxxxx and Xxx X. Xxxxxx, including provisions that
set Xxxxxx X. Xxxxxx'x salary at $15,000 per month and Xxx X. Xxxxxx'x salary
at $14,000 per month, and that obligate them to perform services and undertake
responsibilities and duties similar to those which they presently perform and
undertake, provided that various benefits and "perqs" payable or granted to
them may be changed or eliminated to conform to Republic's policies, on a basis
and in a manner comparable to that of similarly situated officers of other
comparable waste collection subsidiaries of Republic, including the elimination
or reduction of cash compensation otherwise payable as an annual or special
bonus, and the inclusion of such officers as participants in Republic's stock
option plans. Such employment agreements will be for an initial term of five
years, renewable for an additional term of five years on terms mutually
satisfactory to Republic and them.
ARTICLE VIII
REGISTRATION RIGHTS
The Shareholders shall have the following registration rights with
respect to the Republic Shares issued to them hereunder:
8.1 REGISTRATION RIGHTS FOR REPUBLIC SHARES; FILING OF
REGISTRATION STATEMENT. Republic will utilize its reasonable best efforts to
cause, as soon as practicable following the Effective Time, a registration
statement to be filed under the Securities Act or an existing registration
statement to be amended for the purpose of registering the Republic Shares for
resale by a Holder thereof (the "Registration Statement"). For purposes of
this Article, a person is deemed to be a "Holder" of Republic Shares whenever
such person is the record owner of Republic Shares. Republic will use its
reasonable best efforts to (i) have the Registration Statement become effective
and cause the Republic Shares to be registered under the Securities Act, and
registered, qualified or exempted under the state securities laws of such
jurisdictions as any Holder reasonably requests, as soon as is reasonably
practicable; (ii) cause the Republic Shares to be listed on the Nasdaq Stock
Market or such other national securities exchange on which Republic Common
Stock is then listed and obtain all approvals from the Nasdaq Stock Market or
such exchange for trading thereon; (iii) provide a transfer agent and registrar
for the Republic Shares; and (iv) upon the sale of any Republic Shares pursuant
to such registration statement, remove all restrictive legends from all
certificates or other instruments evidencing the Republic Shares.
8.2 EXPENSES OF REGISTRATION. Republic shall pay all expenses
incurred by Republic in connection with the registration, qualification and/or
exemption of the Republic Shares, including any SEC and state securities law
registration and filing fees, printing expenses, fees and disbursements of
Republic's counsel and accountants, transfer agents' and registrars' fees, fees
and disbursements of experts used by Republic in connection with such
registration, qualification and/or exemption, and expenses incidental to any
amendment or supplement to the Registration
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Statement or prospectuses contained therein. Republic shall not, however, be
liable for any sales, broker's or underwriting commissions upon sale by any
Holder of any of the Republic Shares.
8.3 FURNISHING OF DOCUMENTS. Republic shall furnish to the
Holders such reasonable number of copies of the Registration Statement, such
prospectuses as are contained in the Registration Statement and such other
documents as the Holders may reasonably request in order to facilitate the
offering of the Republic Shares.
8.4 AMENDMENTS AND SUPPLEMENTS. Republic shall prepare and
promptly file with the SEC and promptly notify the Holders of the filing of
such amendments or supplements to the Registration Statement or prospectuses
contained therein as may be necessary to correct any statements or omissions
if, at the time when a prospectus relating to the Republic Shares is required
to be delivered under the Securities Act, any event shall have occurred as a
result of which any such prospectus or any other prospectus as then in effect
would include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Republic shall also
advise the Holders promptly after it shall receive notice or obtain knowledge
thereof, of the issuance of any stop order by the SEC suspending the
effectiveness of the Registration Statement or the initiation or threatening of
any proceeding for that purpose and promptly use its reasonable best efforts to
prevent the issuance of any stop order or to obtain its withdrawal if such stop
order should be issued.
8.5 DURATION. Republic's obligations contained in Sections 8.1,
8.3 and 8.4 shall continue and Republic shall maintain the effectiveness of the
Registration Statement until the earlier of (i) such time as Republic
reasonably determines, based on an opinion of counsel, that the Holders will be
eligible to sell all of the Shares then owned by the Holders without the need
for continued registration of the shares, in the three month period immediately
following the termination of the effectiveness of the Registration Statement,
or (ii) the third anniversary of the Effective Date.
8.6 FURTHER INFORMATION. If Republic Shares owned by a Holder
are included in any registration, such Holder shall furnish Republic such
information regarding itself as Republic may reasonably request and as shall be
required in connection with any registration, qualification or compliance
referred to in this Agreement.
8.7 INDEMNIFICATION
(a) Republic will indemnify and hold harmless the
Holders and each person, if any, who controls a Holder within the meaning of
the Securities Act, from and against any and all losses, damages, liabilities,
costs and expenses to which the Holders or any such controlling person may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages, liabilities, costs or expenses are caused by any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, any prospectus contained
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therein or any amendment or supplement thereto, or arise out of or
based upon the omission or alleged omission to state therein 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;
provided, however, that, Republic will not be liable in any such case to the
extent that any such loss, claim, damage, liability, cost or expense arises out
of or is based upon an untrue statement or alleged untrue statement or omission
or alleged omission so made in conformity with information furnished by or on
behalf of any Holder or such controlling person in writing specifically for use
in the preparation thereof.
(b) Each of the Holders, jointly and severally, will
indemnify and hold harmless Republic and each person, if any, who controls
Republic within the meaning of the Securities Act, from and against any and all
losses, damages, liabilities, costs and expenses to which Republic or any such
controlling person may become subject under the Securities Act or otherwise,
insofar as such losses, damages, liabilities, costs or expenses are caused by
any untrue statement or alleged untrue statement of any material fact contained
in the Registration Statement, any prospectus contained therein or any amendment
or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein 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, to the extent that such untrue
statement or alleged untrue statement or omission or alleged omission was so
made in reliance upon and in strict conformity with written information
furnished by or on behalf of any Holder specifically for use in the preparation
thereof.
(c) Promptly after receipt by an indemnified party
pursuant to the provisions of paragraph (a) or (b) of this Section 8.7 notice
of the commencement of any action involving the subject matter of the foregoing
indemnity provisions, such indemnified party will, if a claim thereof is to be
made against the indemnifying party pursuant to the provisions of said
paragraph (a) or (b), promptly notify the indemnifying party of the
commencement thereof; but the omission to so notify the indemnifying party will
not relieve it from any liability which it may have hereunder unless the
indemnifying party has been materially prejudiced thereby nor will such failure
to so notify the indemnifying party relieve it from any liability which it may
have to any indemnified party otherwise than hereunder. In case such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party shall have the right to
participate in, and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party; provided, however, if the
defendants in any action include both the indemnified party and the
indemnifying party and there is a conflict of interest which would prevent
counsel for the indemnifying party from also representing the indemnified
party, the indemnified party or parties shall have the right to select separate
counsel to participate in the defense of such action on behalf of such
indemnified party or parties. After notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party pursuant to the
provisions of said paragraph (a) or (b) for any legal or other expense
subsequently incurred by such indemnified
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party in connection with the defense thereof other than reasonable costs of
investigation, unless (i) the indemnified party shall have employed counsel in
accordance with the provisions of the preceding sentence, (ii) the indemnifying
party shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after the notice of
the commencement of the action, or (iii) the indemnifying party has authorized
the employment of counsel for the indemnified party at the expense of the
indemnifying party.
(d) In the event any of the Republic Shares are sold by
any Holder or Holders in an underwritten public offering consented to by
Republic, Republic shall provide indemnification to the underwriters of such
offering and any person controlling any such underwriter on behalf of the
Holder or Holders making the offering; provided, however, that Republic shall
not be required to consent to any such underwriting or to provide such
indemnification in respect of the matters described in the proviso to the first
sentence of Section 8.7(a).
ARTICLE IX
INDEMNIFICATION
9.1 AGREEMENT BY THE SHAREHOLDERS TO INDEMNIFY. The
Shareholders jointly and severally agree to indemnify and hold Republic
harmless from and against the aggregate of all Indemnifiable Damages (as
defined below).
(a) For purposes of this Agreement, "Indemnifiable
Damages" means, without duplication, the aggregate of all expenses,
losses, costs, deficiencies, liabilities and damages (including,
without limitation, related counsel and paralegal fees and expenses)
incurred or suffered by Republic, on a pre-tax consolidated basis, to
the extent not covered by insurance and (i) resulting from any breach
of a representation or warranty made by the Shareholders in this
Agreement, or (ii) resulting from any breach of the covenants or
agreements made by any of the Xxxxxx Companies, ADC or any Shareholder
in this Agreement.
