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EXHIBIT 2.3
MERGER AGREEMENT
This Merger Agreement (this "Agreement") is entered into as of
November 13, 1995 by and among Republic Waste Industries, Inc., a Delaware
corporation ("Republic"); RI/FCC Mergersub, Inc. ("RI/FCC"), RI/FWS Mergersub,
Inc. ("RI/FWS"), RI/PD Mergersub, Inc. ("RI/PD"), RI/FV Mergersub, Inc.
("RI/FV"), and RI/Investment Co., Inc. ("RI/Investment"), each a South
Carolina corporation and wholly-owned subsidiary of Republic (sometimes
hereinafter collectively referred to as the "Republic Merger Subs", and
together with Republic, the "Republic Companies"); Xxxxxxx Waste Systems, Inc.
("Xxxxxxx Waste"), Xxxxxxx Container Co., Inc. ("Xxxxxxx Container"), Xxxx-Vac,
Inc. ("Xxxx-Vac"), Pepperhill Development Co., Inc. ("Pepperhill"), and GF/WWF,
Inc. ("GF/WWF"), each a South Carolina corporation (sometimes hereinafter
collectively referred to as the "Xxxxxxx Companies"); and the shareholders of
the Xxxxxxx Companies, Xxxxxx X. Xxxxxxx ("Xxxxxxx"), Xxxxxx X. Xxxxxxx
("Xxxxxxx"), G. Xxxxx Xxxxxxx, S. Xxxxxxx Xxxxxxx, Xxxxx X. Xxxxxxxx, Xxxxx X.
Xxxxx, Xxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxxx and Xxx X. Xxxxxxxxxxxx (sometimes
hereinafter collectively referred to as the "Shareholders", and Xxxxxxx and
Xxxxxxx are sometimes hereinafter collectively referred to as the "Control
Shareholders"). Certain other capitalized terms used herein are defined in
Article XI.
RECITALS
The Boards of Directors of Republic and the Xxxxxxx Companies have
determined that it is in the best interests of their respective shareholders
for Republic to acquire the Xxxxxxx 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 Xxxxxxx Companies so that the Xxxxxxx Companies continue as the surviving
corporations (the "Surviving
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Corporations"). As a result, the Xxxxxxx Companies will become wholly-owned
subsidiaries of Republic.
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 annexed hereto as Exhibits A
through E (the "Plans of Merger"), the Republic Merger Subs will be merged with
and into the Xxxxxxx Companies (the "Mergers") as follows:
(a) RI/FCC will be merged with and into Xxxxxxx
Container;
(b) RI/FWS will be merged with and into Xxxxxxx Waste;
(c) RI/PD will be merged with and into Pepperhill;
(d) RI/FV will be merged with and into Xxxx-Vac; and
(e) RI/Investment will be merged with and into GF/WWF.
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
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Republic Merger Subs shall cease and each of the Xxxxxxx Companies shall
continue as the 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 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., 000 Xxxxxxxx Xxxxxx, 00xx
Xxxxx, Xxxxx, Xxxxxxx 00000, or such other place as the parties may otherwise
agree. The parties agree to use their best efforts to consummate the Closing
on or before November 30, 1995.
1.3 FILING OF ARTICLES OF MERGER. At the time of the Closing,
the parties shall cause the Mergers to be consummated by filing duly executed
Articles of Merger with respect to each of the Mergers (with the completed
Plans of Merger annexed thereto) with the Secretary of State of the State of
South Carolina, in such form as Republic and the Xxxxxxx Companies determine is
required by and is in accordance with the relevant provisions of the South
Carolina Business Corporation Act (the "SCBCA") (the date and time of such
filing is referred to herein as the "Effective Date" or "Effective Time").
1.4 PLANS OF MERGER. Pursuant to the Plans of Merger, an
aggregate of 3,105,244 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 the issued and outstanding shares of capital stock of each of the
Xxxxxxx Companies as follows:
(a) 217,732 shares of Republic Common Stock will be
issued in exchange for all of the issued and outstanding shares of
common stock of Xxxxxxx Waste;
(b) 1,780,436 shares of Republic Common Stock will be
issued in exchange for all of the issued and outstanding shares of
common stock of Xxxxxxx Container;
(c) 846,276 shares of Republic Common Stock will be
issued in exchange for all of the issued and outstanding shares of
common stock of Xxxx-Vac;
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(d) 200,000 shares of Republic Common Stock will be
issued in exchange for all of the issued and outstanding shares of
common stock of Pepperhill; and
(e) 60,800 shares of Republic Common Stock will be
issued in exchange for all of the issued and outstanding shares of
common stock of GF/WWF.
1.5 DELIVERY OF CERTIFICATES. At the Closing, each holder of
shares of capital stock of the Xxxxxxx Companies (the "Xxxxxxx Common Stock")
shall deliver the certificates representing such shares to Republic for
cancellation, and Republic shall deliver one or more certificates representing
the shares of Republic Common Stock issued pursuant to Section 1.4 to each such
holder (rounded to the nearest whole share). The shares of Republic Common
Stock issuable by Republic in exchange for the Xxxxxxx Common Stock in the
Mergers are sometimes referred to herein as the "Republic Shares," and will be
validly issued, fully paid and non-assessable, free and clear of all liens and
encumbrances, except as set forth in Schedule 3.5.
1.6 ACCOUNTING TREATMENT. The parties hereto acknowledge and
agree that the transactions contemplated hereby shall be treated as a pooling
of interests combination.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF THE REPUBLIC COMPANIES
As a material inducement to the Xxxxxxx Companies and to each of the
Shareholders to enter into this Agreement and to consummate the transactions
contemplated hereby, each of the Republic Companies jointly and severally make
the following representations and warranties to the Xxxxxxx Companies and 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 Republic Merger Sub is a corporation duly organized, validly existing and
in good standing under the laws of the State of South Carolina. Each Republic
Merger Sub is
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a wholly-owned subsidiary of Republic, within the meaning of Section
368(a)(2)(E) of the Internal Revenue Code and Rev. Rul. 74-564, 1974-2 C.B.
124.
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, free and clear of all liens and
encumbrances, except as set forth in Schedule 3.5.
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 CAPITALIZATION. The authorized capital stock of Republic
consists of 350,000,000 shares of Republic Common Stock and 5,000,000 shares of
preferred stock. As of November 7, 1995, (i) 62,583,074 shares of Republic
Common Stock were validly issued and outstanding, fully paid and nonassessable
and not issued in violation of any preemptive right of any stockholder of
Republic,
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and (ii) no shares of preferred stock were issued and outstanding. The
Republic Shares to be issued in the Merger will be "voting stock" within the
meaning of the Internal Revenue Code.
2.7 CONSENTS AND APPROVALS; NO VIOLATION. Neither the execution
and delivery of this Agreement by Republic, nor the consummation by Republic of
the transactions contemplated hereby, nor compliance by Republic with any of
the provisions hereof will (a) conflict with or result in any breach of any
provision of its First Amended and Restated Certificate of Incorporation, (b)
violate, conflict with, constitute a default (or an event which, with notice or
lapse of time or both, would constitute a default) under, or result in the
termination of, or accelerate the performance required by, or result in a right
of termination or acceleration of, or result in the creation of any lien, upon
any of the properties or assets of Republic or any of its subsidiaries (the
"Republic Subsidiaries") under any of the terms, conditions or provisions of
any contract or lien, to which Republic or any Republic Subsidiary is a party
or to which they or any of their respective properties or assets may be
subject, except for such violations, conflicts, breaches, defaults,
terminations, accelerations or creations of liens or other encumbrances, which,
individually or in the aggregate, will not have a Material Adverse Effect on
Republic, (c) violate any judgment, ruling, order, writ, injunction, decree,
statute, rule or regulation applicable to Republic or any Republic subsidiary
or any of their respective properties or assets, except for such violations
which, individually or in the aggregate, will not have a Material Adverse
Effect on Republic, or (d) require any consent, approval, authorization or
permit of or from, or filing with or notification to, any Governmental
Authority except (i) pursuant to the Exchange Act and the Securities Act, (ii)
filings required under the securities or blue sky laws of the various states,
(iii) filings required under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act
of 1976, as amended (the "HSR Act"), (iv) consents, approvals, authorizations,
permits, filings or notifications which have either been obtained or made prior
to the Closing or which, if not obtained or made, will neither, individually or
in the aggregate, have a Material Adverse Effect on Republic nor restrict
Republic's legal authority to execute and deliver this Agreement and consummate
the transactions contemplated hereby, or (v) any filings required to be made by
the Xxxxxxx Companies or the Shareholders.
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2.8 REPORTS AND FINANCIAL STATEMENTS. Within the last three
years, except where failure to have done so did and would not have a Material
Adverse Effect on Republic, Republic has filed all reports, registrations and
statements, together with any required amendments thereto, that it was required
to file with the SEC, including, but not limited to Forms 10-K, Forms 10-Q,
Forms 8-K and proxy statements (collectively, the "Republic Reports").
Republic has previously furnished to the Xxxxxxx Companies and made available
to the Shareholders copies of all Republic Reports filed with the SEC since
January 1, 1995, and with respect to Republic Reports filed after the date of
this Agreement until the Effective Date, will promptly furnish to the Xxxxxxx
Companies and make available to the Shareholders, copies of each of the
Republic Reports filed with the SEC during such period. As of their respective
dates (but taking into account any amendments filed prior to the date of this
Agreement), the Republic Reports complied, or, with respect to Republic Reports
filed after the date of this Agreement, will comply, in all material respects
with all the rules and regulations promulgated by the SEC and did not contain,
or, with respect to Republic Reports filed after the date of this Agreement,
will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
2.9 ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as disclosed
in Republic Reports filed by Republic with the SEC prior to the date of this
Agreement, since December 31, 1994 to the date of this Agreement, there has not
been any change in the financial condition, results of operations or business
of Republic and the Republic Subsidiaries that either individually or in the
aggregate would have a Material Adverse Effect on the financial condition of
Republic.
