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EXHIBIT 2.7
COMMON STOCK PURCHASE AGREEMENT
DATED AS OF JANUARY 13, 1997
BETWEEN
XXXX X. XXXXX
AND
TEAM RENTAL GROUP, INC.
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TABLE OF CONTENTS
Page
ARTICLE I
SALE OF STOCK................................................ 2
SECTION 1.1 Sale and Purchase......................................................................... 2
SECTION 1.2 Purchase Price............................................................................ 2
ARTICLE II
THE CLOSING................................................. 2
SECTION 2.1 Closing................................................................................... 2
SECTION 2.2 Delivery of Shares by Seller to Buyer..................................................... 3
SECTION 2.3 Delivery of Purchase Price by Buyer to
Seller...................................................................... 3
ARTICLE III
REPRESENTATIONS AND WARRANTIES........................................ 3
SECTION 3.1 Representations and Warranties of Seller.................................................. 3
SECTION 3.2 Representations and Warranties of Buyer................................................... 6
SECTION 3.3 Representations and Warranties of Seller
and Buyer................................................................... 9
SECTION 3.4 Disclosure on Schedules................................................................... 10
ARTICLE IV
COVENANTS OF THE PARTIES........................................... 10
SECTION 4.1 Further Assurances........................................................................ 10
SECTION 4.2 Termination of Stockholders Agreement...................................................... 12
ARTICLE V
CLOSING CONDITIONS.............................................. 13
SECTION 5.1 Conditions to Each Party's Obligations.................................................... 13
SECTION 5.2 Conditions to the Obligations of Buyer.................................................... 13
SECTION 5.3 Conditions to the Obligations of Seller................................................... 14
SECTION 5.4 No Closing Unless All Transactions Occur.................................................. 16
ARTICLE VI
TERMINATION................................................. 17
SECTION 6.1 Termination............................................................................... 17
SECTION 6.2 Effect of Termination..................................................................... 17
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Page
ARTICLE VII
SURVIVAL; LIMITATION OF REMEDIES....................................... 17
SECTION 7.1 Survival.................................................................................. 17
SECTION 7.2 Limitation of Remedies.................................................................... 18
SECTION 7.3 Exclusivity............................................................................... 18
ARTICLE VIII
MISCELLANEOUS................................................ 19
SECTION 8.1 Notices................................................................................... 19
SECTION 8.2 Publicity................................................................................. 21
SECTION 8.3 Costs and Expenses........................................................................ 21
SECTION 8.4 Amendment and Modification................................................................ 21
SECTION 8.5 Waivers and Extensions.................................................................... 22
SECTION 8.6 Interpretation............................................................................ 22
SECTION 8.7 Entire Agreement; Third Party
Beneficiaries; Assignment................................................... 23
SECTION 8.8 Severability.............................................................................. 24
SECTION 8.9 Governing Law............................................................................. 24
SECTION 8.10 Specific Performance...................................................................... 24
SECTION 8.11 Resolution of Disputes.................................................................... 25
SECTION 8.12 Consent to Jurisdiction; Waiver of Jury
Trial....................................................................... 25
SECTION 8.13 Counterparts............................................................................. 27
SCHEDULES
Schedule 3.1(b) Seller Required Filings, Consents, etc.
Schedule 3.2(c) Buyer Required Filings, Consents, etc.
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INDEX OF DEFINED TERMS
Term Page
---- ----
Advertising Agreement .............................................................................. 2
Agreement .......................................................................................... 1
BCorp Stock Purchase Agreement ..................................................................... 1
Business day ....................................................................................... 3
Buyer .............................................................................................. 1
Buyer Designator ................................................................................... 1
Closing ............................................................................................ 2
Closing Date ....................................................................................... 3
Common Stock ....................................................................................... 1
Company ............................................................................................ 1
Governmental Entity ................................................................................ 4
HSR Act ............................................................................................ 4
Include ............................................................................................ 23
Includes ........................................................................................... 23
Including .......................................................................................... 23
Indemnification Agreement .......................................................................... 16
Person ............................................................................................. 23
Preferred Stock Purchase Agreement ................................................................. 1
Purchase Price ..................................................................................... 2
Securities Act ..................................................................................... 8
Seller ............................................................................................. 1
Series X Preferred Stock ........................................................................... 1
Shares ............................................................................................. 1
Stockholders Agreement ............................................................................. 1
Supply Agreement ................................................................................... 2
Transactions ....................................................................................... 2
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030350\0017\02252\000000XX.XXX
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STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (this "Agreement") dated as of
January 13, 1997 between XXXX X. XXXXX ("Seller") and TEAM RENTAL
GROUP, INC., a Delaware corporation ("Buyer").