(b) Each of the representations and warranties made by
the Shareholders in this Agreement or pursuant hereto shall survive
for a period of one year after the Effective Time, notwithstanding any
investigation at any time made by or on behalf of Republic and upon
expiration of such one year period, such representations and
warranties shall expire except as follows: (i) the representations and
warranties of the Shareholders contained in Section 3.19 to the extent
relating to tax attributes or liabilities with respect to Taxes of JCD
relating to the operations of the Xxxxxxxx County, Texas property
owned by JCD, shall expire at the time the period of limitations
(including any extensions thereof pursuant to the delivery of waivers
of the applicable period of limitations) expires for the
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assessment by the taxing authority of additional Taxes with
respect to which the representations and warranties relate; (ii) the
representations and warranties of the Shareholders contained in
Sections 3.13 and 3.16 shall expire at the time the latest period of
limitations expires for the enforcement by an applicable Governmental
Authority or third party of any remedy with respect to any costs of
evaluation and/or remediation of any soil and/or groundwater
contamination at the San Xxxxxx Municipal Landfill or surrounding
property; and (iii) the representations and warranties of the
Shareholders contained in Sections 3.1, 3.2, 3.3, 3.4, and 3.5 shall
not expire but shall continue indefinitely. No claim for the recovery
of Indemnifiable Damages may be asserted by Republic against the
Shareholders after such representations and warranties shall thus
expire, provided, however, that claims for Indemnifiable Damages first
asserted in writing within the applicable period shall not thereafter
be barred. Notwithstanding any knowledge of facts determined or
determinable by any party by investigation, each party shall have the
right to fully rely on the representations, warranties, covenants and
agreements of the other parties contained in this Agreement or in any
other documents or papers delivered in connection herewith. Each
representation, warranty, covenant and agreement of the parties
contained in this Agreement is independent of each other
representation, warranty, covenant and agreement.
(c) In the event that Republic believes that it is
entitled to a claim for any Indemnifiable Damages hereunder, Republic
shall promptly give written notice to the Shareholders of such claim
and the amount or the estimated amount of such claim, and the basis
for such claim. If the Shareholders do not transfer shares to pay the
amount of the claim for Indemnifiable Damages to Republic within ten
(10) days, then Republic may set off the amount of such claim by
selling some or all of the Held Back Shares and retaining the net
proceeds thereof as a set off against the claim in accordance with the
procedures, and subject to the Shareholders' right to contest such
claim, as set forth in Section 9.2 below. If the Held Back Shares are
insufficient to set off the claim (or have been delivered to the
Shareholders prior to the making or resolution of such claim), then
Republic may take any action or exercise any remedy available to it by
appropriate legal proceedings to collect the Indemnifiable Damages.
(d) Notwithstanding anything to the contrary in this
Section 9.2, the Shareholders shall not be liable to Republic with
respect to any claim for Indemnifiable Damages unless all
Indemnifiable Damages incurred by Republic exceed an aggregate of One
Million Five Hundred Thousand Dollars ($1,500,000.00), in which case
the Shareholders shall be liable only for the amount of such
Indemnifiable Damages in excess of One Million Five Hundred Thousand
Dollars ($1,500,000.00), provided, however, that the maximum liability
of the Shareholders for Indemnifiable Damages shall not exceed Fifteen
Million Dollars ($15,000,000.00) in the aggregate.
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(e) With respect to any Indemnifiable Damages which arise
from any costs of evaluation and remediation of any soil and/or
groundwater contamination at the San Xxxxxx Municipal Landfill or
surrounding property which Trashaway becomes obligated to pay,
Republic agrees that before enforcing a claim for Indemnifiable
Damages against the Shareholders, the Shareholders shall be given
notice and have the opportunity to promptly attempt to seek a contract
modification from the City of San Xxxxxx to raise rates for the
purpose of mitigating Trashaway's costs of evaluation and remediation;
the Shareholders shall have the burden of proving that any contract
modification or rate increase was entered into in order to mitigate
such costs as opposed to other reasons and any modification or rate
increase made more than twelve months later than the date of
Republic's notice to the Shareholders shall be presumed not to be
entered into for purposes of such mitigation.
9.2 SECURITY FOR THE SHAREHOLDERS' INDEMNIFICATION OBLIGATION.
As security for the agreement by the Shareholders to indemnify and hold
Republic harmless as described in Sections 9.1, at the Closing, Republic shall
set aside and hold certificates representing the Held Back Shares issued
pursuant to this Agreement.
(a) Republic may set off against the Held Back Shares any
loss, damage, cost or expense for which the Shareholders may be
responsible pursuant to this Agreement (including without limitation,
any Indemnifiable Damages for which the Shareholders may be
responsible pursuant to this Agreement) whether or not indemnified
pursuant to Section 9.1 of this Agreement, subject, however, to the
following terms and conditions:
(1) Republic shall give written notice to the Shareholders
of any claim for Indemnifiable Damages or any other damages
hereunder, which notice shall set forth (i) the amount of
Indemnifiable Damages or other loss, damage, cost or expense
which Republic claims to have sustained by reason thereof, and
(ii) the basis of such claim;
(2) Such set off shall be effected on the later to occur on
the expiration of 10 days from the date of such notice (the
"Notice of Contest Period") or, if such claim is contested, the
date the dispute is resolved, and such set off shall be charged
proportionally against the shares set aside;
(3) If, prior to the expiration of the Notice of Contest
Period, the Shareholders shall notify Republic in writing of an
intention to dispute the claim and if such dispute is not
resolved within 30 days after expiration of such period (the
"Resolution Period"), then Republic may elect that such dispute
shall be resolved by a committee of three arbitrators (one
appointed by the Shareholders, one appointed by Republic
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and one appointed by the two arbitrators so appointed), which
shall be appointed within 60 days after the expiration of the
Resolution Period. The arbitrators shall abide by the rules of
the American Arbitration Association and their decision shall be
made within 45 days of being appointed and shall be final and
binding on all parties;
(4) As soon as the Held Back Shares are registered and any
restrictions on sale imposed under Rule 145 of the Securities Act
are terminated, the Shareholders may instruct Republic to sell
some or all of the Held Back Shares and the net proceeds thereof
shall be substituted for such Held Back Shares in any set off to
be made by Republic pursuant to any claim hereunder subject to
continued compliance with any applicable securities and other
regulations; and
(5) For purposes of this Section 9.2, the shares of
Republic Common Stock not sold as provided in clause (4) of this
Section 9.2 shall be valued at the Average Closing Sale Price.
(b) Except with respect to shares transferred pursuant to
the foregoing right of setoff (and in the case of such shares, until
the same are transferred), all Held Back Shares shall be deemed to be
owned by the Shareholders and the Shareholders shall be entitled to
vote the same; provided, however, that, there shall also be deposited
with Republic subject to the terms of this Section 9.2, all shares of
Republic Common Stock issued to the Shareholders as a result of any
stock dividend or stock split and all cash issuable to the
Shareholders as a result of any cash dividend, with respect to the
Held Back Shares. All stock and cash issued or paid upon Held Back
Shares shall be distributed to the person or entity entitled to
receive such Held Back Shares together with such Held Back Shares.
(c) Republic agrees to deliver to the Shareholders no
later than the first anniversary of the Effective Time any Held Back
Shares then held by it (or proceeds from the Held Back Shares) unless
there then remains unresolved any claim for Indemnifiable Damages or
other damages hereunder as to which notice has been given, in which
event any Held Back Shares remaining on deposit (or proceeds from the
sale of Held Back Shares) after such claim shall have been satisfied
shall be returned to the Shareholders promptly after the time of
satisfaction.
9.3 ADJUSTMENT TO MERGER CONSIDERATION. All payments for
Indemnifiable Damages made pursuant to this Article IX shall be treated as
adjustments to the consideration granted in the Mergers under Section 1.3.
