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EXHIBIT 2.9
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement") made and entered
into this 8th day of April by and between XXXXXXXXXXX AUTOMOTIVE GROUP, INC., a
GEORGIA corporation ("Xxxxxxxxxxx" or the "Absorbed Corporation") and SUNBELT
AUTOMOTIVE GROUP, INC., a GEORGIA corporation ("hereinafter Sunbelt" or the
"Surviving Corporation") (Sunbelt and Xxxxxxxxxxx are sometimes hereinafter
referred to as the "Constituent Corporations").
RECITALS
WHEREAS, Xxxxxxxxxxx is a corporation duly organized and existing under
the laws of the State of Georgia;
WHEREAS, Sunbelt is a corporation duly organized and existing under
the laws of the State of Georgia;
WHEREAS, the respective Boards of Directors of Sunbelt and Xxxxxxxxxxx
xxxx it advisable and in the best interests of the corporations' respective
shareholders that Xxxxxxxxxxx be acquired by Sunbelt through a merger
("Merger") of Xxxxxxxxxxx and Sunbelt, in which Sunbelt shall acquire all of
the business, assets and goodwill, subject to the liabilities, of Xxxxxxxxxxx
and that shares of Xxxxxxxxxxx common stock shall be converted to shares of
Sunbelt common stock on the terms and conditions hereinafter set forth;
WHEREAS, under proper approval and authorization of their respective
Boards of Directors and Shareholders, Sunbelt and Xxxxxxxxxxx desire to enter
into this Agreement to merge Xxxxxxxxxxx into Sunbelt in accordance with the
applicable provisions of the Georgia Business Corporation Code, as amended (the
"Georgia Code"), which merger is intended to qualify as a tax free
reorganization under sec.368 of the Internal Revenue Code of 1986, as amended.
NOW, THEREFORE, in consideration of the premises and the mutual
warranties and covenants set forth herein, the parties hereto agree as follows:
SECTION 1.0
MERGER
1.1. Adoption of Plan. Sunbelt and Xxxxxxxxxxx hereby adopt the plan
of reorganization encompassed by this Agreement and hereby agree that
Xxxxxxxxxxx shall merge with and into Sunbelt on the terms and conditions set
forth herein. Xxxxxxxxxxx will, upon the filing of the Articles or Certificate
of Merger (or upon the effective date set forth in the Articles or Certificate
of Merger) contemplated by the Georgia Code Section 14-2-1105 (the "Effective
Date"), merge with and into Sunbelt, and thereafter the separate existence of
Xxxxxxxxxxx will cease. As of the Effective Date, Sunbelt shall succeed to all
of the rights, privileges, powers and property, including, without limitation,
all contracts, patents, copyrights and other assets of every kind and
description, of Xxxxxxxxxxx, and Sunbelt shall assume all of the obligations
and liabilities of Xxxxxxxxxxx, excepting and excluding, (i) the minute books
and stock records of Xxxxxxxxxxx insofar as they relate solely to its
organization and capitalization, and (ii) the rights of Xxxxxxxxxxx arising out
of this Agreement. The Merger will occur in accordance with the Georgia Code.
1.2. Pending and Subsequent Actions. Xxxxxxxxxxx will cooperate, and
will cause its officers, directors and other employees to cooperate, with
Sunbelt on and after the Effective Date
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(i) in effecting the collection of all receivables and other items owing to
Xxxxxxxxxxx and (ii) in prosecuting claims and furnishing information, testimony
and other assistance in connection with all actions, proceedings, arrangements
or disputes based upon contracts, arrangements or acts of Xxxxxxxxxxx which
were in effect or which occurred on or prior to the Merger.
1.3. Compliance with Georgia Code. The acts and things required to be
done by the Georgia Code in order to make this Agreement effective, including
the submission of this Agreement to the shareholders of both of the Constituent
Corporations and the filing of the Articles or Certificate of Merger in the
manner provided for in the Georgia Code, shall be attended to and done by the
proper officers of the Constituent Corporations as soon as practicable.