2.10 ACCOUNTING AND TAX MATTERS. Neither Republic nor, to the
best of its knowledge, any of its affiliates, has taken or agreed to take any
action that would prevent Republic from accounting for the business
combinations to be effected by the Mergers as a "pooling of interests."
Republic warrants that it has no intention of disposing of any of the Xxxxxxx
Common Stock to be received by Republic in the Mergers. Republic agrees that
from and
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after the Effective Time, it will not take any action to cause the Merger to
lose its tax free status.
2.11 SURVIVAL. Each of the representations and warranties made
by Republic 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 the Shareholders, and upon expiration of such one
year period, such representations and warranties of Republic shall expire,
except that the representations and warranties of Republic contained in
Sections 2.1, 2.2, 2.3 and 2.4 shall not expire but shall continue
indefinitely.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE XXXXXXX COMPANIES
As a material inducement to each of the Republic Companies to enter
into this Agreement and to consummate the transactions contemplated hereby,
each of the Xxxxxxx Companies makes the following representations and
warranties to the Republic Companies:
3.1 CORPORATE STATUS. Each of the Xxxxxxx Companies is a
corporation duly organized, validly existing and in good standing under the
laws of the State of South Carolina and has the requisite power and authority
to own or lease its properties and to carry on its business as now being
conducted. Each of the Xxxxxxx Companies is legally qualified to transact
business as a foreign corporation in all jurisdictions where the nature of its
properties and the conduct of its business requires such qualification (all of
which jurisdictions are listed on Schedule 3.1) and is in good standing in each
of the jurisdictions in which it is so qualified. There is no pending or
threatened proceeding for the dissolution, liquidation, insolvency or
rehabilitation of the Xxxxxxx Companies.
3.2 POWER AND AUTHORITY. Each of the Xxxxxxx Companies has the
corporate power and authority to execute and deliver this Agreement, to perform
its obligations hereunder and to consummate the transactions contemplated
hereby. Each of the Xxxxxxx Companies has taken all action necessary to
authorize the execution
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and delivery of this Agreement, the performance of its obligations hereunder
and the consummation of the transactions contemplated hereby. Each of the
Shareholders is an individual residing in the State of South Carolina, and each
of the Shareholders has the requisite competence and authority to execute and
deliver this Agreement, to perform his or her respective obligations hereunder
and to consummate the transactions contemplated hereby.
3.3 ENFORCEABILITY. This Agreement has been duly executed and
delivered by each of the Xxxxxxx Companies and each of the Shareholders and
constitutes the legal, valid and binding obligation of each of the Xxxxxxx
Companies and each of the Shareholders, enforceable against each of the Xxxxxxx
Companies and each of the Shareholders 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 Xxxxxxx Companies, (a) the number of authorized shares of each
class of its capital stock, and (b) the number of issued and outstanding shares
of each class of its capital stock. All of the issued and outstanding shares
of capital stock of each of the Xxxxxxx Companies (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,
and no preemptive rights or rights of first refusal exist, and no such rights
arise by virtue of or in connection with the transactions contemplated hereby.
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 Xxxxxxx
Companies to issue or sell any shares of its respective capital stock (or
securities convertible into or exchangeable for shares of its respective
capital stock). There are no outstanding stock appreciation, phantom stock,
profit participation or other similar rights with respect to any of the Xxxxxxx
Companies. There are no proxies, voting rights or other agreements or
understandings with respect to the voting or transfer
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of the capital stock of any of the Xxxxxxx Companies. None of the Xxxxxxx
Companies is obligated to redeem or otherwise acquire any of its outstanding
shares of capital stock. With regard to the 1991 Stockholders Agreement for
Xxxxxxx Waste, the Shareholders, by their execution of this Agreement, hereby
terminate such Stockholders Agreement as of the Effective Date.
3.5 SHAREHOLDERS OF THE XXXXXXX COMPANIES. Schedule 3.5 sets
forth, with respect to each of the Xxxxxxx Companies, (a) the name, address and
social security 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 social
security 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). Each of the holders of shares of capital stock of the Xxxxxxx
Companies owns such shares free and clear of all Liens, restrictions and claims
of any kind, except as set forth on Schedule 3.5.
3.6 NO VIOLATION. Except as set forth on Schedule 3.6, the
execution and delivery of this Agreement by each of the Xxxxxxx Companies and
each of the Shareholders, the performance by each of the Xxxxxxx Companies and
each of the Shareholders of its respective obligations hereunder and the
consummation by each of the Xxxxxxx Companies and each of the Shareholders of
the transactions contemplated by this Agreement will not (i) contravene any
provision of the articles of incorporation or bylaws of any of the Xxxxxxx
Companies, (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 Xxxxxxx Companies or any of the
Shareholders except for such violations which, individually, or in the
aggregate, will not have a Material Adverse Effect on the Xxxxxxx Companies;
(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 Xxxxxxx Companies or any of the
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Shareholders except for such conflicts, breaches and defaults which,
individually or in the aggregate, will not have a Material Adverse Effect on
the Xxxxxxx Companies, (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 the
Xxxxxxx Companies, 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 Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended
("HSR") and any filings required to be made by the Republic Companies.
3.7 RECORDS OF THE XXXXXXX COMPANIES. The copies of the
articles of incorporation and bylaws of the Xxxxxxx Companies which were
provided to Republic are true, accurate and complete and reflect all amendments
made through the date of this Agreement. The minute books for the Xxxxxxx
Companies made available to Republic for review were correct and complete as of
the date of such review, no further entries have been made through the date of
this Agreement, such minute books contain the true signatures of the persons
purporting to have signed it, and such minute books contain a substantially
complete and accurate record of all corporate actions of the shareholders and
directors (and any committees thereof) of the Xxxxxxx Companies taken by
written consent or at a meeting since incorporation. All material corporate
actions taken by the Xxxxxxx Companies have been duly authorized or ratified.
All accounts, books, ledgers and official and other records of the Xxxxxxx
Companies have been fully, properly and accurately kept and completed in all
material respects, and there are no material inaccuracies or discrepancies of
any kind contained therein. The stock ledger of the Xxxxxxx Companies, as
previously made available to Republic, contains an accurate and complete record
of all issuances, transfers and cancellations of shares of the capital stock of
the Xxxxxxx Companies.
3.8 SUBSIDIARIES. Except as set forth on Schedule 3.8, the
Xxxxxxx Companies do not own, directly or indirectly, any outstanding voting
securities of or other interests in, or control, any corporation, partnership,
joint venture or other business entity.
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3.9 FINANCIAL STATEMENTS. The Xxxxxxx Companies have delivered to
Republic the financial statements of each of the Xxxxxxx Companies, including
the notes thereto, audited by Xxxxxx, Xxxxxx & Xxxxx, P.A. (other than Xxxxxxx
Waste, which has been duly compiled by Xxxxxx, Xxxxxx & Xxxxx, P.A. and
Pepperhill for which no financial statements exist) (the "Financial
Statements"), a copy of each of which is attached to Schedule 3.9 hereto. Each
balance sheet dated as of December 31, 1994 of each of the Xxxxxxx Companies is
referred to herein as the "Current Balance Sheet". The Financial Statements
fairly present the financial position of the Xxxxxxx Companies at the balance
sheet date 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 Xxxxxxx Companies fully and
fairly reflect all transactions, properties, assets and liabilities of the
Xxxxxxx Companies. There are no material special or non-recurring items of
income or expense during the periods covered by the Financial Statements and
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, since the date of the Current Balance Sheet, the
Xxxxxxx Companies have not (i) issued any capital stock or other securities;
(ii) made any distribution of or with respect to their capital stock or other
securities or purchased or redeemed any of their securities; (iii) paid any
bonus to or increased the rate of compensation of any of their officers or
salaried employees or amended any other terms of employment of such persons
except in the ordinary course of business consistent with past practice; (iv)
sold, leased or transferred any of their properties or assets other than in the
ordinary course of business consistent with past practice; (v) made or
obligated themselves to make capital expenditures out of the ordinary course of
business consistent with past practice; (vi) made any payment in respect of
their 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
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$25,000 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 $25,000 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 $25,000 in the aggregate; (xi) made or adopted any change in their
accounting practice or policies not consistent with GAAP; (xii) made any
adjustment to their books and records other than in respect of the conduct of
their 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; (xv) terminated, amended or
modified any agreement involving an amount in excess of $25,000; (xvi) imposed
any security interest or other Lien on any of their 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 Xxxxxxx Companies; or (xx) agreed
to do or authorized any of the foregoing.
3.11 LIABILITIES OF THE XXXXXXX COMPANIES. Except as set forth
on Schedule 3.11, the Xxxxxxx Companies do not have any material liabilities or
obligations, whether accrued, absolute, contingent or otherwise, except (a) to
the extent reflected or taken into account in each Current 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 each 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
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aggregate, and (e) liabilities incurred in the ordinary course of business
prior to the date of each Current Balance Sheet which, in accordance with GAAP
consistently applied, were not recorded thereon. The aggregate amount of
indebtedness for borrowed money, including principal and accrued but unpaid
interest, and including the net present value of remaining payments on
capitalized equipment leases, of the Xxxxxxx Companies, will not exceed
$9,500,000, and their combined net worth will be no less than $6,900,000, as of
the Effective Time.