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9.4 AGREEMENT BY REPUBLIC TO INDEMNIFY. Republic agrees to
indemnify and hold the Shareholders harmless from and against the aggregate of
all expenses, losses, costs, deficiencies, liabilities and damages (including,
without limitation, related counsel and paralegal fees and expenses) incurred
or suffered by the Shareholders to the extent not covered by insurance and (i)
resulting from any breach of a representation or warranty made by Republic in
this Agreement, or (ii) resulting from any breach of the covenants or
agreements made by Republic in the Agreement. Each of the representations and
warranties made by Republic in the Agreement shall survive for a period of one
year after the Effective Time, and no claim for indemnification hereunder may
be asserted by the Shareholders against Republic after such representations and
warranties shall thus expire, provided, however, that claims for
indemnification first asserted in writing within the one year period shall not
thereafter be barred. Notwithstanding the foregoing, Republic shall not be
liable to the Shareholders with respect to any claim for indemnification
hereunder unless all such claims incurred by the Shareholders exceed an
aggregate of One Million Five Hundred Thousand Dollars ($1,500,000.00), in
which case Republic shall be liable only for the amount in excess of One
Million Five Hundred Thousand Dollars ($1,500,000.00), provided, however, that
the maximum liability of Republic for such indemnification claims shall not
exceed Fifteen Million Dollars ($15,000,000.00) in the aggregate. Republic
will satisfy any obligation of indemnification under this Section 9.4 by
delivery of shares of Republic Common Stock only. In determining the number of
shares of Republic Common Stock to be delivered to satisfy any indemnification
obligation by Republic, the value of such Republic Common Stock shall be
determined by the Average Closing Sale Price.
ARTICLE X
SECURITIES LAW MATTERS
The parties agree as follows with respect to the sale or other
disposition after Effective Time of the Republic Shares:
10.1 DISPOSITION OF SHARES. The Shareholders represent and
warrant that the shares of Republic Common Stock being acquired by them
hereunder are being acquired and will be acquired for their own respective
accounts and will not be sold or otherwise disposed of, except pursuant to (a)
an exemption from the registration requirements under the Securities Act, which
does not require the filing by Republic with the SEC of any registration
statement, offering circular or other document, in which case, the Shareholders
shall first supply to Republic an opinion of counsel (which counsel and
opinions shall be satisfactory to Republic) that such exception is available,
or (ii) an effective registration statement filed by Republic with the SEC
under the Securities Act.
10.2 LEGEND. The certificates representing the Republic Shares
shall bear the following legend:
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THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
PROVISIONS OF RULE 145(D) PROMULGATED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (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 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 SECURITIES AND EXCHANGE
COMMISSION'S ACCOUNTING SERIES RELEASES 130 AND 135.
Republic may, unless a registration statement is in effect covering such
shares, place stop transfer orders with its transfer agents with respect to
such certificates in accordance with federal securities laws.
ARTICLE XI
DEFINITIONS
11.1 DEFINED TERMS. As used herein, the following terms shall
have the following meanings:
"Affiliate" shall have the meaning ascribed to it in Rule 12b-2 of the
General Rules and Regulations under the Exchange Act, as in effect on the date
hereof.
"Average Closing Sale Price" shall mean $21.00 per share of Republic
Common Stock.
"Contract" means any indenture, lease, sublease, license, loan
agreement, mortgage, note, indenture, restriction, will, trust, commitment,
obligation or other contract, agreement or instrument, whether written or oral.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principles in effect in the
United States of America from time to time.
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"Governmental Authority" means any nation or government, any state,
regional, local or other political subdivision thereof, and any entity or
official exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including, but not limited to, any conditional sale
or other title retention agreement, any lease in the nature thereof, and the
filing of or agreement to give any financing statement under the Uniform
Commercial Code or comparable law or any jurisdiction in connection with such
mortgage, pledge, security interest, encumbrance, lien or charge).
"Material Adverse Change (or Effect)" means a change (or effect), in
the condition (financial or otherwise), properties, assets, liabilities,
rights, obligations, operations, business or prospects which change (or effect)
individually or in the aggregate, is materially adverse to such condition,
properties, assets, liabilities, rights, obligations, operations, business or
prospects of or in the entity to which the change (of effect) relates.
"Person" means an individual, partnership, corporation, business
trust, joint stock company, estate, trust, unincorporated association, joint
venture, Governmental Authority or other entity, of whatever nature.
"Register", "registered" and "registration" refer to a registration of
the offering and sale of securities effected by preparing and filing a
registration statement in compliance with the Securities Act and the
declaration or ordering of the effectiveness of such registration statement.
"Republic Shares" means the shares of Republic Common Stock which the
Shareholders receive in connection with the Merger.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Tax Return" means any tax return, filing or information statement
required to be filed in connection with or with respect to any Taxes; and
"Taxes" means all taxes, fees or other assessments, including, but not
limited to, income, excise, property, sales, franchise, intangible,
withholding, social security and unemployment taxes imposed by any federal,
state, local or foreign governmental agency, and any interest or penalties
related thereto.
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11.2 OTHER DEFINITIONAL PROVISIONS.
(a) All terms defined in this Agreement shall have the
defined meanings when used in any certificates, reports or other documents made
or delivered pursuant hereto or thereto, unless the context otherwise requires.
(b) Terms defined in the singular shall have a
comparable meaning when used in the plural, and vice versa.
(c) All matters of an accounting nature in connection
with this Agreement and the transactions contemplated hereby shall be
determined in accordance with GAAP applied on a basis consistent with prior
periods, where applicable.
(d) As used herein, the neuter gender shall also denote
the masculine and feminine, and the masculine gender shall also denote the
neuter and feminine, where the context so permits.
ARTICLE XII
TERMINATION, AMENDMENT AND WAIVER
12.1 TERMINATION. This Agreement may be terminated at any time
prior to the Effective Time:
(a) by mutual written consent of all of the parties
hereto at any time prior to the Closing; or
(b) by Republic in the event of a material breach by any
of the Xxxxxx Companies or any of the Shareholders of any provision of
this Agreement;
(c) by all of the Shareholders jointly in the event of a
material breach by the Republic Companies of any provision of this
Agreement; or
(d) if the Closing shall not have occurred by March 1,
1996.
12.2 EFFECT OF TERMINATION. Except as provided in Article IX, in
the event of termination of this Agreement pursuant to Section 12.1, this
Agreement and the Plans of Merger shall forthwith become void; provided,
however, that nothing herein shall relieve any party from liability for the
willful breach of any of its representations, warranties, covenants or
agreements set forth in this Agreement.
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ARTICLE XIII
GENERAL PROVISIONS
13.1 NOTICES. All notices, requests, demands, claims, and other
communications hereunder shall be in writing and shall be delivered by
certified or registered mail (first class postage pre-paid), guaranteed
overnight delivery, or facsimile transmission if such transmission is confirmed
by delivery by certified or registered mail (first class postage pre-paid) or
guaranteed overnight delivery, to the following addresses and telecopy numbers
(or to such other addresses or telecopy numbers which such party shall
designate in writing to the other party):
(a) IF TO ANY OF THE REPUBLIC COMPANIES TO:
Republic Waste Industries, Inc.
000 Xxxx Xxx Xxxx Xxxx., Xxxxx 0000
Xx. Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, General Counsel
Telecopy: (000) 000-0000
WITH A COPY TO:
Akerman, Senterfitt & Xxxxxx, P.A.
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
(b) IF TO ANY OF THE XXXXXX COMPANIES OR THE
SHAREHOLDERS TO:
X.X. Xxxxxx Co., Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx 00000
Attn: Xxxxxx Xxxxxx, President
Telecopy: (000) 000-0000
WITH A COPY TO EACH OF:
Meadows, Owens, Collier, Reed,
Cousins & Blau, LLP
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxx, Esq.
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Telecopy: (000) 000-0000
Xxxxxx & Hanger, LLP
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
13.2 ENTIRE AGREEMENT. This Agreement (including the Exhibits
and Schedules attached hereto) and other documents delivered at the Closing
pursuant hereto, contains the entire understanding of the parties in respect of
its subject matter and supersedes all prior agreements and understandings (oral
or written) between or among the parties with respect to such subject matter.
The Exhibits and Schedules constitute a part hereof as though set forth in full
above.
13.3 EXPENSES. Except as otherwise provided herein, the parties
shall pay their own fees and expenses, including their own counsel fees,
incurred in connection with this Agreement or any transaction contemplated
hereby.