SECTION 2.0
DELIVERY OF STOCK; ARTICLES, BYLAWS, DIRECTORS,
OFFICERS OF SURVIVING CORPORATION, ASSUMPTION OF LIABILITIES
2.1. Conversion of Stock. Effective as of the Effective Date, each
stock certificate representing shares of Xxxxxxxxxxx common stock, along with
any and all accrued and unpaid dividend rights with respect thereto, shall be
deemed to represent a corresponding number of converted shares of Sunbelt
common stock (the "Converted Shares"), and each right to purchase shares of
Xxxxxxxxxxx common stock shall be deemed to represent a right to purchase the
respective number of Converted Shares of Sunbelt common stock, in each case as
is determined by Section 2.2.
2.2. Conversion Shares. For purposes of this Agreement "Converted
Shares" shall mean the number of shares of Sunbelt common stock into which each
share of Xxxxxxxxxxx common stock will be converted on the Effective Date. All
Xxxxxxxxxxx common stock shall be converted, as a result of the Merger, into a
number of Converted Shares which, in the aggregate, shall have a market value
(based on the initial public offering price of the Sunbelt common stock as of
the date the IPO is priced) equal to the total market value of Sunbelt minus
the following (all as determined as of the pricing date of the IPO): (a) the
aggregate market value of all Sunbelt common stock that is issued to the public
pursuant to the IPO, (b) the aggregate market value of all Sunbelt common stock
that is issued to the shareholders of Day's Chevrolet, Inc., Xxxxxxxxx
Oldsmobile-Cadillac, Inc., Xxxx Xxxx, Inc. and Xxxx Xxxx Xxxxxx, Inc., (c) the
aggregate market value of the Sunbelt common stock reserved pursuant to the
Sunbelt 1997 and 1998 Stock Incentive Plan, on a fully liquidated basis, and
(d) the aggregate market value of all shares of Sunbelt common stock issued to
officers of Sunbelt; provided, however, that said aggregate market value of the
Converted Shares (the "Converted Shares Value") shall be no less than
Thirty-Seven Million Dollars ($37,000,000.00). The Converted Shares shall be
divided amongst the stockholders of Xxxxxxxxxxx on a pro-rata basis on their
stock ownership interest in Xxxxxxxxxxx.
2.3. Issuance and Delivery of Sunbelt Common Stock. Upon surrender of
certificates representing Xxxxxxxxxxx common stock, Sunbelt will issue and
deliver, as provided in Section 2.4, certificates representing a number of
whole shares of its common stock determined pursuant to Section 2.2 hereof.
Fractional shares of Sunbelt common stock shall not be issued, but their cash
value, as determined in good faith by the Board of Directors of Sunbelt, shall
be paid for the fractional shares.
2.4. Surrender and Conversion of Xxxxxxxxxxx Share Certificates. All
persons holding shares of Xxxxxxxxxxx common stock shall surrender the
certificates representing the shares of Xxxxxxxxxxx common stock, either by
certified mail, return receipt requested, or in person to: Xxxxxxx X. Xxxxxx,
Chief Executive Officer of Sunbelt, at 0000 Xxxxxxxxx-Xxxxxxxx Xxxx, Xxxxxxxx
X, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, or such other location as Sunbelt shall
advise
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such holders in writing. Upon receipt of the surrendered share certificate(s) of
Xxxxxxxxxxx common stock, a replacement certificate reflecting shares of Sunbelt
common stock, in a number prescribed by Section 2.2 hereof, shall be issued and
caused to be delivered in accordance with this Agreement.
2.5 Articles, Bylaws, Directors and Officers of Surviving Corporation.
2.5.1. Articles of Incorporation and Bylaws. From and after the
Effective Date, the Articles of Incorporation of Sunbelt, as in effect at such
date, shall be the Articles of Incorporation of the Surviving Corporation and
shall continue in effect until the same shall be altered, amended or repealed as
therein provided or as provided by law. From and after the Effective Date, the
Bylaws of Sunbelt, in effect at such date, shall be the Bylaws of the Surviving
Corporation and shall continue in effect until the same shall be altered,
amended or repealed as therein provided or as provided by law.
2.5.2 Directors and Officers. The persons who are directors and
officers of Sunbelt immediately prior to the Effective Date shall continue as
the directors and officers of the Surviving Corporation and shall continue to
hold office as provided in the Bylaws of the Surviving Corporation, Sunbelt.
2.6 Employee Plans.
2.6.1. Employment Agreements. As of the Effective Date, Sunbelt will
assume all employment agreements and employment, salary and fringe benefit
arrangements and obligations of Xxxxxxxxxxx.