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 Xxxxxxx Companies,
threatened, anticipated or contemplated against, by or affecting the Xxxxxxx
Companies, or any of their properties or assets, or the Shareholders, which
could have a Material Adverse Effect on any of the Xxxxxxx Companies, or which
question the validity or enforceability of this Agreement or the transactions
contemplated hereby, and, to the knowledge of the Xxxxxxx Companies, 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
any of the Xxxxxxx Companies is or was a party which have not been complied
with in full or which continue to impose any material obligations on any of the
Xxxxxxx Companies.
3.13 ENVIRONMENTAL MATTERS. To the knowledge of the Xxxxxxx
Companies, and except as set forth on Schedule 3.13:
(a) Except for violations or liabilities which would not
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect on the Xxxxxxx Companies (i) the Xxxxxxx Companies are and have
at all times been in substantial compliance with all material Environmental,
Health and Safety Laws (as defined herein) governing their businesses,
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
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described herein); and (ii) the Xxxxxxx Companies have not been notified in
writing by any Governmental Authority that it is or may be liable for any
penalties, fines or forfeitures for failure to comply with any Environmental,
Health and Safety Laws; and (iii) the Xxxxxxx Companies are in substantial
compliance with all notice, record keeping and reporting requirements of all
Environmental, Health and Safety Laws, and has complied substantially with all
informational requests or demands made of it in writing by any Governmental
Authority under the Environmental, Health and Safety Laws.
(b) The Xxxxxxx Companies have obtained, or caused to be
obtained, and are in substantial compliance with, all material licenses,
certificates, permits, approvals and registrations (collectively "Licenses")
required by the Environmental, Health and Safety Laws applicable to its
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, Hazardous Substances and other Waste
generation, transportation, transfer, storage, treatment or disposal Licenses,
and the Xxxxxxx Companies are in substantial compliance with all the terms,
conditions and requirements of such Licenses, and copies of such Licenses have
been provided to Republic. There are no material administrative or judicial
investigations, notices, claims or other proceedings pending or threatened in
writing by any Governmental Authority or third parties against the Xxxxxxx
Companies, their businesses, operations, properties, or assets, which question
the validity or entitlement of the Xxxxxxx Companies to any License required by
the Environmental, Health and Safety Laws for the ownership of each of the
properties and assets of the Xxxxxxx Companies and the operation of its
business or wherein an unfavorable decision, ruling or finding could have a
Material Adverse Effect on the Xxxxxxx Companies.
(c) The Xxxxxxx Companies have not received any written
notice of any non-compliance order, Potentially Responsible Party letter,
notice of violation, claim, suit, action, judgment, or administrative or
judicial proceeding pending against or involving the Xxxxxxx Companies, their
business, operations, properties, or assets, issued by any Governmental
Authority or third party with respect to any Environmental, Health and Safety
Laws in connection
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with the ownership by the Xxxxxxx Companies of its properties or assets or the
operation of its business, which if has not been resolved to the satisfaction
of the issuing Governmental Authority or third party could reasonably be
expected to have a Material Adverse Effect on the Xxxxxxx Companies.
(d) The Xxxxxxx Companies are in substantial compliance
with, and are not in breach of or default under any applicable writ, order,
judgment, injunction, governmental decree issued to the Xxxxxxx Companies
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.
(e) Except for violations or liabilities which would not
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect on the Xxxxxxx Companies:
(1) (i) the Xxxxxxx Companies have 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 allowed
to receive such Hazardous Substances or other waste for such purposes;
and (ii) the Xxxxxxx Companies have 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 them, except as allowed 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
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17
remediation under any Environmental, Health and Safety Laws or which
are regulated, listed or controlled by, under or pursuant to any
Environmental Health and Safety Laws, including, without limitation,
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, including without
limitation, and by way of example, the South Carolina Solid Waste
Policy and Management Act of 1991 (Section 44-96-10 et. seq.) as
amended, the South Carolina Hazardous Waste Management Act (Section
44-56-10 et. seq.) as amended, and the Code of Laws of South Carolina,
Chapter 61, Department of Health and Environmental Control, or
regulations implementing such statutes, laws, ordinances, codes,
rules, regulations, orders, rulings, or decrees, or which has been
determined or interpreted 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 have the same meaning, and be
defined the same as, the term "Solid Waste" is defined in RCRA.
(2) The Xxxxxxx Companies have not caused, or
allowed to be caused 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
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the Leased Premises that would reasonably be expected to have a
Material Adverse Effect on the Xxxxxxx Companies. 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 that would reasonably be expected to have a Material
Adverse Effect on the Xxxxxxx Companies. For purposes of this
Section, the terms "Release" and "Discharge" shall have the meanings
given them in the Environmental, Health and Safety Laws.
(3) Other than is stated in Schedule 3.13, the
Xxxxxxx Companies have 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 Xxxxxxx Companies that they has
proposed or are proposing to place on the National Priorities List or
its state equivalent. The Xxxxxxx Companies have not received written
notice, and the Xxxxxxx Companies have no knowledge of any facts which
could give rise to any notice, that the Xxxxxxx Companies are 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 Xxxxxxx
Companies have not submitted nor were required to submit any notice
pursuant to Section 103(c) of CERCLA with respect to the Leased
Premises or the Owned Properties. Other than is stated in Schedule
3.13, the Xxxxxxx Companies have not received any written 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 Xxxxxxx Companies have transported, transferred or
disposed of other Wastes. The Xxxxxxx Companies have not been
required to and has not undertaken any response or remedial actions or
clean-up
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actions of any kind at the written request of any Governmental
Authorities or at the request of any other third party.
(f) Other than is stated in Schedule 3.13, the Xxxxxxx
Companies do not use, nor have they 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.
(g) Schedule 3.13 identifies (i) all environmental
audits, assessments or occupational health studies undertaken by the Xxxxxxx
Companies or their agents or, to the knowledge of the Xxxxxxx Companies,
undertaken by any Governmental Authority, or any third party, concerning the
Xxxxxxx Companies or any of the Leased Premises or the Owned Properties within
the last three years; (ii) the results of any ground, water, soil, air or
asbestos monitoring undertaken by the Xxxxxxx Companies or their agents or, to
the knowledge of the Xxxxxxx Companies, undertaken by any Governmental
Authority or any third party, concerning the Xxxxxxx Companies or any of the
Leased Premises or the Owned Properties within the last three (3) years; (iii)
all written communications between the Xxxxxxx Companies and any Governmental
Authority within the last three (3) years arising under or related to
Environmental, Health and Safety Laws; and (iv) all citations issued under
OSHA, or similar state or local statutes, laws, ordinances, codes, rules,
regulations, orders, rulings, or decrees, concerning either of the Xxxxxxx
Companies or any of the Leased Premises or the Owned Properties.
(h) Schedule 3.13 contains a list of the assets of the
Xxxxxxx Companies which contain "asbestos" or "asbestos-containing material"
(as such terms are identified under the Environmental, Health and Safety Laws).
Schedule 3.13 also identifies all documents or actions taken by the Xxxxxxx
Companies, directly or indirectly, or by any of their agents, employees,
representatives or contractors with respect to asbestos or asbestos-containing
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materials, including but not limited to all methods and manner of abatement,
removal, containment, encapsulation, repair, maintenance, renovation,
demolition, salvage, installation, storage, transportation, disposal,
monitoring, spill/emergency clean-up, protective health and safety measures and
training of personnel (whether employees or independent contractors or
otherwise). Except as set forth in Schedule 3.13, the Xxxxxxx Companies have
operated and continues to operate in substantial compliance with all
Environmental, Health & Safety Laws governing the handling, use and exposure to
and disposal of asbestos or asbestos-containing materials. Except as set forth
in Schedule 3.13, there are no claims, actions, suits, governmental
investigations or proceedings before any Governmental Authority or third party
pending, or threatened against or directly affecting the Xxxxxxx Companies, or
any of their assets or operations relating to the use, handling or exposure to
and disposal of asbestos or asbestos-containing materials in connection with
their assets and operations.
(i) As used in this Agreement, "Environmental, Health
and Safety Laws" means all federal, state, regional or local statutes, laws,
rules, regulations, codes, orders, injunctions, decrees, rulings, and
ordinances or judicial or administrative interpretations thereof, and that
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, OSHA and including without limitation, and by
way of example, the South Carolina Solid Waste Policy and Management Act of
1991 (Section 44-96-10 et. seq.) as amended, the South Carolina Hazardous Waste
Management Act (Section 44-56-10 et. seq.) as amended, and the Code of Laws of
South Carolina, Chapter 61, Department of Health and Environmental Control.
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(j) Schedule 3.13 identifies the operations and
activities, and locations thereof, which have been conducted and are being
conducted by the Xxxxxxx Companies on any of the Owned Properties or the Leased
Premises which have materially involved the generation, accumulation, storage,
treatment, transportation, labelling, handling, manufacturing, use, spilling,
leaking, dumping, discharging, release or disposal of Hazardous Substances.
(k) Schedule 3.13 identifies the respective locations to
which the Xxxxxxx Companies have transferred, transported, hauled, moved, or
disposed of Hazardous Substances and Waste over the past five (5) years and the
respective types and volumes of Hazardous Substances and Waste transferred,
transported, hauled, moved, or disposed of to each such location.
(l) As used in this Section 3.13, the term "the Xxxxxxx
Companies" is deemed to refer to the Xxxxxxx Companies or any of their
Affiliates.