RECITALS
A. Seller owns 10,000 shares (the "Shares") of common stock,
par value $.01 per share ("Common Stock"), constituting, as of the date hereof,
all of the issued and outstanding shares of Common Stock of Budget Rent A Car
Corporation, a Delaware corporation (the "Company").
B. Pursuant to an agreement among the stockholders of the
Company, dated as of June 28, 1996 (the "Stockholders Agreement"), Ford Motor
Company, a Delaware corporation ("Buyer Designator"), has the right to cause
Seller, as the holder of the Shares, to sell the Shares to a purchaser
designated by Buyer Designator, and Buyer Designator has designated Buyer as
such a purchaser.
C. Buyer wishes to purchase the Shares and has agreed,
pursuant to a separate stock purchase agreement dated as of the date hereof (the
"Preferred Stock Purchase Agreement") between Buyer Designator and Buyer, to
purchase the Series X Cumulative Preferred Stock, par value $.01 per share, with
a stated value of $1,000 per share (the "Series X Preferred Stock"), of the
Company owned by Buyer Designator, and, pursuant to a separate stock purchase
agreement dated as of the date hereof (the "BCorp. Stock Purchase Agreement")
between the Company and Buyer, to purchase 2,740,000 newly issued shares of
Common Stock from the Company.
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The Preferred Stock Purchase Agreement contemplates that, concurrently with and
as a condition to the Closing (as defined in Section 2.1), Buyer Designator or
one of its affiliates will enter into a supply agreement (the "Supply
Agreement") and an advertising agreement (the "Advertising Agreement") with the
Company. For purposes of this Agreement, the term "Transactions" means the
transactions contemplated by this Agreement, the Preferred Stock Purchase
Agreement, the BCorp. Stock Purchase Agreement, the Supply Agreement and the
Advertising Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration, receipt of which is hereby acknowledged, the
parties hereto hereby agree as follows:
ARTICLE I
SALE OF STOCK
SECTION 1.1 Sale and Purchase. On the Closing Date (as defined
in Section 2.1), Seller shall sell, convey and transfer to Buyer the Shares.
SECTION 1.2 Purchase Price. The purchase price to be paid by
Buyer to Seller for the Shares shall be $1,000,000 (the "Purchase Price"), which
shall be payable in cash and in immediately available (federal) funds at the
Closing.
ARTICLE II
THE CLOSING
SECTION 2.1 Closing. Subject to the conditions set forth in
Article V, the closing of the sale and purchase of the Shares (the "Closing")
shall take place at 10:00 a.m., Eastern
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time, at the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, xx March 31, 1997, or at such other time or on such other date,
or at such other place, as the parties shall agree in writing (the date of the
Closing, the "Closing Date").
SECTION 2.2 Delivery of Shares by Seller to Buyer. At the
Closing, Seller will deliver to Buyer a certificate or certificates representing
the Shares, duly endorsed in blank or accompanied by stock transfer powers duly
executed in blank, with all necessary stock transfer tax stamps attached thereto
and canceled.
SECTION 2.3 Delivery of Purchase Price by Buyer to Seller. At
the Closing, Buyer will deliver to Seller the Purchase Price, by intra-bank
transfer at Xxxxxx Guaranty Trust Company of New York of cash in U.S. dollars
and in immediately available (federal) funds to an account specified to Buyer by
Seller in writing no later than the business day prior to the Closing Date. For
purposes of this Agreement, "business day" means any day other than a Saturday,
Sunday or other day on which commercial banks in New York, New York or Dearborn,
Michigan are authorized or required by law to be closed.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Representations and Warranties of Seller. Seller
represents and warrants to Buyer as follows:
(a) Validity of Agreement. This Agreement has been
duly executed and delivered by Seller and, assuming due
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authorization, execution and delivery by Buyer, constitutes a legal, valid and
binding obligation of Seller enforceable against Seller in accordance with its
terms, except as affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally and general equitable principles (whether considered
in a proceeding in equity or at law).
(b) Consents and Approvals; No Violations. Except as set forth
on Schedule 3.1(b) and for all filings, permits, authorizations, consents and
approvals as may be required under, and other applicable requirements of, the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), state and foreign competition, antitrust and takeover laws, including
applicable laws of Australia, Brazil, Canada, Ireland, Mexico, New Zealand and
Portugal and applicable regulations of the European Union, as to which the
Seller makes no representation, the execution, delivery or performance of this
Agreement by Seller will not (i) require Seller to make any filing with, or
Seller to obtain any permit, authorization, consent or approval of, any court,
arbitral tribunal, administrative agency or commission or other governmental or
other regulatory authority, commission or agency (a "Governmental Entity"), (ii)
result in a violation or breach of, or constitute (with or without due notice or
lapse of time or both) a default (or give rise to any right of termination,
amendment, cancellation or acceleration) under, any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, guarantee,
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other evidence of indebtedness, lease, license, contract, agreement or other
instrument or obligation to which Seller is a party or by which Seller or any of
Seller's properties or assets may be bound or (iii) violate any order, writ,
injunction or decree, or to Seller's knowledge, any statute, rule or regulation,
in each case applicable to Seller or any of Seller's properties or assets,
except, in the case of clauses (i), (ii) and (iii), for failures to make
filings, or to obtain permits, authorizations, consents or approvals, or
violations, breaches, defaults, or rights of termination, amendment,
cancellation or acceleration, which would not prevent or materially hinder or
delay the ability of Seller to perform Seller's obligations under this
Agreement.