2.6.2. Other Agreements. As of the Effective Date, Sunbelt will
assume mutatis mutandis any and all agreements of Xxxxxxxxxxx, and agrees to be
bound by the terms and conditions of each such agreement.
SECTION 3.0
DISSENTING RIGHTS
3.1 Notwithstanding anything in this Agreement to the contrary, shares of
Xxxxxxxxxxx'x common stock that are issued and outstanding immediately prior to
the Effective Date and that are held by stockholders who have not voted such
shares in favor of the Merger and who have delivered a written demand for
appraisal of such shares in the manner provided in Georgia Code Section
14-2-1301 et. seq. ("Dissenting Shares") shall have no right to receive any
cash payment or other consideration based upon the applicable exchange rate
unless and until such holder shall have failed to perfect, or shall have
effectively withdrawn or lost, such holder's right to appraisal and payment
under Georgia Code Section 14-2-1301 et. seq. If such holder shall have so
failed to perfect, or shall have effectively withdrawn or lost such right, such
holder's shares of Xxxxxxxxxxx'x common stock shall thereupon be deemed to have
been cancelled and converted as described in Section 2 at the Effective Date,
and each such share shall represent the right to receive the appropriate cash
payment based upon the applicable exchange rate. Xxxxxxxxxxx shall give Sunbelt
prompt notice of any demands received by Xxxxxxxxxxx for appraisal of its
shares.
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SECTION 4.0
XXXXXXXXXXX REPRESENTATIONS
AND WARRANTIES
4.1. Corporate Organization. Xxxxxxxxxxx is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Georgia.
4.2. Validity of Transaction. Xxxxxxxxxxx has full right, power and
authority to enter into this Agreement and to perform its obligations
hereunder. This Agreement has been duly authorized, executed and delivered by
Xxxxxxxxxxx and constitutes the valid and legally binding obligation of
Xxxxxxxxxxx.
4.3. Capitalization. Immediately prior to the Effective Date, the
authorized capital stock of Xxxxxxxxxxx shall consist solely of 500,000 shares
of common stock, of which 72,000 shares will be issued and outstanding.
Xxxxxxxxxxx has no agreement or understanding to issue any other or additional
capital stock.
4.4. Litigation. Xxxxxxxxxxx is not a party to any litigation or any
governmental proceeding which would materially impact its financial condition
and, to the best of its knowledge, there is no valid basis for any such
litigation or proceeding. There is no judgment or order of any court or
governmental authority in effect against Xxxxxxxxxxx which would materially
impact its financial condition.
SECTION 5.0
SUNBELT REPRESENTATIONS
AND WARRANTIES
5.1. Corporate Organization. Sunbelt is a corporation duly organized,
validly existing and in good standing under the laws of the State of Georgia,
and is duly qualified to do business as a foreign corporation in each other
jurisdiction in which the failure to so qualify would have a material adverse
effect on its business as presently conducted and as proposed to be conducted.
5.2. Validity of Transaction. Sunbelt has full right, power and
authority to enter into this Agreement and to perform its obligations
hereunder. This Agreement has been duly authorized, executed and delivered by
Sunbelt and constitutes the valid and legally binding obligation of Sunbelt.
5.3. Capitalization. Immediately prior to the Effective Date, the
authorized capital stock of Sunbelt shall consist solely of 450,000,000 shares
of Common stock, $.001 par value, of which 3,000 shares will be issued and
outstanding, and 50,000,000 shares of Preferred Stock, $.001 par value.
5.4. Litigation. Sunbelt is not a party to any litigation or any
governmental proceeding and, to the best of its knowledge there is no valid
basis for any such litigation or proceeding. There is no judgment or order of
any court or governmental authority in effect against Sunbelt.
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SECTION 6.0
SUNBELT'S CONDITIONS
PRECEDENT TO CLOSE
6.1. Performance of Acts and Undertakings of Xxxxxxxxxxx. Each of the
acts and undertakings of Xxxxxxxxxxx to be performed on or before the Closing
Date pursuant to the terms of this Agreement shall have been duly performed.
6.2. Certified Resolutions. Xxxxxxxxxxx shall have furnished Sunbelt
with a copy, certified by Xxxxxxxxxxx'x secretary, of (1) a resolution or
resolutions duly adopted by Xxxxxxxxxxx'x board of directors authorizing and
approving this Agreement and directing that it be submitted to a vote of
Xxxxxxxxxxx'x board of directors authorizing and approving this Agreement and
directing that it be submitted to a vote of Xxxxxxxxxxx'x shareholders, and (2)
a resolution or resolutions adopting this Plan and Agreement of Merger, duly
approved by the holders of at least a majority of the total number of issued
and outstanding shares of common stock of Xxxxxxxxxxx.