13.4 AMENDMENT; WAIVER. This Agreement may not be modified,
amended, supplemented, canceled or discharged, except by written instrument
executed by all parties. No failure to exercise, and no delay in exercising,
any right, power or privilege under this Agreement shall operate as a waiver,
nor shall any single or partial exercise of any right, power or privilege
hereunder preclude the exercise of any other right, power or privilege. No
waiver of any breach of any provision shall be deemed to be a waiver of any
preceding or succeeding breach of the same or any other provision, nor shall
any waiver be implied from any course of dealing between the parties. No
extension of time for performance of any obligations or other acts hereunder or
under any other agreement shall be deemed to be an extension of the time for
performance of any other obligations or any other acts. The rights and
remedies of the parties under this Agreement are in addition to all other
rights and remedies, at law or equity, that they may have against each other.
13.5 BINDING EFFECT; ASSIGNMENT. The rights and obligations of
this Agreement shall bind and inure to the benefit of the parties and their
respective successors and assigns. Nothing expressed or implied herein shall
be construed to give any other person any legal or equitable rights hereunder.
Except as expressly provided herein, the rights and obligations of this
Agreement may not be assigned by any of the Xxxxxx Companies, ADC or any
Shareholders without the prior written consent of Republic and may not be
assigned by Republic without the prior written consent of the Shareholders.
13.6 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be an original but all of which together
shall constitute one and the same instrument.
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13.7 INTERPRETATION. When a reference is made in this Agreement
to an article, section, paragraph, clause, schedule or exhibit, such reference
shall be deemed to be to this Agreement unless otherwise indicated. The
headings contained herein and on the schedules are for reference purposes only
and shall not affect in any way the meaning or interpretation of this Agreement
or the schedules. Whenever the words "include," "includes" or "including" are
used in this Agreement, they shall be deemed to be followed by the words
"without limitation." Time shall be of the essence in this Agreement.
13.8 GOVERNING LAW; INTERPRETATION. This Agreement shall be
construed in accordance with and governed for all purposes by the laws of the
State of Florida applicable to contracts executed and to be wholly performed
within such State.
13.9 ARM'S LENGTH NEGOTIATIONS. Each party herein expressly
represents and warrants to all other parties hereto that (a) before executing
this Agreement, said party has fully informed itself of the terms, contents,
conditions and effects of this Agreement; (b) said party has relied solely and
completely upon its own judgment in executing this Agreement; (c) said party
has had the opportunity to seek and has obtained the advice of counsel before
executing this Agreement; (d) said party has acted voluntarily and of its own
free will in executing this Agreement; (e) said party is not acting under
duress, whether economic or physical, in executing this Agreement; and (f) this
Agreement is the result of arm's length negotiations conducted by and among the
parties and their respective counsel.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the day and year first above written.
REPUBLIC WASTE INDUSTRIES, INC.
By: /s/ H. XXXXX XXXXXXXX
------------------------------
H. Xxxxx Xxxxxxxx,
Chairman and Chief Executive Officer
RWI/JCD INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxxxx,
Vice President
RWI/GRAND INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxxxx,
Vice President
RWI/TRASHAWAY INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------
Xxxxxxx X. Xxxxxxxxx,
Vice President
RWI/TOS-IT INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxxxx,
Vice President
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RWI/WESTEX INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxxxx,
Vice President
RWI/PANTEGO I INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------
Xxxxxxx X. Xxxxxxxxx,
Vice President
RWI/PANTEGO II INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxxxx,
Vice President
RWI/TRUCKING I INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxxxx,
Vice President
RWI/TRUCKING II INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------
Xxxxxxx X. Xxxxxxxxx,
Vice President
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X.X. XXXXXX COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
XXXXXX X. XXXXXX,
Chief Executive Officer
ARLINGTON DISPOSAL COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
XXXXXX X. XXXXXX,
Chief Executive Officer
GRAND PRAIRIE DISPOSAL COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
XXXXXX X. XXXXXX,
Chief Executive Officer
TRASHAWAY SERVICES, INC.
By: /s/ Xxx X. Xxxxxx
-------------------------------
XXX X. XXXXXX, President
TOS-IT SERVICE COMPANY, INC.
By: /s/ Xxx X. Xxxxxx
------------------------------
XXX X. XXXXXX, President
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XXX TEX WASTE SERVICE, INC.
By:/s/ Xxx X. Xxxxxx
-----------------------------
XXX X. XXXXXX, President
PANTEGO SERVICE COMPANY
By: Pantego I, Inc., partner
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
XXXXXX X. XXXXXX, President
PANTEGO I, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
XXXXXX X. XXXXXX, President
PANTEGO II, INC.
By: /s/ Xxx X. Xxxxxx
------------------------------
XXX X. XXXXXX, President
E & E TRUCK LEASING, LTD.
By its General Partner,
EETL I, INC.
By: /s/ Xxx X. Xxxxxx
------------------------------
XXX X. XXXXXX, President
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EETL I, INC.
By: /s/ Xxx X. Xxxxxx
------------------------------
XXX X. XXXXXX, President
EETL II, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------
XXXXX X. XXXXXX, President
/s/ Xxxxxx X. Xxxxxx
---------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxxxxx X. Xxxxxx
--------------------------------
Xxxxxxxx X. Xxxxxx
/s/ Xxx X. Xxxxxx
-------------------------------
Xxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx
/s/ XxxXxx Xxxxxx Xxxxxxx
--------------------------------
XxxXxx Xxxxxx Xxxxxxx
/s/ Xxxxxx Xxxxxx Xxxxxx
----------------------------------
Xxxxxx Xxxxxx Xxxxxx
/s/ Xxxxxxx Xxxxxx Xxxxx
----------------------------------
Xxxxxxx Xxxxxx Xxxxx
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XXXXXX X. XXXXXX ANNUITY TRUST NO.
ONE
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Xxxxxx X. Xxxxxx, Trustee
XXXXXX X. XXXXXX ANNUITY TRUST NO.
TWO
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Xxxxxx X. Xxxxxx, Trustee
XXXXXX X. XXXXXX ANNUITY TRUST NO.
THREE
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Xxxxxx X. Xxxxxx, Trustee
XXXXXX X. XXXXXX ANNUITY TRUST NO.
FOUR
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Xxxxxx X. Xxxxxx, Trustee
XXXXXXXX X. XXXXXX ANNUITY TRUST NO.
ONE
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------------
Xxxxxxxx X. Xxxxxx, Trustee
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XXXXXXXX X. XXXXXX ANNUITY TRUST NO.
TWO
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------------
Xxxxxxxx X. Xxxxxx, Trustee
XXXXXXXX X. XXXXXX ANNUITY TRUST NO.
THREE
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------------
Xxxxxxxx X. Xxxxxx, Trustee
XXXXXXXX X. XXXXXX ANNUITY TRUST NO.
FOUR
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------------
Xxxxxxxx X. Xxxxxx, Trustee
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EXHIBIT A
PLAN OF MERGER AND REORGANIZATION
This Plan of Merger and Reorganization (this "Plan") is entered into
as of __________, 1995 among RWI/JCD Inc., a Texas corporation ("Republic
Sub"), and X. X. Xxxxxx Co., Inc., a Texas corporation ("Xxxxxx").
RECITALS
The boards of directors and shareholders of Republic Sub and Xxxxxx
have determined that it is advisable and in the best interests of each such
corporation and its respective shareholders that Republic Sub be merged (the
"Merger") with and into Xxxxxx on the terms and subject to the conditions set
forth herein, such that Xxxxxx will be the surviving corporation and a
wholly-owned subsidiary of Republic Waste Industries, Inc., a Delaware
corporation.
ARTICLE I
THE MERGER
At the Effective Time (as defined in Article V hereof), Republic Sub
shall be merged with and into Xxxxxx in accordance with the Texas Business
Corporation Act (the "TBCA"), and the separate existence of Republic Sub shall
cease and Xxxxxx shall thereafter continue as the surviving corporation (the
"Surviving Corporation") under the laws of the State of Texas.
ARTICLE II
THE SURVIVING CORPORATION
A. At the Effective Time, the Articles of Incorporation of
Xxxxxx, as in effect immediately prior to the Effective Time, shall be the
Articles of Incorporation of the Surviving Corporation, until thereafter
altered, amended or repeated in accordance with the TCBA.
B. At the Effective Time, the Bylaws of Xxxxxx, as in effect
immediately prior to the Effective Time, shall be the Bylaws of the Surviving
Corporation, until thereafter altered, amended or repealed in accordance with
the TCBA.
C. At the Effective Time, the officers and directors of Xxxxxx
shall be the officers and directors of the Surviving
58
Corporation until their successors are elected and have qualified.