3.14 REAL ESTATE
(a) The Xxxxxxx Companies do not 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 and size of, and principal
improvements and buildings on, the Owned Properties. Except as set forth on
Schedule 3.14(a), with respect to each such parcel of Owned Property:
(i) The Xxxxxxx Companies have good and marketable
title to the parcel of Owned Property, free and clear of any Lien
other than (x) liens for real estate taxes currently due and payable
but not yet delinquent; (y) recorded easements, covenants, and other
restrictions which do not materially impair the current use 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 previously delivered or made available
to Republic by the Xxxxxxx Companies;
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(ii) there are no pending or, to the knowledge of the
Xxxxxxx Companies, threatened condemnation proceedings, suits or
administrative actions relating to the Owned Properties affecting
adversely and materially the current use 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 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
(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) to the knowledge of the Xxxxxxx Companies, 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
substantially in accordance with applicable laws, ordinances, rules
and regulations in all material respects;
(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);
(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;
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(vii) there are no parties (other than the Xxxxxxx
Companies) 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) to the knowledge of the Xxxxxxx Companies, all
facilities located on the parcels of Owned Property are supplied with
utilities and other services necessary for the operation of such
facilities, including gas, electricity, water, telephone, sanitary
sewer and storm sewer, all of which services are adequate in
accordance with all applicable laws, ordinances, rules and
regulations, and are provided via public roads or via permanent,
irrevocable, appurtenant easements benefitting the parcels of Owned
Property;
(ix) each parcel of Owned Property abuts on and has
direct vehicular access to a public road, or has access to a public
road via a permanent, irrevocable, appurtenant easement benefitting
the parcel of Owned Property; access to the property is provided by
paved public right-of-way with adequate curb cuts available; and
there is no pending or threatened termination of the foregoing access
rights;
(x) except for matters or conditions which would not
reasonably, individually or in the aggregate, have a Material Adverse
Effect on the Xxxxxxx Companies, all improvements and buildings on the
Owned Property are in good repair (reasonable wear and tear excepted)
and are safe for occupancy and use, free from termites or other
wood-destroying organisms; the roofs thereof are watertight; and the
structural components and systems (including plumbing, electrical, air
conditioning/heating, and sprinklers) are in good working order and
adequate for the use of such Owned Property in the manner in which
presently used; and
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(xi) there are no service contracts, management
agreements or similar agreements which affect the parcels of Owned
Property, except as set forth on Schedule 3.14(a).
(b) Schedule 3.14(b) sets forth a list of all leases,
licenses or similar agreements ("Leases") to which any of the Xxxxxxx Companies
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"), to the knowledge of the Xxxxxxx Companies, all
of which are within the property set-back and building lines of the respective
property. The Leases are in full force and effect and have not been amended
except as set forth on Schedule 3.14(b), and to the knowledge of the Xxxxxxx
Companies, no party thereto is in default or breach under any such Lease. To
the knowledge of the Xxxxxxx Companies, 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. To the knowledge of the Xxxxxxx
Companies, there is no breach or anticipated breach by any other party to such
Leases. Except as set forth on Schedule 3.14(b), with respect to each such
Leased Premises:
(i) The Xxxxxxx Companies have valid leasehold
interests in the Leased Premises, free and clear of any Liens,
covenants and easements or title defects of any nature whatsoever;
(ii) Except for matters or conditions which would not
reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect on the Xxxxxxx Companies, the portions of the
buildings located on the Leased Premises that are used in each of the
Xxxxxxx Companies' businesses are each in good repair and condition,
normal wear and tear excepted, and are in the aggregate sufficient to
satisfy each of the Xxxxxxx Companies' current and reasonably
anticipated normal business activities as conducted thereat;
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(iii) Each of the Leased Premises (a) has direct
access to public roads or access to public roads by means of a
perpetual access easement; and (b) is served by all utilities in such
quantity and quality as are sufficient to satisfy the current normal
business activities as conducted at such parcel; and
(iv) None of the Xxxxxxx Companies has received notice of
(a) any condemnation proceeding with respect to any portion of the
Leased Premises or any access thereto; or (b) any special assessment
which may affect any of the Leased Premises.
3.15 GOOD TITLE TO AND CONDITION OF ASSETS
(a) Except as set forth in Schedule 3.15, the Xxxxxxx
Companies have good and marketable title to all of their 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
Xxxxxxx Companies, other than the Owned Properties and the Leased Premises,
whether personal or mixed, tangible or intangible, wherever located.
(b) Except for matters or conditions which would not
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect on the Xxxxxxx Companies, the Fixed Assets (as hereinafter
defined) currently in use or necessary for the business and operations of the
Xxxxxxx Companies are in good operating condition, normal wear and tear
excepted. 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 the Xxxxxxx
Companies or set forth on the Current Balance Sheet or acquired by the Xxxxxxx
Companies since the date of each Current Balance Sheet. Schedule 3.15 lists
the vehicles owned, leased or used by the Xxxxxxx Companies, setting forth the
make, model, description of body and chassis, vehicle identification number,
and year of manufacture, and for each vehicle, whether it is owned or leased,
and if owned, the name of any lienholder and the amount of
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the lien, and if leased, the name of the lessor and the general terms of the
lease.
3.16 COMPLIANCE WITH LAWS.
(a) The Xxxxxxx Companies are and have been in material
compliance with all laws, regulations and orders applicable to them, their
businesses and operations (as conducted by them 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) the
noncompliance of with which could have a Material Adverse Effect on the Xxxxxxx
Companies. Except as set forth on Schedule 3.16 or other Schedules to this
Agreement, none of the Xxxxxxx Companies 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, to the knowledge of the Xxxxxxx Companies, threatened.
(b) None of the Xxxxxxx Companies nor any of the Control
Shareholders, has made any payment of funds in connection with the business of
the Xxxxxxx Companies which is prohibited by law, and no funds have been set
aside to be used in connection with the business of the Xxxxxxx Companies for
any payment prohibited by law.
(c) The Xxxxxxx Companies are and at all times have been
in substantial compliance with the terms and provisions of the Immigration
Reform and Control Act of 1986, as amended (the "Immigration Act"). With
respect to each Employee (as defined in 8 C.F.R. 274a.1(f)) of the Xxxxxxx
Companies for whom compliance with the Immigration Act by each of the Xxxxxxx
Companies as employer is required, the Xxxxxxx Companies have made available to
Republic a true, accurate and complete copy of (i) each Employee's Form I-9
(Employment Eligibility Verification Form) and (ii) all other records,
documents or other papers prepared, procured and/or retained by the Xxxxxxx
Companies pursuant to the Immigration Act. None of the Xxxxxxx Companies has
been cited, fined, served with a Notice of Intent to Fine or with a Cease and
Desist Order, nor has any action or administrative proceeding been initiated
or, to any of the Xxxxxxx Companies' knowledge, threatened against the Xxxxxxx
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Companies by reason of any actual or alleged failure to comply with the
Immigration Act.
(d) Except as set forth in Schedule 3.16, none of the
Xxxxxxx Companies is subject to any Contract, decree or injunction in which any
of the Xxxxxxx Companies 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, address, social security number and current rate of compensation of each
of the employees of each of the Xxxxxxx Companies. To protect the privacy of
the Xxxxxxx Companies' employees, this information shall be provided to only
those with a legitimate business need to know the information. None of the
Xxxxxxx Companies is a party to or bound by any 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 any of the Xxxxxxx Companies into one or more collective
bargaining units. There is no pending or, to the knowledge of the Xxxxxxx
Companies, threatened labor dispute, strike or work stoppage which affects or
which may affect the businesses of the Xxxxxxx Companies or which may interfere
with their continued operation. None of the Xxxxxxx Companies nor any agent,
representative or employee of the Xxxxxxx Companies have 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, to the knowledge of the
Xxxxxxx Companies, threatened charge or complaint against any of the Xxxxxxx
Companies 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 Xxxxxxx Companies during the 24 months prior to the date
hereof. None of the Xxxxxxx Companies has received notice that any executive
or key employee or group of employees has any plans to terminate his, her or
their employment with any of the Xxxxxxx Companies as a result of the Mergers
or otherwise. Schedule 3.17 contains detailed 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 Xxxxxxx Companies is a party or
under which any of the Xxxxxxx Companies has an obligation: (i) employment
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agreements, (ii) employee handbooks, policy statements and similar plans, (iii)
noncompetition agreements and (iv) consulting agreements. Except as provided
in Schedule 3.17, the Xxxxxxx Companies have 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
list setting forth each employee benefit plan or arrangement of each of the
Xxxxxxx Companies, including but not limited to employee profit sharing 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 the Xxxxxxx
Companies 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. Except as set forth in
Schedule 3.18, 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) to the knowledge of the Xxxxxxx Companies, there are no facts
which could give rise to any material liability in the 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
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filed or distributed; and (vi) no "prohibited transaction" 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; (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; (iii) no such plan has been amended in a manner that would
require security to be provided in accordance with Section 401(a)(29) of the
Code; (v) no reportable event (within the meaning of Section 4043 of ERISA) has
occurred, other than one for which the 30-day notice requirement has been
waived; and (v) as of the Effective Date, the present value of all liabilities
that would be "benefit liabilities" under Section 4001(a)(16) of ERISA if
benefits described in Code Section 411(d)(6)(B) were included will not exceed
the then current fair market value of the assets of such plan (determined using
the actuarial assumptions used for the most recent actuarial valuation for such
plan); (vi) except as disclosed on Schedule 3.18, all contributions to, and
payments from and with respect to such plans, which may have been required to
be made in accordance with such plans and, when applicable, Section 302 of
ERISA or Section 412 of the Code, have been timely made; (vii) all such
contributions to the plans, and all payments under the plans (except those to
be made from a trust qualified under Section 401(a) of the Code) and all
payments with respect to the plans (including, without limitation, PBGC and
insurance premiums) for any period ending before the Closing Date that are not
yet, but will be, required to be made are properly accrued and reflected on the
Current Balance Sheet or are disclosed on Schedule 3.18.