6.3. Approvals From Authorities. Sunbelt shall have received, or shall
have satisfied itself that it will receive, in form satisfactory to Sunbelt,
all necessary approvals of the transactions contemplated by this Agreement from
authorities having any jurisdiction over the business of Xxxxxxxxxxx or any
Xxxxxxxxxxx Subsidiary, so that Xxxxxxxxxxx and Xxxxxxxxxxx Subsidiaries may
continue to carry on their business as presently conducted after consummation
of the Merger; and no such approval shall have been withdrawn or suspended.
6.4. Consents. All consents of other parties necessary to permit
consummation of the Merger shall have been obtained.
6.5. Adoption of Merger by Shareholders. At least a majority of the
outstanding shares of Xxxxxxxxxxx Common stock shall have been voted for the
adoption of this Agreement and Plan of Merger.
6.6. Filing of Articles or Certificates of Merger of Georgia. The
Articles or Certificate of Merger shall have been filed in the office of the
Secretary of State Articles or Certificates of for the Merger to become
effective, or Sunbelt shall have satisfied itself that all such filings will be
or are capable of being made effective as of the Closing Date.
6.7. Registration Statement Effective. The Registration Statement on
Form S-1 filed, or to be filed, pursuant to the Securities Act of 1933 with the
Securities and Exchange Commission shall have been declared effective and shall
not be subject to a stop order or any threatened stop order.
SECTION 7.0
XXXXXXXXXXX'X CONDITIONS PRECEDENT TO CLOSE
Xxxxxxxxxxx'x obligation to consummate the Merger is subject to the
satisfaction on or prior to the Closing Date of the following conditions:
7.1. Performance of Acts and Undertakings by Sunbelt. Each of
Sunbelt's acts and undertakings to be performed on or before the Closing Date
pursuant to this Agreement shall have been performed.
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7.2. Certified Resolutions. Sunbelt shall have furnished Xxxxxxxxxxx
with certified copies of (1) resolutions duly adopted by the board of
directors of Sunbelt authorizing and approving the execution and delivery of
this Plan and Agreement of Merger and authorizing the consummation of the
transactions contemplated by this Agreement, and (2) resolutions adopting the
Plan of Merger approved by the holders of at least a majority of the total
number of issued and outstanding shares of common stock of Sunbelt.
7.3. Shareholder Vote. At least a majority of the outstanding shares
of common stock of Sunbelt shall have been voted for the adoption of this
Agreement and Plan of Merger.
SECTION 8.0
FURTHER ASSURANCES
Sunbelt and Xxxxxxxxxxx each agrees that from time to time, as and when
requested by the other, it will execute, acknowledge, deliver and file all
proper deeds, assurances, assignments, bills of sale, assumptions and other
documents, and do, or cause to be done, all other acts and things necessary or
proper in order to vest, perfect, assure or confirm in Sunbelt title to and
possession of all the property, rights, privileges, powers, franchises, bank
accounts, contracts, patents, copyrights, and stated liabilities of
Xxxxxxxxxxx, or otherwise necessary or proper to carry out the intent and
purposes of this Agreement.
SECTION 9.0
TERMINATION OF THIS AGREEMENT
This Agreement and the transactions contemplated under this Agreement
may be terminated at any time prior to the Closing Date, either before or after
the meeting of Xxxxxxxxxxx'x shareholders:
(a) By mutual consent of Sunbelt and Xxxxxxxxxxx;
(b) By Xxxxxxxxxxx or by Sunbelt if the Effective Date referred
to in paragraph 1.1 has not occurred by January 1, 1999.
(c) By Sunbelt or Xxxxxxxxxxx if the Registration Statement for
Sunbelt's IPO has not been declared effective by July 1, 1998.
SECTION 10.0
RIGHT TO PROCEED
In the event that this Agreement is terminated pursuant to Section 9
because of the failure to satisfy any of the conditions specified in Section 6
or Section 7, all further obligations of Sunbelt and of Xxxxxxxxxxx under this
Agreement shall terminate without further liability of Sunbelt to Xxxxxxxxxxx
or Xxxxxxxxxxx to Sunbelt.