(c) Litigation. There is no action, suit or proceeding before
or by any Governmental Entity, domestic or foreign, now pending or, to Seller's
knowledge, threatened against Seller which, if adversely determined, would
prevent or materially hinder or delay the ability of Seller to perform Seller's
obligations under this Agreement.
(d) Good Title to Shares. Upon consummation of the purchase
and sale of the Shares at the Closing, as contemplated by this Agreement, Seller
will deliver to Buyer good title to the Shares, free and clear of any liens,
charges, security interests, options, claims or encumbrances of any nature
whatsoever.
(e) Finders' Fees. Seller has not retained, and is not subject
to the valid claim of, any finder, broker, consultant or financial advisor in
connection with this Agreement who might
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be entitled to a fee or commission from Buyer in connection with this Agreement.
SECTION 3.2 Representations and Warranties of Buyer. Buyer
represents and warrants to Seller as follows:
(a) Due Organization of Buyer. Buyer is a corporation duly
organized, validly existing and in good standing as a domestic corporation under
the laws of the state of its organization with all requisite corporate power and
authority to execute, deliver and perform this Agreement and to consummate the
Transactions.
(b) Validity of Agreement. Buyer has all necessary corporate
power and authority to enter into this Agreement, to perform its obligations
hereunder and to consummate the Transactions. The execution, delivery and
performance of this Agreement by Buyer and the consummation by Buyer of the
Transactions have been duly authorized by all necessary corporate action on the
part of Buyer. This Agreement has been duly executed and delivered by Buyer and,
assuming execution and delivery by Seller, constitutes a legal, valid and
binding obligation of Buyer enforceable against it in accordance with its terms,
except as affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally and general equitable principles (whether considered
in a proceeding in equity or at law).
(c) Consents and Approvals; No Violations. Except as set forth
on Schedule 3.2(c) and for all filings, permits,
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authorizations, consents and approvals as may be required under, and other
applicable requirements of, the HSR Act, state and foreign competition,
antitrust and takeover laws, including applicable laws of Australia, Brazil,
Canada, Ireland, Mexico, New Zealand and Portugal and applicable regulations of
the European Union, neither the execution, delivery or performance of this
Agreement by Buyer nor the consummation by Buyer of the Transactions will (i)
conflict with or result in any breach of any provision of the certificate of
incorporation or by-laws of Buyer, (ii) require Buyer to make any filing with,
or Buyer to obtain any permit, authorization, consent or approval of, any
Governmental Entity, (iii) result in a violation or breach of, or constitute
(with or without due notice or lapse of time or both) a default (or give rise to
any right of termination, amendment, cancellation or acceleration) under, any of
the terms, conditions or provisions of any note, bond, mortgage, indenture,
guarantee, other evidence of indebtedness, lease, license, contract, agreement
or other instrument or obligation to which Buyer or any of its subsidiaries is a
party or by which any of them or any of their properties or assets may be bound
or (iv) violate any order, writ, injunction, decree, statute, rule or regulation
applicable to Buyer, any of its subsidiaries or any of their properties or
assets, except, in the case of clauses (ii), (iii) and (iv), for failures to
make filings, or to obtain permits, authorizations, consents or approvals, or
violations, breaches, defaults, or rights of termination, amendment,
cancellation or acceleration, which would not prevent or materially hinder or
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delay the ability of Buyer to perform its obligations under this Agreement and
to consummate the Transactions.
(d) Litigation. There is no action, suit or proceeding before
or by any Governmental Entity, domestic or foreign, now pending or, to Buyer's
knowledge, threatened against Buyer which, if adversely determined, would
prevent or materially hinder or delay the ability of Buyer to perform its
obligations under this Agreement or to consummate the Transactions.
(e) Available Funds. Buyer has sufficient funds, or has
obtained binding written commitments (copies of which have been furnished to
Seller and to Buyer Designator) from responsible banks and/or other financial
institutions to provide any required financing to pay the Purchase Price, which
funds will be available at the Closing to pay the Purchase Price.