ARTICLE III
MANNER AND BASIS OF CONVERTING SHARES
A. At the Effective Time, each share of common stock of Xxxxxx,
$100.00 par value per share (the "Xxxxxx Common Stock"), which shall be issued
and outstanding (other than shares of Xxxxxx Common Stock held in treasury)
shall, by virtue of the Merger and without any action on the part of the holder
thereof, be converted into the right to receive ______________________
(________)shares of common stock, $0.01 par value per share, of Republic Waste
Industries, Inc., a Delaware corporation and the parent of Republic Sub
("Republic Common Stock"). Fractional shares of Republic Common Stock will not
be issued, instead shares of Republic Common Stock will be issued determined to
the nearest whole share of Republic Common Stock.
B. At the Effective Time, each share of Xxxxxx Common Stock held
in treasury shall be canceled and extinguished without any conversion thereof.
C. At the Effective Time, each right to acquire shares of Xxxxxx
Common Stock, to the extent that any such rights exist, which shall be issued
and outstanding shall, by virtue of the Merger and without any action on the
part of the holder thereof, be converted into the right to acquire
__________________ (_____) shares of Republic Common Stock.
D. Each share of common stock of Republic Sub, $1.00 par value
per share, issued and outstanding immediately prior to the Effective Time shall
be automatically converted into one share of Xxxxxx Common Stock, which shall
be the only outstanding common stock of the Surviving Corporation immediately
following the Effective Time.
ARTICLE IV
EFFECT OF MERGER
At the Effective Time, all property, rights, privileges, powers and
franchises of Xxxxxx and Republic Sub shall vest in the Surviving Corporation,
and all liabilities and obligations of
2
59
Xxxxxx and Republic Sub shall become liabilities and obligations of the
Surviving Corporation.
ARTICLE V
EFFECTIVE TIME
As used in this Plan, the term, "Effective Time" shall mean the date
and time of filing of Articles of Merger with the Secretary of State of the
State of Texas with respect to the Merger.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, each of the parties has caused this Plan to be
executed on its behalf as of the date first written above.
RWI/JCD INC.
By:
------------------------------------
Name:
Title:
X. X. XXXXXX CO, INC.
By:
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
4
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EXHIBIT B
PLAN OF MERGER AND REORGANIZATION
This Plan of Merger and Reorganization (this "Plan") is entered into
as of __________, 1995 among RWI/Grand Inc., a Texas corporation ("Republic
Sub"), and Grand Prarie Disposal Company, Inc., a Texas corporation ("Grand").
RECITALS
The boards of directors and shareholders of Republic Sub and Grand
have determined that it is advisable and in the best interests of each such
corporation and its respective shareholders that Republic Sub be merged (the
"Merger") with and into Grand on the terms and subject to the conditions set
forth herein, such that Grand will be the surviving corporation and a
wholly-owned subsidiary of Republic Waste Industries, Inc., a Delaware
corporation.
ARTICLE I
THE MERGER
At the Effective Time (as defined in Article V hereof), Republic Sub
shall be merged with and into Grand in accordance with the Texas Business
Corporation Act (the "TBCA"), and the separate existence of Republic Sub shall
cease and Grand shall thereafter continue as the surviving corporation (the
"Surviving Corporation") under the laws of the State of Texas.
ARTICLE II
THE SURVIVING CORPORATION
A. At the Effective Time, the Articles of Incorporation of Grand,
as in effect immediately prior to the Effective Time, shall be the Articles of
Incorporation of the Surviving Corporation, until thereafter altered, amended
or repeated in accordance with the TCBA.
B. At the Effective Time, the Bylaws of Grand, as in effect
immediately prior to the Effective Time, shall be the Bylaws of the Surviving
Corporation, until thereafter altered, amended or repealed in accordance with
the TCBA.
1
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C. At the Effective Time, the officers and directors of Grand
shall be the officers and directors of the Surviving Corporation until their
successors are elected and have qualified.
ARTICLE III
MANNER AND BASIS OF CONVERTING SHARES
A. At the Effective Time, each share of common stock of Grand,
$10.00 par value per share (the "Grand Common Stock"), which shall be issued
and outstanding (other than shares of Grand Common Stock held in treasury)
shall, by virtue of the Merger and without any action on the part of the holder
thereof, be converted into the right to receive ______________________
(________)shares of common stock, $0.01 par value per share, of Republic Waste
Industries, Inc., a Delaware corporation and the parent of Republic Sub
("Republic Common Stock"). Fractional shares of Republic Common Stock will not
be issued, instead shares of Republic Common Stock will be issued determined to
the nearest whole share of Republic Common Stock.
B. At the Effective Time, each share of Grand Common Stock held
in treasury shall be canceled and extinguished without any conversion thereof.
C. At the Effective Time, each right to acquire shares of Grand
Common Stock, to the extent that any such rights exist, which shall be issued
and outstanding shall, by virtue of the Merger and without any action on the
part of the holder thereof, be converted into the right to acquire
__________________ (_____) shares of Republic Common Stock.
D. Each share of common stock of Republic Sub, $1.00 par value
per share, issued and outstanding immediately prior to the Effective Time shall
be automatically converted into one share of Grand Common Stock, which shall be
the only outstanding common stock of the Surviving Corporation immediately
following the Effective Time.
ARTICLE IV
EFFECT OF MERGER
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63
At the Effective Time, all property, rights, privileges, powers and
franchises of Grand and Republic Sub shall vest in the Surviving Corporation,
and all liabilities and obligations of Grand and Republic Sub shall become
liabilities and obligations of the Surviving Corporation.
ARTICLE V
EFFECTIVE TIME
As used in this Plan, the term, "Effective Time" shall mean the date
and time of filing of Articles of Merger with the Secretary of State of the
State of Texas with respect to the Merger.
[SIGNATURES ON NEXT PAGE]
3
64
IN WITNESS WHEREOF, each of the parties has caused this Plan to be
executed on its behalf as of the date first written above.
RWI/GRAND INC.
By:
------------------------------------
Name:
Title:
GRAND PRARIE DISPOSAL COMPANY, INC.
By:
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
4
65
EXHIBIT C
PLAN OF MERGER AND REORGANIZATION
This Plan of Merger and Reorganization (this "Plan") is entered into
as of __________, 1995 among RWI/Trashaway Inc., a Texas corporation ("Republic
Sub"), and Trashaway Services, Inc., a Texas corporation ("Trashaway").
RECITALS
The boards of directors and shareholders of Republic Sub and Trashaway
have determined that it is advisable and in the best interests of each such
corporation and its respective shareholders that Republic Sub be merged (the
"Merger") with and into Trashaway on the terms and subject to the conditions
set forth herein, such that Trashaway will be the surviving corporation and a
wholly-owned subsidiary of Republic Waste Industries, Inc., a Delaware
corporation.
ARTICLE I
THE MERGER
At the Effective Time (as defined in Article V hereof), Republic Sub
shall be merged with and into Trashaway in accordance with the Texas Business
Corporation Act (the "TBCA"), and the separate existence of Republic Sub shall
cease and Trashaway shall thereafter continue as the surviving corporation (the
"Surviving Corporation") under the laws of the State of Texas.
ARTICLE II
THE SURVIVING CORPORATION
A. At the Effective Time, the Articles of Incorporation of
Trashaway, as in effect immediately prior to the Effective Time, shall be the
Articles of Incorporation of the Surviving Corporation, until thereafter
altered, amended or repeated in accordance with the TCBA.
B. At the Effective Time, the Bylaws of Trashaway, as in effect
immediately prior to the Effective Time, shall be the Bylaws of the Surviving
Corporation, until thereafter altered, amended or repealed in accordance with
the TCBA.
66
C. At the Effective Time, the officers and directors of Trashaway
shall be the officers and directors of the Surviving Corporation until their
successors are elected and have qualified.
ARTICLE III
MANNER AND BASIS OF CONVERTING SHARES
A. At the Effective Time, each share of common stock of
Trashaway, $1.00 par value per share (the "Trashaway Common Stock"), which
shall be issued and outstanding (other than shares of Trashaway Common Stock
held in treasury) shall, by virtue of the Merger and without any action on the
part of the holder thereof, be converted into the right to receive
______________________ (________) shares of common stock, $0.01 par value per
share, of Republic Waste Industries, Inc., a Delaware corporation and the
parent of Republic Sub ("Republic Common Stock"). Fractional shares of
Republic Common Stock will not be issued, instead shares of Republic Common
Stock will be issued determined to the nearest whole share of Republic Common
Stock.