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SECTION 11.0
RETURN OF DOCUMENTS IN EVENT OF TERMINATION
In the event of the termination of this Agreement for any reason,
Sunbelt will return to Xxxxxxxxxxx all documents, work papers, and other
materials (including copies) relating to the transactions contemplated by this
Agreement, whether obtained before or after execution of this Agreement.
Sunbelt will not use any information so obtained for any purpose, and will take
all practicable steps to have such information kept confidential
SECTION 12.0
MISCELLANEOUS
12.1. Amendments. At any time before or after approval and adoption
by the shareholders of Xxxxxxxxxxx, this Agreement may be amended in any manner
(except that the provisions of Section 2 may not be amended without the approval
of the shareholders of Xxxxxxxxxxx) as may be determined in the judgment of the
respective Boards of Directors of Sunbelt and Xxxxxxxxxxx to be necessary,
desirable or expedient in order to clarify the intention of the parties hereto
or to effect or facilitate the purposes and intentions of this Agreement
12.2. Attorney Fees and Costs in Event of Termination. In the event of
the termination of this Agreement for any reason, each party shall bear its own
costs and expenses, including attorney fees.
12.3. Public Announcement. Neither Sunbelt nor Xxxxxxxxxxx, without
the consent of the other, shall make any public announcement or issue any press
release with respect to this Agreement or the transactions contemplated by it,
which consent shall not be unreasonably withheld.
12.4. Meeting of Xxxxxxxxxxx'x Shareholders. Xxxxxxxxxxx shall take
all necessary steps to call a meeting of its shareholders, if unanimous consent
is not obtained, to be held no later than ten (10) days from the date of this
Agreement.
12.5. Governing Law; Successors and Assigns; Counterparts; Entire
Agreement. This Agreement (a) shall be construed under and in accordance with
the laws of the state of Georgia, without regard to conflict or choice of law
principles; (b) shall be binding on and shall inure to the benefit of the
parties to the Agreement and their respective successors and assigns; (c) may be
executed in one or more counterparts, all of which shall be considered one and
the same agreement, and shall become effective when one or more counterparts
shall have been signed by each of the parties and delivered to Sunbelt and
Xxxxxxxxxxx; and (d) embodies the entire agreement and understanding,
superseding all prior agreements and understanding, superseding all prior
agreements and understandings between Xxxxxxxxxxx and Sunbelt relating to
the subject matter of this Agreement.
12.6. Notices. All notices, requests, demands, and other
communications under this Agreement shall be in writing and shall be deemed to
have been duly given on the date of service if served personally on the party
to whom notice is to be given, on the first day after delivery to or pickup by
an overnight courier (e.g., Federal Express) with instructions for next day
delivery, or on the third day after mailing if mailed to the party to whom
notice is to be given, by first class mail, registered or certified, postage
prepaid, and properly addressed as follows:
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To Xxxxxxxxxxx and its Subsidiaries at:
0000 Xxxx Xxxxxxx
Xxxxxx, XX 00000
Attn.: Xxxxxx X. Xxxxxxxxxxx, Xx.
To Sunbelt and its Subsidiary at:
To Sunbelt and its Subsidiaries at:
0000 Xxxxxxxxx Xxxxxxxx Xxxx
Xxxxxxxx X, Xxxxx 000
Xxxxxxx, XX 00000
Attn: General Counsel
Any party may change its address for purposes of this paragraph by
giving the other parties written notice of the new address in the manner set
forth above.
12.7. Expenses. If the Merger contemplated hereby becomes effective,
all expenses incurred hereunder shall be borne by the Surviving Corporation.
If, for any reason other than breach of the covenants of the parties set forth
herein, the Merger shall not become effective or shall be abandoned, then each
of the Constituent Corporations shall bear its own expenses, separately
incurred in connection herewith, with no liability to the other party hereto,
and each shall pay one-half of the expenses incurred by them jointly.
12.8. No Broker. Each of the Constituent Corporations represents to
the other that it has not incurred and will not incur any liability for
brokerage fees or agents' commissions in connection with the Agreement and the
Merger contemplated hereby.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by their duly authorized officers and their corporate
seals to be hereto affixed effective as of the date first written above.
XXXXXXXXXXX AUTOMOTIVE GROUP, INC.
a Georgia corporation
By:/s/ Xxxxxx X. Xxxxxxxxxxx, Xx.