(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 each of
the Xxxxxxx Companies have been
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timely paid; (ii) the Xxxxxxx Companies have not incurred and are not 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); (iii) Schedule 3.18 sets forth (A) the withdrawal
liability under ERISA to each MPPA Plan, (B) the date as of which such amount
was calculated, and (C) the method for determining the withdrawal liability;
and (iv) 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) the Xxxxxxx Companies are not 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 Xxxxxxx Companies or
their predecessors after termination of employment; (ii) the Xxxxxxx Companies
have complied in all material respects 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 of any of the Xxxxxxx Companies 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, and
(iii) there are no reserves, assets, surplus or prepaid premiums under any
Welfare Plan which is an Employee Benefit Plan. 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.
(f) Controlled Group Liability. The Xxxxxxx Companies,
or any entity that would be aggregated with the Xxxxxxx Companies under Code
Section 414(b), (c), (m) or (o): (i) have never terminated or withdrawn from
an employee benefit plan under circumstances resulting (or expected to result)
in liability to the Pension Benefit Guaranty Corporation ("PBGC"), the fund by
which the employee benefit plan is funded, or any employee or beneficiary for
whose benefit the plan is or was maintained (other than routine
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claims for benefits); (ii) have no assets subject to (or expected to be subject
to) a lien for unpaid contributions to any employee benefit plan; (iii) have
not failed to pay premiums to the PBGC when due; (iv) are not subject to (or
expected to be subject to) an excise tax under Code Section 4971; (v) have not
engaged in any transaction which would give rise to liability under Section
4069 or Section 4212(c) of ERISA; or (vi) have not violated Code Section 4980B
or Section 601 through 608 of ERISA.
(g) Other Liabilities. Except as set forth on Schedule
3.18, (i) none of the Employee Benefit Plans obligates any of the Xxxxxxx
Companies to pay separation, severance, termination or similar benefits solely
as a result of any transaction contemplated by this Agreement or solely as a
result of a "change of control" (as such term is defined in Section 280G of the
Code), (ii) all required or discretionary (in accordance with historical
practices) payments, premiums, contributions, reimbursements, or accruals for
all periods ending prior to or as of the Effective Date shall have been made or
properly accrued on each Current Balance Sheet or will be properly accrued on
the books and records of each of the Xxxxxxx Companies as of the Effective
Date, and (iii) none of the Employee Benefit Plans has any unfunded liabilities
which are not reflected on each Current Balance Sheet or the books and records
of each of the Xxxxxxx Companies.
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
the Xxxxxxx Companies or any of their income, properties, franchises or
operations have been filed, each such Tax Return has been prepared in
substantial compliance with all applicable laws and regulations, and all such
Tax Returns are true and accurate in all material respects. All Taxes due and
payable by or with respect to each of the Xxxxxxx Companies shown on the Tax
Returns have been paid or are accrued on each Current Balance Sheet or will be
accrued on the books and records of each of the Xxxxxxx Companies as of the
Closing. Each of the Xxxxxxx Companies has duly and validly filed elections
for "S" corporation status under the Code, and none of such "S" elections have
been revoked or terminated and none of the Xxxxxxx Companies or the
Shareholders have taken any action which would cause a termination of such "S"
elections. Except as set forth in Schedule 3.19 hereto: (i) no deficiency or
proposed adjustment which has not been
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settled or otherwise resolved for any amount of Taxes has been asserted or
assessed by any taxing authority against the Xxxxxxx Companies; (ii) the
Xxxxxxx Companies have not consented to extend the time in which any Taxes may
be assessed or collected by any taxing authority; (iii) none of the Xxxxxxx
Companies has requested or been granted an extension of the time for filing any
Tax Return to a date later than the Effective Time; (iv) there is no action,
suit, taxing authority proceeding, or audit or claim for refund now in
progress, pending or, to the knowledge of the Xxxxxxx Companies and the Control
Shareholders, threatened against or with respect to the Xxxxxxx Companies
regarding Taxes; (v) none of the Xxxxxxx Companies 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;
(vi) there are no Liens for Taxes (other than for current Taxes not yet due and
payable) upon the assets of any of the Xxxxxxx Companies; (vii) the Xxxxxxx
Companies will not be required (A) as a result of a change in method of
accounting for a taxable period ending on or prior to the Effective Date, to
include any adjustment under Section 481(c) of the Code (or any corresponding
provision of state, local or foreign law) in taxable income for any taxable
period (or portion thereof) beginning after the Effective Time or (B) as a
result of any "closing agreement," as described in Section 7121 of the Code (or
any corresponding provision of state, local or foreign law), to include any
item of income or exclude any item of deduction from any taxable period (or
portion thereof) beginning after the Effective Time; (viii) none of the Xxxxxxx
Companies has been a member of an affiliated group (as defined in Section 1504
of the Code) or filed or been included in a combined, consolidated or unitary
income Tax Return; (ix) none of the Xxxxxxx Companies is a party to or bound by
any tax allocation or tax sharing agreement or has any current or potential
contractual obligation to indemnify any other Person with respect to Taxes; (x)
none of the Xxxxxxx Companies has been a United States real property holding
corporation within the meaning of Section 897(c)(2) of the Code (or any
corresponding provision of state, local or foreign law) during the applicable
period specified in Section 897(c)(1)(a)(ii) of the Code (or any corresponding
provision of state, local or foreign law); (xi) no claim has ever been asserted
against any of the Xxxxxxx Companies in writing by a taxing authority in a
jurisdiction where the Xxxxxxx Companies do not file Tax Returns that any of
the Xxxxxxx Companies are or may be subject to Taxes
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assessed by such jurisdiction; (xii) none of the Xxxxxxx Companies has a
permanent establishment in any foreign country, as defined in the relevant tax
treaty between the United States of America and such foreign country; (xiii)
true, correct and complete copies of all income and sales Tax Returns filed by
or with respect to the Xxxxxxx Companies for the past three years have been
furnished or made available to Republic; and (xiv) none of the Xxxxxxx
Companies will be subject to any Taxes for the period ending at the Effective
Time for any period for which a Tax Return has not been filed imposed pursuant
to Section 1374 or Section 1375 of the Code (or any corresponding provision of
state, local or foreign law).
3.20 INSURANCE. Except as set forth in Schedule 3.20, the
Xxxxxxx Companies are covered by valid, outstanding and enforceable policies of
insurance issued to it or them by reputable insurers covering their 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. The Xxxxxxx Companies have complied with the provisions of
such Insurance Policies in all material respects. Schedule 3.20 contains (i) a
complete and correct list of all Insurance Policies and all amendments and
riders thereto (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 $10,000 that relates to loss or damage to the
properties, assets or businesses of the Xxxxxxx Companies. To the knowledge of
the Xxxxxxx Companies, the Xxxxxxx Companies have not failed to give, in a
timely manner, any notice required under any of the Insurance Policies to
preserve their rights thereunder.
3.21 RECEIVABLES. Except as set forth in Schedule 3.21:(i) 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 Xxxxxxx Companies; and (ii) all of the Receivables are good and
collectible receivables, without setoff or counterclaims, subject to the
allowance for doubtful
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accounts, if any, set forth on each Current Balance Sheet as reasonably
adjusted since the date of each 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 Xxxxxxx Companies, 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. The Xxxxxxx Companies possess all
licenses and required governmental or official approvals, permits or
authorizations (collectively, the "Permits") for their businesses and
operations, including with respect to the operation of each of the Owned
Properties and Leased Premises except where the failure to obtain any such
Permits would not have a Material Adverse Effect on any of the Xxxxxxx
Companies. To the knowledge of the Xxxxxxx Companies, all such Permits are
valid and in full force and effect, the Xxxxxxx Companies are in compliance
with their requirements in all material respects, and no proceeding is pending
or, to the knowledge of the Xxxxxxx Companies, threatened to revoke or amend
any of them. None of such Permits is or will be materially impaired or
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 businesses of the Xxxxxxx Companies in the
manner in which and to the extent to which such business is currently being
conducted. No current supplier to the Xxxxxxx Companies of items essential to
the conduct of their businesses has, to the knowledge of the Xxxxxxx Companies,
threatened to terminate its business relationship with any of the Xxxxxxx
Companies for any reason. Except as set forth on Schedule 3.23, to the
knowledge of the Xxxxxxx Companies, the Xxxxxxx Companies have no direct or
indirect interest in any customer, supplier or competitor of the Xxxxxxx
Companies, nor in any person from whom or to whom the Xxxxxxx Companies leases
real or personal property. Except as set forth on Schedule 3.23, to the
knowledge of the Xxxxxxx Companies, no officer, director or shareholder of the
Xxxxxxx Companies, nor any person related by blood or marriage to any such
person, nor any entity in which any such person owns
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any beneficial interest, is a party to any Contract or transaction with any of
the Xxxxxxx Companies or has any interest in any property used by the Xxxxxxx
Companies.