B. At the Effective Time, each share of Trashaway Common Stock
held in treasury shall be canceled and extinguished without any conversion
thereof.
C. At the Effective Time, each right to acquire shares of
Trashaway Common Stock, to the extent that any such rights exist, which shall
be issued and outstanding shall, by virtue of the Merger and without any action
on the part of the holder thereof, be converted into the right to acquire
__________________ (_____) shares of Republic Common Stock.
D. Each share of common stock of Republic Sub, $1.00 par value
per share, issued and outstanding immediately prior to the Effective Time shall
be automatically converted into one share of Trashaway Common Stock, which
shall be the only outstanding common stock of the Surviving Corporation
immediately following the Effective Time.
ARTICLE IV
EFFECT OF MERGER
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At the Effective Time, all property, rights, privileges, powers and
franchises of Trashaway and Republic Sub shall vest in the Surviving
Corporation, and all liabilities and obligations of Trashaway and Republic Sub
shall become liabilities and obligations of the Surviving Corporation.
ARTICLE V
EFFECTIVE TIME
As used in this Plan, the term, "Effective Time" shall mean the date
and time of filing of Articles of Merger with the Secretary of State of the
State of Texas with respect to the Merger.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, each of the parties has caused this Plan to be
executed on its behalf as of the date first written above.
RWI/TRASHAWAY INC.
By:
------------------------------------
Name:
Title:
TRASHAWAY SERVICES, INC.
By:
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
4
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EXHIBIT D
PLAN OF MERGER AND REORGANIZATION
This Plan of Merger and Reorganization (this "Plan") is entered into
as of __________, 1995 among RWI/Tos-It Inc., a Texas corporation ("Republic
Sub"), and Tos-It Service Company, Inc., a Texas corporation ("Tos-It").
RECITALS
The boards of directors and shareholders of Republic Sub and Tos-It
have determined that it is advisable and in the best interests of each such
corporation and its respective shareholders that Republic Sub be merged (the
"Merger") with and into Tos-It on the terms and subject to the conditions set
forth herein, such that Tos-It will be the surviving corporation and a
wholly-owned subsidiary of Republic Waste Industries, Inc., a Delaware
corporation.
ARTICLE I
THE MERGER
At the Effective Time (as defined in Article V hereof), Republic Sub
shall be merged with and into Tos-It in accordance with the Texas Business
Corporation Act (the "TBCA"), and the separate existence of Republic Sub shall
cease and Tos-It shall thereafter continue as the surviving corporation (the
"Surviving Corporation") under the laws of the State of Texas.
ARTICLE II
THE SURVIVING CORPORATION
A. At the Effective Time, the Articles of Incorporation of
Tos-It, as in effect immediately prior to the Effective Time, shall be the
Articles of Incorporation of the Surviving Corporation, until thereafter
altered, amended or repeated in accordance with the TCBA.
B. At the Effective Time, the Bylaws of Tos-It, as in effect
immediately prior to the Effective Time, shall be the Bylaws of the Surviving
Corporation, until thereafter altered, amended or repealed in accordance with
the TCBA.
C. At the Effective Time, the officers and directors of Tos-It
shall be the officers and directors of the Surviving
70
Corporation until their successors are elected and have qualified.
ARTICLE III
MANNER AND BASIS OF CONVERTING SHARES
A. At the Effective Time, each share of common stock of Tos-It,
no par value per share (the "Tos-It Common Stock"), which shall be issued and
outstanding (other than shares of Tos-It Common Stock held in treasury) shall,
by virtue of the Merger and without any action on the part of the holder
thereof, be converted into the right to receive ______________________
(________) shares of common stock, $0.01 par value per share, of Republic Waste
Industries, Inc., a Delaware corporation and the parent of Republic Sub
("Republic Common Stock"). Fractional shares of Republic Common Stock will not
be issued, instead shares of Republic Common Stock will be issued determined to
the nearest whole share of Republic Common Stock.
B. At the Effective Time, each share of Tos-It Common Stock held
in treasury shall be canceled and extinguished without any conversion thereof.
C. At the Effective Time, each right to acquire shares of Tos-It
Common Stock, to the extent that any such rights exist, which shall be issued
and outstanding shall, by virtue of the Merger and without any action on the
part of the holder thereof, be converted into the right to acquire
__________________ (_____) shares of Republic Common Stock.
D. Each share of common stock of Republic Sub, $1.00 par value
per share, issued and outstanding immediately prior to the Effective Time shall
be automatically converted into one share of Tos-It Common Stock, which shall
be the only outstanding common stock of the Surviving Corporation immediately
following the Effective Time.
ARTICLE IV
EFFECT OF MERGER
At the Effective Time, all property, rights, privileges, powers and
franchises of Tos-It and Republic Sub shall vest in the Surviving Corporation,
and all liabilities and obligations of
2
71
Tos-It and Republic Sub shall become liabilities and obligations of the
Surviving Corporation.
ARTICLE V
EFFECTIVE TIME
As used in this Plan, the term, "Effective Time" shall mean the date
and time of filing of Articles of Merger with the Secretary of State of the
State of Texas with respect to the Merger.
[SIGNATURES ON NEXT PAGE]
3
72
IN WITNESS WHEREOF, each of the parties has caused this Plan to be
executed on its behalf as of the date first written above.
RWI/TOS-IT INC.
By:
------------------------------------
Name:
Title:
TOS-IT SERVICE COMPANY, INC.
By:
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
4
73
EXHIBIT E
PLAN OF MERGER AND REORGANIZATION
This Plan of Merger and Reorganization (this "Plan") is entered into
as of __________, 1995 among RWI/Xxx Tex Inc., a Texas corporation ("Republic
Sub"), and Xxx Tex Waste Service, Inc., a Texas corporation ("Xxx Tex").
RECITALS
The boards of directors and shareholders of Republic Sub and Xxx Tex
have determined that it is advisable and in the best interests of each such
corporation and its respective shareholders that Republic Sub be merged (the
"Merger") with and into Xxx Tex on the terms and subject to the conditions set
forth herein, such that Xxx Tex will be the surviving corporation and a
wholly-owned subsidiary of Republic Waste Industries, Inc., a Delaware
corporation.
ARTICLE I
THE MERGER
At the Effective Time (as defined in Article V hereof), Republic Sub
shall be merged with and into Xxx Tex in accordance with the Texas Business
Corporation Act (the "TBCA"), and the separate existence of Republic Sub shall
cease and Xxx Tex shall thereafter continue as the surviving corporation (the
"Surviving Corporation") under the laws of the State of Texas.
ARTICLE II
THE SURVIVING CORPORATION
A. At the Effective Time, the Articles of Incorporation of Xxx
Tex, as in effect immediately prior to the Effective Time, shall be the
Articles of Incorporation of the Surviving Corporation, until thereafter
altered, amended or repeated in accordance with the TCBA.
74
B. At the Effective Time, the Bylaws of Xxx Tex, as in effect
immediately prior to the Effective Time, shall be the Bylaws of the Surviving
Corporation, until thereafter altered, amended or repealed in accordance with
the TCBA.
C. At the Effective Time, the officers and directors of Xxx Tex
shall be the officers and directors of the Surviving Corporation until their
successors are elected and have qualified.
ARTICLE III
MANNER AND BASIS OF CONVERTING SHARES
A. At the Effective Time, each share of common stock of Xxx Tex,
$1.00 par value per share (the "Xxx Tex Common Stock"), which shall be issued
and outstanding (other than shares of Xxx Tex Common Stock held in treasury)
shall, by virtue of the Merger and without any action on the part of the holder
thereof, be converted into the right to receive ______________________
(________) shares of common stock, $0.01 par value per share, of Republic Waste
Industries, Inc., a Delaware corporation and the parent of Republic Sub
("Republic Common Stock"). Fractional shares of Republic Common Stock will not
be issued, instead shares of Republic Common Stock will be issued determined to
the nearest whole share of Republic Common Stock.
B. At the Effective Time, each share of Xxx Tex Common Stock held
in treasury shall be canceled and extinguished without any conversion thereof.
C. At the Effective Time, each right to acquire shares of Xxx Tex
Common Stock, to the extent that any such rights exist, which shall be issued
and outstanding shall, by virtue of the Merger and without any action on the
part of the holder thereof, be converted into the right to acquire
__________________ (_____) shares of Republic Common Stock.
D. Each share of common stock of Republic Sub, $1.00 par value
per share, issued and outstanding immediately prior to the Effective Time shall
be automatically converted into one share of Xxx Tex Common Stock, which shall
be the only outstanding common stock of the Surviving Corporation immediately
following the Effective Time.