--------------------------------
Xxxxxx X. Xxxxxxxxxxx, Xx.,
President
ATTEST:
/s/ Xxxxxxx X. Xxxxxx
------------------------
Xxxxxxx X. Xxxxxx
Secretary/Treasurer
[Corporate Seal]
(SIGNATURES CONTINUED ON NEXT PAGE)
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SUNBELT AUTOMOTIVE GROUP, INC.,
a Georgia corporation
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx, Secretary
and General Counsel
ATTEST:
/s/ Xxxxx X. Xxxxx
-----------------------------
Xxxxx X. Xxxxx, Treasurer
and Assist. Secretary
[Corporate Seal]
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FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this
"Amendment") is entered into as of June 19, 1998 by and among XXXXXXXXXXX
AUTOMOTIVE GROUP, INC., a Georgia corporation ("BAG") and SUNBELT AUTOMOTIVE
GROUP, INC., a Georgia corporation ("Sunbelt"). BAG and Sunbelt are referred to
individually as a "Party" and collectively as the "Parties."
W I T N E S S E T H:
WHEREAS, the Parties are parties to that certain Agreement and Plan of
Merger entered into as of April 8, 1998 (the "Agreement"); and
WHEREAS, the Parties desire to amend the Agreement, with such
amendment to be effective as set forth in this Amendment.
NOW, THEREFORE, in consideration of the mutual terms, conditions and
other agreements set forth herein and in the Agreement, the Parties hereto
hereby agree as follows:
1. EFFECTIVE DATE OF AMENDMENT. The Parties agree that this Amendment
shall be effective as of the date first set forth above.
2. AMENDMENTS TO AGREEMENT. The Parties agree that the following sections
of the Agreement shall be amended as follows:
a. Section 9.0(c) of the Agreement shall be deleted in its
entirety and the following provision shall be inserted in lieu thereof:
(c) By Sunbelt or Xxxxxxxxxxx if the Registration Statement for
Sunbelt's IPO has not been declared effective on or before July 31,
1998.
b. Sections 2.2 and 2.3 of the Agreement shall be deleted in
their entirety and the following provisions shall be inserted in lieu thereof:
2.2 Converted Shares. For purposes of this Agreement, "Converted
Shares" shall mean the number of shares of Sunbelt common
stock into which each share of Xxxxxxxxxxx common stock will
be converted on the Effective Date.
2.3 Issuance and Delivery of Sunbelt Common Stock. Upon surrender
of certificates representing Xxxxxxxxxxx common stock,
Sunbelt will issue and deliver, as provided in Section 2.4
hereof, certificates representing a number of whole shares of
Sunbelt's unregistered common stock determined by the
following exchange rate: subject to the terms and conditions
of this Agreement, fifty-two and 78/100 (52.78) shares of
Sunbelt's unregistered
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common stock shall be issued in exchange for each one (1)
share of Xxxxxxxxxxx common stock issued and outstanding as
of the Effective Date. Fractional shares of Sunbelt common
stock shall not be issued, but their cash value, as
determined in good faith by the Board of Directors of
Sunbelt, shall be paid for any fractional shares.
c. The words "3,000 shares" in Section 5.3 of the Agreement
shall be deleted and the words "255,202 shares" shall be inserted in lieu
thereof.
3. USE OF DEFINED TERMS; ENTIRE AGREEMENT. All capitalized terms that are
used but not expressly defined in this Amendment have the meanings ascribed to
them in the Agreement, and the definitions of those terms in the Agreement are
incorporated by reference in this Amendment. Each reference to the Agreement
shall be deemed to refer to the Agreement as amended by this Amendment. This
Amendment and the documents contemplated by it record the final, complete, and
exclusive understanding between the Parties regarding the modification of the
Agreement described herein. Except as amended and modified by this Amendment
the Agreement remains in full force and effect in accordance with its
respective terms.
4. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the laws of the State of Georgia without giving effect to any
choice or conflict of law provision or rule that would cause the laws of any
other jurisdiction to apply.
IN WITNESS WHEREOF, the Parties have caused this Amendment to be duly
executed, effective as of the date and year first above written.
"BAG:"
ATTEST: XXXXXXXXXXX AUTOMOTIVE GROUP, INC.
BY: BY: /s/ Xxxxxx X. Xxxxxxxxxxx, Xx.
-------------------------------- --------------------------------
Xxxxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxxxxx, Xx.