3.24 INTELLECTUAL PROPERTY. To the knowledge of the Xxxxxxx
Companies, the Xxxxxxx Companies have 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 their
businesses (the "Intellectual Property"). To the knowledge of the Xxxxxxx
Companies, the conduct of the Xxxxxxx Companies' businesses as presently
conducted and the unrestricted conduct and the unrestricted use and
exploitation of the Intellectual Property do 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, to the
knowledge of the Xxxxxxx Companies, 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 list of each Contract
to which the Xxxxxxx Companies are parties or by which the Xxxxxxx Companies or
their properties and assets are bound and which are material to the business,
assets or properties of the Xxxxxxx Companies (the "Designated Contracts"),
true and correct copies of which have been made available to Republic. The
copy of each Designated Contract supplied by the Xxxxxxx Companies 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 Xxxxxxx Companies 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
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notice or the passage of time, or both, would constitute, a material default by
any of the Xxxxxxx Companies under any Designated Contract, and no such event
has occurred which constitutes or would, to the knowledge of the Xxxxxxx
Companies, constitute a material default by any other party. None of the
Xxxxxxx Companies is subject to any liability or payment resulting from
renegotiation of amounts paid to them under any Designated Contract. As used
in this Section, Designated Contracts, subject to the materiality standard set
forth in the first sentence of this Section 3.25, 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 the Xxxxxxx Companies 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 Xxxxxxx Companies
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
Twenty- Five Thousand Dollars ($25,000.00); (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
between the Xxxxxxx Companies and any employee, officer or director of the
Xxxxxxx Companies; (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 the Xxxxxxx Companies; and
(h) other material Contracts or understandings, irrespective of subject matter
and whether or not in writing, not entered into in the ordinary course of
business by the Xxxxxxx Companies 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 all material existing
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municipal, county or city or other large customers (collectively, the "Material
Customers") of the Xxxxxxx Companies who have entered into valid and
enforceable long-term (i.e., more than one year) waste collection and disposal,
recycling or other franchises or agreements with the Xxxxxxx Companies. True,
correct and complete copies of such franchises and agreements and any
ordinances relating thereto have been furnished by the Xxxxxxx Companies to
Republic. Other than the Material Customers listed on Schedule 3.26, no
customer of the Xxxxxxx Companies as of the date of this Agreement accounts for
more than 1% of the Xxxxxxx Companies' consolidated annual revenue. Schedule
3.26 sets forth each Material Customer's name, address, account number, term of
franchise or agreement, billing cycle, type of service and rates charged.
3.27 INVESTMENT INTENT; ACCREDITED INVESTOR STATUS; SECURITIES
DOCUMENTS. Each of the Shareholders is acquiring the Republic Shares hereunder
for his 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.
Fennellis an "accredited investor" within the meaning of Regulation D
promulgated under the Securities Act, and each of the Shareholders 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.
3.28 BUSINESS LOCATIONS. As of the date hereof, the Xxxxxxx
Companies have no office or place of business other than as identified on
Schedules 3.14(a) and 3.14(b) and each of the Xxxxxxx Companies' principal
place of business and chief executive office (as such terms are used in
subsection 9-401 of the Uniform Commercial Code as enacted in the State of
South Carolina 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 Xxxxxxx Companies are located as
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of the date hereof are fully identified on Schedules 3.14(a) and 3.14(b).
3.29 NAMES; PRIOR ACQUISITIONS. All names under which each of
the Xxxxxxx Companies do business as of the date hereof are specified on
Schedule 3.29. Except as set forth on Schedule 3.30, none of the Xxxxxxx
Companies 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.
3.30 NO COMMISSIONS. None of the Xxxxxxx Companies nor any
Shareholder 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 MERGERS
4.1 CONDUCT OF BUSINESS BY THE XXXXXXX COMPANIES PENDING THE
MERGERS. Except as set forth on Schedule 4.1, the Xxxxxxx Companies covenant
and agree that, between the date of this Agreement and the Effective Time, the
businesses of the Xxxxxxx Companies shall be conducted only in, and the Xxxxxxx
Companies shall not take any action except in, the ordinary course of business,
consistent with past practice. The Xxxxxxx Companies shall use their
reasonable best efforts, subject to the covenants of this Article IV, to
preserve intact their 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 Xxxxxxx Companies 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:
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(a) amend or otherwise change its articles of
incorporation or bylaws or equivalent organizational documents;
(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;
(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, except that dividends may be
paid equal to the estimated tax that the Shareholders will have to pay
on the taxable income of the Xxxxxxx Companies for the current year;
(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
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loans or advances other than in the ordinary course of business, 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 other than in the ordinary course
of business consistent with past practice, 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 under 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) 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;
(i) materially increase or decrease prices charged to
its customers, except for previously announced price changes, or take
any other action
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which might reasonably result in any material increase in the 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 materially untrue or
incorrect except in the ordinary course of business.
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 reasonably necessary or appropriate to effectuate, carry out
and comply with all of the terms of this Agreement and the transactions
contemplated hereby.
5.2 COVENANTS OF THE XXXXXXX COMPANIES. The Shareholders shall
cause the Xxxxxxx Companies to comply with all of the covenants of the Xxxxxxx
Companies 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 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
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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 the Xxxxxxx Companies 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 Republic Companies and the Xxxxxxx Companies also
agree to use all reasonable 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. The fees and expenses incurred in responding
to any injunction brought by a governmental authority under the HSR Act shall
be paid by Republic.
5.5 ACCESS TO INFORMATION. From the date hereof to the
Effective Time, each of the Xxxxxxx Companies 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. Republic agrees to keep all
such information disclosed pursuant to this Section 5.5 confidential.
5.6 NOTIFICATION OF CERTAIN MATTERS. The Xxxxxxx Companies
shall give prompt notice to Republic of the occurrence or non-occurrence of any
event of which any of the Xxxxxxx Companies becomes aware or has knowledge
which would likely cause any representation or warranty contained herein to be
materially untrue or inaccurate, or any covenant, condition, or agreement
contained herein not to be complied with or satisfied in all material respects.
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5.7 TAX TREATMENT. Republic, the Xxxxxxx Companies and the
Shareholders will use their respective best efforts to cause the Mergers to
qualify as a reorganization 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 a securities exchange (in which case
Republic will consult with the other parties prior to making such disclosure).
5.9 NO OTHER DISCUSSIONS. From the date hereof until the
Effective Time or the earlier termination of this Agreement, the Xxxxxxx
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 the Xxxxxxx Companies
(whether by merger, 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 Xxxxxxx Companies 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 ENVIRONMENTAL ASSESSMENT. Republic, at its sole expense,
shall be entitled to have conducted prior to Closing an
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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 each of the
Xxxxxxx Companies. The Xxxxxxx Companies 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 results of the Environmental Assessment are not
satisfactory to Republic in its sole discretion, then Republic may elect not to
close. Republic shall provide promptly the Xxxxxxx Companies and the
Shareholders with copies of the Environmental Assessment. The contents of the
Environmental Assessment and all related documents or findings shall
automatically become part of the Xxxxxxx Companies' and the Control
Shareholders' exception list to Section 3.13. If the Environmental Assessment
identifies environmental contamination which requires remediation or further
evaluation under the Environmental, Health, and Safety Laws, then Republic may
elect to not 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 Xxxxxxx Companiesunder this
Agreement.
5.11 TRADING IN REPUBLIC COMMON STOCK. Except as otherwise
expressly consented to by Republic, from the date of this Agreement until the
Effective Time or the earlier termination of this Agreement, neither the
Xxxxxxx Companies nor 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.
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
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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 Xxxxxxx Companies
contained in this Agreement shall be true and correct in all material respects
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 Xxxxxxx Companies and the
Shareholders shall have performed and complied in all material respects 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 Xxxxxxx Companies shall
have delivered to the Republic Companies a certificate, dated as of the
Effective Time, duly signed (in the case of each of the Xxxxxxx 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 in all material respects.
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 of the Xxxxxxx Companies, (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 the Xxxxxxx
Companies, and (iii) none of the properties and assets of the Xxxxxxx Companies
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 Change on the Xxxxxxx Companies, 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 Xxxxxxx
Companies.
6.3 CORPORATE CERTIFICATE. The Xxxxxxx Companies and the
Control Shareholders shall have delivered to the Republic Companies (i) copies
of the articles of incorporation and bylaws of the Xxxxxxx Companies as in
effect immediately prior to the Effective Time, (ii) copies of resolutions
adopted by the Board of Directors
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and shareholders of each of the Xxxxxxx Companies authorizing the transactions
contemplated by this Agreement, and (iii) a certificate of existenceof each of
the Xxxxxxx Companies issued by the Secretary of State of the State of South
Carolina and each other state in which each of the Xxxxxxx Companies is
qualified to do business as of a date not more than ten days prior to the
Effective Time, certified in each case as of the Effective Time by the
Secretary of each of the Xxxxxxx Companies 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 each of the
Xxxxxxx Companies, in form and substance acceptable to the Republic Companies,
to the effect that:
(i) Each of the Xxxxxxx Companies is a
corporation duly organized and existing and in good standing under the
laws of the State of South Carolina and has the corporate power and
authority 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 Xxxxxxx Companies 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 Xxxxxxx Companies is owned of record as set forth
on Schedule 3.5 hereto;
(iv) Except as set forth in Schedule 3.12, insofar
as is known to such counsel, there is no litigation, proceeding or
investigation pending or threatened which would result in any Material
Adverse Change in the properties, businesses or prospects or in the
condition of the Xxxxxxx Companies, or which questions the validity of
this Agreement;
(v) This Agreement is a valid and binding
obligation of each of the Xxxxxxx Companies, and enforceable against
each of the Xxxxxxx Companies in
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accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws
affecting the enforcement of creditors' rights generally and general
principles of equity.