2
75
ARTICLE IV
EFFECT OF MERGER
At the Effective Time, all property, rights, privileges, powers and
franchises of Xxx Tex and Republic Sub shall vest in the Surviving Corporation,
and all liabilities and obligations of Xxx Tex and Republic Sub shall become
liabilities and obligations of the Surviving Corporation.
ARTICLE V
EFFECTIVE TIME
As used in this Plan, the term, "Effective Time" shall mean the date
and time of filing of Articles of Merger with the Secretary of State of the
State of Texas with respect to the Merger.
[SIGNATURES ON NEXT PAGE]
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76
IN WITNESS WHEREOF, each of the parties has caused this Plan to be
executed on its behalf as of the date first written above.
RWI/XXX TEX INC.
By:
------------------------------------
Name:
Title:
XXX TEX WASTE SERVICE, INC.
By:
------------------------------------
Name: Xxx X. Xxxxxx
Title: President
4
77
EXHIBIT F
PLAN OF MERGER AND REORGANIZATION
This Plan of Merger and Reorganization (this "Plan") is entered into
as of __________, 1995 among RWI/Pantego I Inc., a Texas corporation ("Republic
Sub"), and Pantego I, Inc., a Texas corporation ("Pantego").
RECITALS
The boards of directors and shareholders of Republic Sub and Pantego
have determined that it is advisable and in the best interests of each such
corporation and its respective shareholders that Republic Sub be merged (the
"Merger") with and into Pantego on the terms and subject to the conditions set
forth herein, such that Pantego will be the surviving corporation and a
wholly-owned subsidiary of Republic Waste Industries, Inc., a Delaware
corporation.
ARTICLE I
THE MERGER
At the Effective Time (as defined in Article V hereof), Republic Sub
shall be merged with and into Pantego in accordance with the Texas Business
Corporation Act (the "TBCA"), and the separate existence of Republic Sub shall
cease and Pantego shall thereafter continue as the surviving corporation (the
"Surviving Corporation") under the laws of the State of Texas.
ARTICLE II
THE SURVIVING CORPORATION
A. At the Effective Time, the Articles of Incorporation of
Pantego, as in effect immediately prior to the Effective Time, shall be the
Articles of Incorporation of the Surviving Corporation, until thereafter
altered, amended or repeated in accordance with the TCBA.
78
B. At the Effective Time, the Bylaws of Pantego, as in effect
immediately prior to the Effective Time, shall be the Bylaws of the Surviving
Corporation, until thereafter altered, amended or repealed in accordance with
the TCBA.
C. At the Effective Time, the officers and directors of Pantego
shall be the officers and directors of the Surviving Corporation until their
successors are elected and have qualified.
ARTICLE III
MANNER AND BASIS OF CONVERTING SHARES
A. At the Effective Time, each share of common stock of Pantego,
$0.10 par value per share (the "Pantego Common Stock"), which shall be issued
and outstanding (other than shares of Pantego Common Stock held in treasury)
shall, by virtue of the Merger and without any action on the part of the holder
thereof, be converted into the right to receive ______________________
(________) shares of common stock, $0.01 par value per share, of Republic Waste
Industries, Inc., a Delaware corporation and the parent of Republic Sub
("Republic Common Stock"). Fractional shares of Republic Common Stock will not
be issued, instead shares of Republic Common Stock will be issued determined to
the nearest whole share of Republic Common Stock.
B. At the Effective Time, each share of Pantego Common Stock held
in treasury shall be canceled and extinguished without any conversion thereof.
C. At the Effective Time, each right to acquire shares of Pantego
Common Stock, to the extent that any such rights exist, which shall be issued
and outstanding shall, by virtue of the Merger and without any action on the
part of the holder thereof, be converted into the right to acquire
__________________ (_____) shares of Republic Common Stock.
D. Each share of common stock of Republic Sub, $1.00 par value
per share, issued and outstanding immediately prior to the Effective Time shall
be automatically converted into one share of Pantego Common Stock, which shall
be the only outstanding common stock of the Surviving Corporation immediately
following the Effective Time.
2
79
ARTICLE IV
EFFECT OF MERGER
At the Effective Time, all property, rights, privileges, powers and
franchises of Pantego and Republic Sub shall vest in the Surviving Corporation,
and all liabilities and obligations of Pantego and Republic Sub shall become
liabilities and obligations of the Surviving Corporation.
ARTICLE V
EFFECTIVE TIME
As used in this Plan, the term, "Effective Time" shall mean the date
and time of filing of Articles of Merger with the Secretary of State of the
State of Texas with respect to the Merger.
[SIGNATURES ON NEXT PAGE]
3
80
IN WITNESS WHEREOF, each of the parties has caused this Plan to be
executed on its behalf as of the date first written above.
RWI/PANTEGO I INC.
By:
------------------------------------
Name:
Title:
PANTEGO I, INC.
By:
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
4
81
EXHIBIT G
PLAN OF MERGER AND REORGANIZATION
This Plan of Merger and Reorganization (this "Plan") is entered into
as of __________, 1995 among RWI/Pantego II Inc., a Texas corporation
("Republic Sub"), and Pantego II, Inc., a Texas corporation ("Pantego").
RECITALS
The boards of directors and shareholders of Republic Sub and Pantego
have determined that it is advisable and in the best interests of each such
corporation and its respective shareholders that Republic Sub be merged (the
"Merger") with and into Pantego on the terms and subject to the conditions set
forth herein, such that Pantego will be the surviving corporation and a
wholly-owned subsidiary of Republic Waste Industries, Inc., a Delaware
corporation.
ARTICLE I
THE MERGER
At the Effective Time (as defined in Article V hereof), Republic Sub
shall be merged with and into Pantego in accordance with the Texas Business
Corporation Act (the "TBCA"), and the separate existence of Republic Sub shall
cease and Pantego shall thereafter continue as the surviving corporation (the
"Surviving Corporation") under the laws of the State of Texas.
ARTICLE II
THE SURVIVING CORPORATION
A. At the Effective Time, the Articles of Incorporation of
Pantego, as in effect immediately prior to the Effective Time, shall be the
Articles of Incorporation of the Surviving Corporation, until thereafter
altered, amended or repeated in accordance with the TCBA.
82
B. At the Effective Time, the Bylaws of Pantego, as in effect
immediately prior to the Effective Time, shall be the Bylaws of the Surviving
Corporation, until thereafter altered, amended or repealed in accordance with
the TCBA.
C. At the Effective Time, the officers and directors of Pantego
shall be the officers and directors of the Surviving Corporation until their
successors are elected and have qualified.
ARTICLE III
MANNER AND BASIS OF CONVERTING SHARES
A. At the Effective Time, each share of common stock of Pantego,
$0.10 par value per share (the "Pantego Common Stock"), which shall be issued
and outstanding (other than shares of Pantego Common Stock held in treasury)
shall, by virtue of the Merger and without any action on the part of the holder
thereof, be converted into the right to receive ______________________
(________) shares of common stock, $0.01 par value per share, of Republic Waste
Industries, Inc., a Delaware corporation and the parent of Republic Sub
("Republic Common Stock"). Fractional shares of Republic Common Stock will not
be issued, instead shares of Republic Common Stock will be issued determined to
the nearest whole share of Republic Common Stock.
B. At the Effective Time, each share of Pantego Common Stock held
in treasury shall be canceled and extinguished without any conversion thereof.
C. At the Effective Time, each right to acquire shares of Pantego
Common Stock, to the extent that any such rights exist, which shall be issued
and outstanding shall, by virtue of the Merger and without any action on the
part of the holder thereof, be converted into the right to acquire
__________________ (_____) shares of Republic Common Stock.
D. Each share of common stock of Republic Sub, $1.00 par value
per share, issued and outstanding immediately prior to the Effective Time shall
be automatically converted into one share of Pantego Common Stock, which shall
be the only outstanding common stock of the Surviving Corporation immediately
following the Effective Time.
2
83
ARTICLE IV
EFFECT OF MERGER
At the Effective Time, all property, rights, privileges, powers and
franchises of Pantego and Republic Sub shall vest in the Surviving Corporation,
and all liabilities and obligations of Pantego and Republic Sub shall become
liabilities and obligations of the Surviving Corporation.