Secretary/Treasurer President
[CORPORATE SEAL]
"SUNBELT:"
ATTEST: SUNBELT AUTOMOTIVE GROUP, INC.
BY: BY: /s/ S. C. Xxxxxxx
-------------------------------- --------------------------------
Name: Name: /s/ Xxxxxxx X. Xxxxxxx
-------------------------- --------------------------
Title: Title: Secretary
-------------------------- --------------------------
[CORPORATE SEAL]
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SECOND AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
This SECOND AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this
"Amendment") is entered into as of July 30, 1998 by and among XXXXXXXXXXX
AUTOMOTIVE GROUP, INC., a Georgia corporation ("BAG"), and SUNBELT AUTOMOTIVE
GROUP, INC., a Georgia corporation ("Sunbelt"). BAG and Sunbelt are referred to
individually as a "Party" and collectively as the "Parties."
W I T N E S S E T H :
WHEREAS, the Parties are parties to that certain Agreement and Plan of
Merger entered into as of April 8, 1998, which was amended by a First Amendment
to Agreement and Plan of Merger dated June 19, 1998 (the "Agreement"); and
WHEREAS, the Parties desire to further amend the Agreement, with such
amendment to be effective as set forth in this Amendment.
NOW, THEREFORE, in consideration of the mutual terms, conditions and
other agreements set forth herein, the Parties hereto hereby agree as follows:
1. EFFECTIVE DATE OF AMENDMENT. The Parties agree that this Amendment
shall be effective as of the date first set forth above.
2. AMENDMENTS TO AGREEMENT. The Parties agree that the Agreement shall be
amended as follows:
a. Section 9.0(c) of the Agreement shall be deleted in its entirety
and the following provision shall be inserted in lieu thereof:
"(c) By Sunbelt or Xxxxxxxxxxx if the Registration Statement for
Sunbelt's IPO has not been declared effective on or before
September 1, 1998."
b. A new Section 1.4 shall be inserted which will read as follows:
"1.4 Filing of Certificate of Merger. Sunbelt shall, pursuant to
Section 14-2-1105 of the Georgia Business Corporation Code, file
a Certificate of Merger substantially in the form attached
hereto as Exhibit "A" with the Secretary of State immediately
upon the occurrence of the following two conditions:
(i) the Registration Statement of Sunbelt has been declared
effective by the Securities and Exchange Commission, and
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(ii) the Underwriting Agreement between Sunbelt and Xxxxxxx
Xxxxx & Associates, Inc. has been signed by both parties."
3. USE OF DEFINED TERMS; ENTIRE AGREEMENT. All capitalized terms that are
used but not expressly defined in this Amendment have the meanings ascribed to
them in the Agreement, and the definitions of those terms in the Agreement are
incorporated by reference in this Amendment. Each reference to the Agreement
shall be deemed to refer to the Agreement as amended by this Amendment and the
prior Amendment dated June 19, 1998. This Amendment and the documents
contemplated by it record the final, complete, and exclusive understanding
between the Parties regarding the modification of the Agreement described
herein. Except as amended and modified by this Amendment and the prior Amendment
dated June 19, 1998, the Agreement remains in full force and effect in
accordance with its respective terms.
4. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the laws of the State of Georgia without giving effect to any
choice or conflict of law provision or rule that would cause the laws of any
other jurisdiction to apply.
IN WITNESS WHEREOF, the Parties have caused this Amendment to be duly executed,
effective as of the date and year first above written.
"BAG:"
ATTEST: XXXXXXXXXXX AUTOMOTIVE GROUP, INC.
BY: /s/ Xxxxxxx X. Xxxxxx BY: /s/ Xxxxxx X. Xxxxxxxxxxx, Xx.
------------------------------ ----------------------------------
Name: Xxxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxxxxxx, Xx.
------------------------ ----------------------------
Title: Sec. Title: Pres.
------------------------ ----------------------------
[CORPORATE SEAL]
"SUNBELT:"
ATTEST: SUNBELT AUTOMOTIVE GROUP, INC.
BY: /s/ Xxxxxxxx X. Xxxxxx BY: /s/ Xxxxxxx X. Xxxxxx
------------------------------ ----------------------------------
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxx
------------------------- ----------------------------
Title: Ass't Sec. Title: Pres.
------------------------ ----------------------------
[CORPORATE SEAL]
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