6.5 CONSENTS. Each of the Xxxxxxx Companies shall have received
consents to the transactions contemplated hereby and waivers of rights to
terminate or modify any material rights or obligations of each of the Xxxxxxx
Companies from any person from whom such consent or waiver is required under
any Designated Contract as of a date not more than ten days prior to the
Effective Time, or who, as a result of the transactions contemplated hereby,
would have such rights to terminate or modify such Designated Contracts, either
by the terms thereof or as a matter of law.
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 from Xxxxxx,
Xxxxxx & Xxxxx, P.A., independent certified public accountants for the Xxxxxxx
Companies, a letter dated the Effective Time, 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
Xxxxxxx Companies which would, and the structure of each of the Xxxxxxx
Companies and the Shareholders, would not, proscribe the transactions
contemplated hereby, if consummated, from being considered as a pooling of
interests 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 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
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interests" criteria, in form and substance satisfactory to the Republic
Companies.
6.9 COMPANY STOCK. At the Closing, each of the Shareholders
shall have delivered to the Republic Companies all certificates evidencing the
Xxxxxxx Common Stock held by him or her or duly executed stock powers with
indemnity for lost certificates.
6.10 STOCK POWERS. At the Closing, the Control Shareholders
shall have each delivered to Republic, for use in connection with the Pledged
Shares, as hereinafter defined, ten stock powers executed in blank.
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 contemplated
hereby, and which, in the reasonable 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 EMPLOYMENT. Xxxxxxx and Xxxxxxx shall have agreed to become
employees of Republic, or remain employees of the Xxxxxxx Companies, on terms
and conditions acceptable to Republic.
6.14 REAL ESTATE PURCHASE AND SALE AGREEMENT BETWEEN REPUBLIC AND
XXXXXXX. At or prior to the Closing, Republic shall close the purchase of a
certain parcel of real property located in Dorchester County, South Carolina,
comprising approximately 10 acres, from Fennel for an aggregate consideration
of 5,867 shares of Republic Common Stock, pursuant to the terms of a real
estate purchase contract to be entered into among Republic and Fennel which
shall include customary terms and conditions for commercial real estate
contracts in Charleston, South Carolina, including that Xxxxxxx will convey
good and insurable title to such property and Republic shall pay all closing
costs in connection therewith.
6.15 REAL ESTATE TRANSFER BY XXXXXXX TO GF/WWF. Prior to the
Closing, Xxxxxxx shall transfer a certain parcel of real property
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primarily located in Dorchester County, South Carolina, comprising
approximately 27 acres, to GF/WWF pursuant to which Republic shall pay all
transfer costs associated with such transfer and provided that after such
transfer the representations and warranties contained in Section 3.14 hereof
will be true and correct with respect to such parcel when held by GF/WWF,
except that the representations and warranties contained in Section 3.14 shall
not apply to a certain subparcel (the "Subparcel") located within the 27 acre
parcel. With respect to the Subparcel, Fennel represents and warrants the
following:
(a) The Subparcel is unimproved and has an area of
approximately 2 acres more or less;
(b) The Subparcel is not adjacent to any public or private
road and is located within the interior of the 27 acre parcel;
(c) No roads, driveways, walkways or alleys of any kind,
nature or description cross the Subparcel, and access to and from any
improvements located within the 27 acre parcel is not obtained by means of
crossing the Subparcel;
(d) No utilities necessary to service any part of the
improvements located within the 27 acre parcel are located within or cross
over, under or through the Subparcel;
(e) The Subparcel is not necessary for the utilization of
any of the improvements located within the 27 acre parcel and the ownership or
use of the Subparcel is not necessary for the validity or the continued
validity or the ability to obtain in the future any certificate of use and
occupancy (or its equivalent), license, permit or approval issued or to be
issued by any applicable governmental authority or agency having jurisdiction
over the 27 acres which is needed or to be needed with respect to the
improvements or the use of the 27 acre parcel;
(f) Fennel has not received any notice of any claim to the
Subparcel by any other party;
(g) Fennel has not received any notice or demand to cease
using the Subparcel or that its use is unlawful; and
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(h) The location and legal description of the Subparcel
shall be supplied to Republic before closing by means of a survey and shall be
transferred to GF/WWF by means of a quitclaim deed.
ARTICLE VII
CONDITIONS TO THE OBLIGATIONS OF
THE XXXXXXX COMPANIES AND THE SHAREHOLDERS
The obligations of the Xxxxxxx 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 Xxxxxxx 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 Xxxxxxx Companies a certificate,
dated as of the 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 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 of the Republic Companies, (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 the Republic
Companies, and (iii) none of the properties and assets of the Republic
Companies shall have been damaged by fire, flood, casualty, act of God or the
public enemy or other cause (regardless of insurance coverage for
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such damage) which damages may have a Material Adverse Change on the Republic
Companies, and there shall have been delivered to the Shareholders a
certificate to that effect, dated the Effective Time and signed by or on behalf
of the Republic Companies.
7.3 REPUBLIC SHARES. At the Closing, Republic shall have issued
all of the Republic Shares and shall have delivered to the Shareholders
certificates representing the Republic Shares required to be issued to them
hereunder.
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 Xxxxxxx Companies 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 REAL ESTATE PURCHASE AND SALE AGREEMENT BETWEEN REPUBLIC AND
XXXXXXX. At or prior to the Closing, Republic shall close the purchase of a
certain parcel of real property located in Dorchester County, South Carolina
from Xxxxxxx, pursuant to the terms of a real estate purchase contract to be
entered into among Republic and Xxxxxxx.
7.7 KEY PERSONNEL. H. Xxxxx Xxxxxxxx shall be a member of
Republic's Board of Directors as of the Effective Time.
7.8 NO CASH DIVIDENDS. Republic shall not have declared or paid
any cash dividends with respect to its Common Stock between the date hereof and
the Effective Time.
7.9 NO STOCK ADJUSTMENTS. Republic shall not have declared or
caused to occur a stock split or stock dividend with respect to the Common
Stock of Republic without proportionately adjusting the number of Republic
shares to be issued pursuant to the Mergers.
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7.10 CAPITALIZATION. Republic shall not have amended its First
Amended and Restated Certificate of Incorporation to change its capitalization
from that described in Section 2.6 herein.
7.11 OPINION OF COUNSEL. The Xxxxxxx Companies and the
Shareholders shall have received an opinion dated as of the Effective Time from
counsel for Republic, in the form and substance acceptable to the Xxxxxxx
Companies and the Shareholders to the effect that:
(i) Republic is a corporation duly organized and
existing and in good standing under the laws of the State of Delaware
and has the necessary corporate power and authority to carry on the
business now conducted by it and to own or lease the properties now
owned by it;
(ii) Republic has obtained all necessary
authorizations and consents of its Board of Directors to effect the
Mergers and no consent of its shareholders is required;
(iii) Insofar as is known to such counsel, there is no
litigation, proceeding or investigation pending or threatened which
would result in any Material Adverse Change in the properties,
business or condition of Republic or which questions the validity of
this Agreement; and
(iv) This Agreement is a valid and binding obligation
of the Republic Companies in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws affecting the enforcement of creditors'
rights generally and general principles of equity.
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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 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.
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, NASD 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 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 and any
amendments thereto, 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.
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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 shall maintain the continual
effectiveness of the Registration Statement for a period of three (3) years
following the Effective Date or until such earlier time as Republic reasonably
determines, based on an opinion of counsel, (a copy of which shall be provided
to the Holders), 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.
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
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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
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, individually and not jointly,
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; provided, however, that the indemnification obligations of
each Holder hereunder shall be limited to the amount of gross proceeds received
by such Holder from the sale of Republic Shares pursuant to the Registration
Statement.
(c) Promptly after receipt by an indemnified party
pursuant to the provisions of paragraph (a) or (b) of this Section
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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 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
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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).
8.8 ADDITIONAL UNDERTAKINGS.
(a) In order to facilitate the resale by Holders of Republic
Shares during any period in which the Registration Statement shall not be
effective, Republic shall use its best efforts to take all action and file with
the SEC such information as the SEC may require as a condition to the
availability of Rule 144 or Rule 145 under the Securities Act (or any successor
exemptive rule hereafter in effect).
(b) During the three (3) years following the Effective Date,
Republic shall use its best efforts to maintain its listing on The Nasdaq Stock
Market or other nationally recognized securities exchange.
ARTICLE IX
INDEMNIFICATION
9.1 AGREEMENT BY THE CONTROL SHAREHOLDERS TO INDEMNIFY. The
Control Shareholders 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 in excess of $500,000.00, to the
extent (i) resulting from any breach of a representation or warranty
made by the Xxxxxxx Companies in or pursuant to this Agreement, except
for matters disclosed to Republic prior to Closing pursuant to Section
5.6 herein, (ii) resulting from any breach of the covenants or
agreements made by
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the Xxxxxxx Companies or the Control Shareholders in this Agreement,
or (iii) resulting from any inaccuracy in any certificate delivered by
the Xxxxxxx Companies or any Control Shareholder pursuant to this
Agreement. The total Indemnifiable Damages shall not exceed Seven
Million Five Hundred Thousand and No/100 Dollars ($7,500,000.00) in
the aggregate.
(b) Without limiting the generality of the foregoing,
with respect to the measurement of Indemnifiable Damages, Republic
shall have the right to be put in the same financial position as it
would have been in at the Effective Date had each of the
representations and warranties of the Xxxxxxx Companies been true and
correct.