ARTICLE V
EFFECTIVE TIME
As used in this Plan, the term, "Effective Time" shall mean the date
and time of filing of Articles of Merger with the Secretary of State of the
State of Texas with respect to the Merger.
[SIGNATURES ON NEXT PAGE]
3
84
IN WITNESS WHEREOF, each of the parties has caused this Plan to be
executed on its behalf as of the date first written above.
RWI/PANTEGO II INC.
By:
------------------------------------
Name:
Title:
PANTEGO II, INC.
By:
------------------------------------
Name: Xxx X. Xxxxxx
Title: President
4
85
EXHIBIT H
PLAN OF MERGER AND REORGANIZATION
This Plan of Merger and Reorganization (this "Plan") is entered into
as of __________, 1995 among RWI/TRUCKING I Inc., a Texas corporation
("Republic Sub"), and EETL I, Inc., a Texas corporation ("EETL").
RECITALS
The boards of directors and shareholders of Republic Sub and EETL have
determined that it is advisable and in the best interests of each such
corporation and its respective shareholders that Republic Sub be merged (the
"Merger") with and into EETL on the terms and subject to the conditions set
forth herein, such that EETL will be the surviving corporation and a
wholly-owned subsidiary of Republic Waste Industries, Inc., a Delaware
corporation.
ARTICLE I
THE MERGER
At the Effective Time (as defined in Article V hereof), Republic Sub
shall be merged with and into EETL in accordance with the Texas Business
Corporation Act (the "TBCA"), and the separate existence of Republic Sub shall
cease and EETL shall thereafter continue as the surviving corporation (the
"Surviving Corporation") under the laws of the State of Texas.
ARTICLE II
THE SURVIVING CORPORATION
A. At the Effective Time, the Articles of Incorporation of EETL,
as in effect immediately prior to the Effective Time, shall be the Articles of
Incorporation of the Surviving Corporation, until thereafter altered, amended
or repeated in accordance with the TCBA.
86
B. At the Effective Time, the Bylaws of EETL, as in effect
immediately prior to the Effective Time, shall be the Bylaws of the Surviving
Corporation, until thereafter altered, amended or repealed in accordance with
the TCBA.
C. At the Effective Time, the officers and directors of EETL
shall be the officers and directors of the Surviving Corporation until their
successors are elected and have qualified.
ARTICLE III
MANNER AND BASIS OF CONVERTING SHARES
A. At the Effective Time, each share of common stock of EETL,
$0.10 par value per share (the "EETL Common Stock"), which shall be issued and
outstanding (other than shares of EETL Common Stock held in treasury) shall, by
virtue of the Merger and without any action on the part of the holder thereof,
be converted into the right to receive ______________________ (________) shares
of common stock, $0.01 par value per share, of Republic Waste Industries, Inc.,
a Delaware corporation and the parent of Republic Sub ("Republic Common
Stock"). Fractional shares of Republic Common Stock will not be issued,
instead shares of Republic Common Stock will be issued determined to the
nearest whole share of Republic Common Stock.
B. At the Effective Time, each share of EETL Common Stock held in
treasury shall be canceled and extinguished without any conversion thereof.
C. At the Effective Time, each right to acquire shares of EETL
Common Stock, to the extent that any such rights exist, which shall be issued
and outstanding shall, by virtue of the Merger and without any action on the
part of the holder thereof, be converted into the right to acquire
__________________ (_____) shares of Republic Common Stock.
D. Each share of common stock of Republic Sub, $1.00 par value
per share, issued and outstanding immediately prior to the Effective Time shall
be automatically converted into one share of EETL Common Stock, which shall be
the only outstanding common stock of the Surviving Corporation immediately
following the Effective Time.
2
87
ARTICLE IV
EFFECT OF MERGER
At the Effective Time, all property, rights, privileges, powers and
franchises of EETL and Republic Sub shall vest in the Surviving Corporation,
and all liabilities and obligations of EETL and Republic Sub shall become
liabilities and obligations of the Surviving Corporation.
ARTICLE V
EFFECTIVE TIME
As used in this Plan, the term, "Effective Time" shall mean the date
and time of filing of Articles of Merger with the Secretary of State of the
State of Texas with respect to the Merger.
[SIGNATURES ON NEXT PAGE]
3
88
IN WITNESS WHEREOF, each of the parties has caused this Plan to be
executed on its behalf as of the date first written above.
RWI/TRUCKING I INC.
By:
------------------------------------
Name:
Title:
EETL I, INC.
By:
------------------------------------
Name: Xxx X. Xxxxxx
Title: President
4
89
EXHIBIT I
PLAN OF MERGER AND REORGANIZATION
This Plan of Merger and Reorganization (this "Plan") is entered into
as of __________, 1995 among RWI/TRUCKING II Inc., a Texas corporation
("Republic Sub"), and EETL II, Inc., a Texas corporation ("EETL").
RECITALS
The boards of directors and shareholders of Republic Sub and EETL have
determined that it is advisable and in the best interests of each such
corporation and its respective shareholders that Republic Sub be merged (the
"Merger") with and into EETL on the terms and subject to the conditions set
forth herein, such that EETL will be the surviving corporation and a
wholly-owned subsidiary of Republic Waste Industries, Inc., a Delaware
corporation.
ARTICLE I
THE MERGER
At the Effective Time (as defined in Article V hereof), Republic Sub
shall be merged with and into EETL in accordance with the Texas Business
Corporation Act (the "TBCA"), and the separate existence of Republic Sub shall
cease and EETL shall thereafter continue as the surviving corporation (the
"Surviving Corporation") under the laws of the State of Texas.
ARTICLE II
THE SURVIVING CORPORATION
A. At the Effective Time, the Articles of Incorporation of EETL,
as in effect immediately prior to the Effective Time, shall be the Articles of
Incorporation of the Surviving Corporation, until thereafter altered, amended
or repeated in accordance with the TCBA.
B. At the Effective Time, the Bylaws of EETL, as in effect
immediately prior to the Effective Time, shall be the Bylaws of the Surviving
Corporation, until thereafter altered, amended or repealed in accordance with
the TCBA.
C. At the Effective Time, the officers and directors of EETL
shall be the officers and directors of the Surviving
90
Corporation until their successors are elected and have qualified.
ARTICLE III
MANNER AND BASIS OF CONVERTING SHARES
A. At the Effective Time, each share of common stock of EETL,
$0.10 par value per share (the "EETL Common Stock"), which shall be issued and
outstanding (other than shares of EETL Common Stock held in treasury) shall, by
virtue of the Merger and without any action on the part of the holder thereof,
be converted into the right to receive ______________________ (________) shares
of common stock, $0.01 par value per share, of Republic Waste Industries, Inc.,
a Delaware corporation and the parent of Republic Sub ("Republic Common
Stock"). Fractional shares of Republic Common Stock will not be issued,
instead shares of Republic Common Stock will be issued determined to the
nearest whole share of Republic Common Stock.
B. At the Effective Time, each share of EETL Common Stock held in
treasury shall be canceled and extinguished without any conversion thereof.
C. At the Effective Time, each right to acquire shares of EETL
Common Stock, to the extent that any such rights exist, which shall be issued
and outstanding shall, by virtue of the Merger and without any action on the
part of the holder thereof, be converted into the right to acquire
__________________ (_____) shares of Republic Common Stock.
D. Each share of common stock of Republic Sub, $1.00 par value
per share, issued and outstanding immediately prior to the Effective Time shall
be automatically converted into one share of EETL Common Stock, which shall be
the only outstanding common stock of the Surviving Corporation immediately
following the Effective Time.
ARTICLE IV
EFFECT OF MERGER
At the Effective Time, all property, rights, privileges, powers and
franchises of EETL and Republic Sub shall vest in the Surviving Corporation,
and all liabilities and obligations of
2
91
EETL and Republic Sub shall become liabilities and obligations of the Surviving
Corporation.
ARTICLE V
EFFECTIVE TIME
As used in this Plan, the term, "Effective Time" shall mean the date
and time of filing of Articles of Merger with the Secretary of State of the
State of Texas with respect to the Merger.
[SIGNATURES ON NEXT PAGE]
3
92
IN WITNESS WHEREOF, each of the parties has caused this Plan to be
executed on its behalf as of the date first written above.
RWI/TRUCKING II INC.
By:
------------------------------------
Name:
Title:
EETL II, INC.
By:
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
4