(c) Each of the representations and warranties made by
the Xxxxxxx Companies 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 (i) with respect to
claims resulting from a breach of any representation, warranty or
covenant relating to Republic incurring any Taxes because of the
disqualification of any of the Xxxxxxx Companies' "S" corporation
elections prior to the date preceding the Effective Time (a "Tax
Claim"); written notice of any such Tax Claim must be received prior
to the expiration of the statutory period during which any taxing
authority may bring a claim against the Xxxxxxx Companies, the Control
Shareholders or Republic for Taxes which are the subject of any such
Tax Claim, and (ii) the representations and warranties of the Xxxxxxx
Companies 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 Control
Shareholders after such representations and warranties shall thus
expire, provided, however, that claims for Indemnifiable Damages first
asserted within the applicable period shall not thereafter be barred.
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9.2 SECURITY FOR THE CONTROL SHAREHOLDERS' INDEMNIFICATION
OBLIGATION. As security for the agreement by the Control Shareholders to
indemnify and hold Republic harmless as described in Section 9.1, at the
Closing, the Control Shareholders shall deliver to and Republic shall set aside
and hold certificates representing 154,252 shares of Republic Common Stock to
be issued pursuant to Section 1.4 hereunder (the "Pledged Shares") for a period
not to exceed one year from the Effective Date. 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 Control Shareholders with respect to the Pledged
Shares as a result of any stock dividend or stock split. The Pledged Shares
and all stock issued or paid upon the Pledged Shares and proceeds thereof are
hereinafter referred to as the "Collateral." Except with respect to shares
transferred pursuant to the right of setoff referred to below (and in the case
of such shares, until the same are transferred), all Pledged Shares shall be
deemed to be owned by the Control Shareholders and the Control Shareholders
shall be entitled to vote the same and to receive all cash dividends paid upon
same.
(a) Republic may make a claim for payment of
Indemnifiable Damages and may set off against the Pledged Shares any
Indemnifiable Damages for which the Control Shareholders may be
responsible pursuant to this Agreement, subject, however, to the
following terms and conditions:
(1) Republic shall give written notice to the
Control Shareholders of any claim for Indemnifiable Damages,
which notice shall set forth (i) the amount of Indemnifiable
Damages which Republic claims to have sustained, and (ii)
the basis of the claim therefore, and (iii) copies of all
documentation and other evidence in support of such claim;
(2) Unless the Indemnifiable Damages arise from
a claim of a third party, with respect to which the Control
Shareholders have elected to assume the defense of and pay
any resulting
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liability, judgment or settlement thereunder, such set off
shall be effected on the later to occur of the expiration of
thirty (30) days from the delivery of such notice (the
"Notice of Contest Period") or, if such claim is contested,
the date the dispute is resolved, in accordance with
paragraph (3) below;
(3) If, prior to the expiration of the Notice
of Contest Period, the Control 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 shall submit such dispute to arbitration. The
arbitration shall be conducted in Charleston, South Carolina
by a committee of three arbitrators (one appointed by the
Control Shareholders, one appointed by Republic 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 permit discovery
in accordance with the Federal Rules of Civil Procedure and
shall abide by the rules of the American Arbitration
Association. Their decision shall be made within 45 days of
being appointed and shall be final and binding on all
parties;
(4) If the judgment of the arbitrators is
adverse to the Control Shareholders, the amount thereof
shall be paid by the Control Shareholders within ten (10)
days of the written decision of the arbitrators, which when
aggregated with all Indemnifiable Damages shall not exceed
$7,500,000. In the event the Control Shareholders do not
pay within such ten day period, then Republic shall within
five (5) days thereafter, set off against such portion of
the Collateral as shall have an aggregate value equal to the
amount of the final judgment of the arbitrators.
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(b) Subject to applicable accounting, securities, tax
and other legal requirements, the Control Shareholders may at any time
instruct Republic to sell some or all of the Pledged Shares and the
proceeds thereof shall be held as substitute collateral for the
Pledged Shares. The Control Shareholders may direct that such
proceeds be reinvested in investment grade securities in their names
subject to the security interest contemplated hereby. If the Pledged
Shares have not otherwise been released within four (4) years from the
Effective Date, the Control Shareholders will substitute other
collateral in place of the Pledged Shares equal to the value of such
Pledged Shares on the Effective Date and the Pledged Shares shall be
released.
(c) The Republic Companies agree to release the
Collateral from the security interest created in this Section 9.2 no
later than the first anniversary of the Effective Time and the
Republic Companies agree to promptly deliver to the Control
Shareholders all certificates evidencing any Pledged Shares then held
by them 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 Collateral remaining on deposit
after such claim shall not be returned to the Control Shareholders
until after the time of satisfaction.
(d) The remedies provided for in this Section 9.2 shall
be in addition to and not in lieu of any other remedies available to
the Republic Companies under this Agreement; provided however,
following consummation of the Mergers, a claim for Indemnifiable
Damages pursuant to this Article IX shall be Republic's sole and
exclusive remedy for any breach of the representations, warranties,
covenants and agreements contained herein or in any other documents
delivered in connection with the Closing, and in consideration of such
limitation, the Control Shareholders agree to waive any and all rights
of contribution or other claims he or she may have against the Xxxxxxx
Companies with respect to the breach of any of the Xxxxxxx Companies'
representations and warranties.
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9.3 ADJUSTMENT TO MERGER CONSIDERATION. All setoffs of Pledged
Shares for Indemnifiable Damages made pursuant to this Article IX shall be
treated as adjustments to the consideration set forth in Section 1.4.
ARTICLE X
SECURITIES LAW MATTERS
The parties agree as follows with respect to the sale or other
disposition after the Effective Time of the Republic Shares:
10.1 DISPOSITION OF SHARES. The Control Shareholders represent
and warrant on behalf of themselves and the Shareholders 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 (b) an effective
registration statement filed by Republic with the SEC under the Securities Act.
10.2 LEGEND. The certificate representing the Republic Shares
shall bear the following legend:
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
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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.
"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.
"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
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(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 which
change (or effect) individually or in the aggregate, is materially
adverse to such condition, properties, assets, liabilities, rights,
obligations, operations, business.
"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 Mergers.
"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
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"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.
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.
11.3 KNOWLEDGE. Whenever any representation or warranty of an
individual is expressly qualified by reference to knowledge, the "knowledge" so
referred to shall be deemed to be such individual's actual knowledge after
reasonable inquiry under the circumstances. Whenever any representation and
warranty of a corporation is expressly qualified by reference to knowledge, the
"knowledge" so referred to shall be deemed to be the actual knowledge, after
reasonable inquiry under the circumstances, of its officers, directors and
managers, including those officers, directors and managers having authority
over or responsibility for the subject matter of such representation or
warranty, at the time such representation or warranty is made.
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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 any party at any time prior to the Closing Date
if there shall be a pending or threatened action or proceeding before
any court or other governmental body which shall seek to restrain,
prohibit or invalidate the transactions contemplated hereby, and
which, in the reasonable judgment of such party, makes it inadvisable
to proceed with the transactions contemplated by this Agreement.
(c) by Republic in the event of a material breach by any
of the Xxxxxxx Companies or the Control Shareholders of any provision
of this Agreement, or by the Control Shareholders in the event of a
material breach by the Republic Companies of any provision of this
Agreement; or
(d) by the Xxxxxxx Companies or the Republic Companies
by notice to the other consistent with the notice provisions contained
herein, if the Closing shall not have occurred by December 31, 1995.
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, there shall be
no liability on the part of the parties hereto or thereto to each other and all
rights and obligations of the parties hereto or thereto shall cease; 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: Xxxxxx X. Xxxxxx, President
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 THE XXXXXXX COMPANIES OR THE SHAREHOLDERS TO:
Xxxxxxx Container Company, Inc.
X.X. Xxx 00000
X. Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
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WITH A COPY TO:
Xxxxxxxx X. Xxxxxxx, Esq.
Xxxxxxx & Xxxxxxx, L.L.P.
000 Xxxxxxx Xxxx.
Xx. Xxxxxxxx, Xxxxx Xxxxxxxx 00000
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
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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 party without the
prior written consent of the other parties.
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.
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 obtain 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/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxxxx, Executive
Vice President
RI/FCC MERGERSUB, INC.
By:/s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxxxx, Executive
Vice President
RI/PD MERGERSUB, INC.
By: Xxxxxxx X. Xxxxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxxxx, Executive
Vice President
RI/FV MERGERSUB, INC.
By:/s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxxxx, Executive
Vice President
RI/FWS MERGERSUB, INC.
By:/s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxxxx, Executive
Vice President
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RI/INVESTMENT CO., INC.
By:/s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxxxx, Executive
Vice President
XXXXXXX WASTE SYSTEMS, INC.
By:/s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxx, President
XXXXXXX CONTAINER CO., INC.
By:/s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxx, President
XXXX-VAC, INC.
By:/s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxx, President
PEPPERHILL DEVELOPMENT CO., INC.
By:/s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxx, President
GF/WWF, INC.
By:/s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxx, President
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/s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxx, individually
/s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxx, individually
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The undersigned hereby join in this Agreement for the limited purpose
of agreeing that they will comply with those sections of this Agreement which
are applicable to such parties.
/s/ G. Xxxxx Xxxxxxx
-----------------------------------------
G. Xxxxx Xxxxxxx, individually
/s/ S. Xxxxxxx Xxxxxxx
-----------------------------------------
S. Xxxxxxx Xxxxxxx, individually
/s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Xxxxx X. Xxxxxxxx, individually
/s/ Xxxxx X. Xxxxx
-----------------------------------------
Xxxxx X. Xxxxx, individually
/s/ Xxxx X. Xxxxxxx
-----------------------------------------
Xxxx X. Xxxxxxx, individually
/s/ Xxx X. Xxxxxxxxxxxx
-----------------------------------------
Xxx X. Xxxxxxxxxxxx, individually
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxxx, individually
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