(f) No Registration. Buyer is aware that the Shares have not
been registered under the Securities Act of 1933, as amended (the "Securities
Act"), or under any state securities laws. Buyer is not an underwriter (within
the meaning of such term under the Securities Act) with respect to the Shares
and is purchasing the Shares solely for investment, for its own account with no
present intention to distribute any such Shares to any person, and Buyer will
not sell or otherwise dispose of such Shares except in compliance with the
registration requirements under the Securities Act and the rules and regulations
promulgated thereunder, and other applicable securities laws, or pursuant to
exemptions therefrom.
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(g) Finders' Fees. Buyer has not retained, and is not subject
to the valid claim of, any finder, broker, consultant or financial advisor in
connection with the Transactions who might be entitled to a fee or commission
from Seller in connection with the Transactions, other than Credit Suisse First
Boston Corporation. Buyer will be solely responsible for paying all fees and
expenses that become due and payable to Credit Suisse First Boston Corporation
in connection with the Transactions.
(h) Buyer's Investigation. The Buyer has conducted such
investigation of the Company and its business and operations as it has deemed
necessary in order to make an informed decision concerning the purchase of the
Shares pursuant to this Agreement and the consummation of the Transactions. The
Buyer acknowledges that it has been given access to the facilities, books and
records of the Company and has had the opportunity to ask questions of
management. In all matters related to the Company, financial or otherwise, the
Buyer has not relied upon any information furnished by Seller, except for the
representations contained in Section 3.1 of this Agreement.
SECTION 3.3 Representations and Warranties of Seller and
Buyer. Each of Seller and Buyer represents and warrants to the other that it is
the explicit intent of each party hereto that Seller is making no representation
or warranty whatsoever, express or implied, including any implied warranty as to
condition, merchantability or suitability, as to the properties, assets or
future prospects or performance of the Company or any of the Company Entities
(as defined in the BCorp. Stock Purchase
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Agreement) or such properties or assets, and that Buyer is taking the Company
Entities "as is" and "where is," except for the express representations and
warranties of the Company in the BCorp. Stock Purchase Agreement or in any
schedule or exhibit thereto, or in any certificate, document or other instrument
contemplated thereby and delivered in connection with therewith. Seller shall
have no responsibility for or liability with respect to any representation,
warranty or covenant of the Company or the Buyer Designator.
SECTION 3.4 Disclosure on Schedules. Disclosure of any fact or
item in any Schedule or Exhibit referenced by a particular Section of this
Agreement shall, should the existence of the fact or item be relevant to any
other Section of this Agreement, be deemed to be disclosed with respect to such
other Section whether or not a specific cross reference appears. Disclosure of
any fact or item in any Schedule or Exhibit shall not necessarily mean that such
fact or item, individually, would prevent or materially hinder or delay the
ability of Seller or Buyer, as the case may be, to perform its obligations under
this Agreement.
ARTICLE IV
COVENANTS OF THE PARTIES
SECTION 4.1 Further Assurances. (a) Subject to Section 4.1(b),
each of Seller and Buyer shall use reasonable efforts to take, or cause to be
taken, all action, and to do, or cause to be done, all things necessary, proper
or advisable under applicable laws and regulations to consummate and make
effective
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the Closing. In furtherance and without limiting the foregoing, Seller agrees to
take any and all actions necessary or appropriate to cause the authorization of
the shares of Common Stock to be issued and sold by the Company pursuant to the
BCorp.
Stock Purchase Agreement.
(b) (i) Notwithstanding anything to the contrary herein, Buyer
shall, and shall cause its affiliates to, (A) promptly effect all necessary
registrations and filings, including, but not limited to, filings under the HSR
Act and submissions of information requested by any Governmental Entity,
domestic or foreign, to secure antitrust clearance for the consummation of the
Transactions and (B) promptly take all steps (including executing agreements and
submitting to judicial or administrative orders) required by the Federal Trade
Commission or its staff, the Assistant Attorney General in charge of the
Antitrust Division of the Department of Justice or such person's staff, any
state attorney general or its staff, or any similar foreign Governmental Entity,
to secure antitrust clearance for the consummation of the Transactions
(including by avoiding or setting aside any injunction or other order of any
court of competent jurisdiction or other Governmental Entity), including all
steps to make arrangements for, or to effect the sale or other disposition of,
particular assets or categories of assets or businesses of Buyer or any of its
affiliates, or assets or businesses of the Company Entities, and to hold
separate (including pursuant to arrangements which restrict, limit or
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prohibit access to) the assets or businesses of the Company Entities pending any
such sale or other disposition.
(ii) Notwithstanding anything to the contrary herein, Seller
shall effect promptly all necessary registrations and filings, including, but
not limited to, filings under the HSR Act and submissions of information
requested by any Governmental Entity, domestic or foreign, to secure antitrust
clearance for the consummation of the Transactions.
(iii) All the actions to be taken by Buyer or its affiliates
or by Seller pursuant to this Section 4.1(b) will be consistent with their
respective obligations under applicable law or any agreement to which any of
such persons is a party. Buyer and Seller agree promptly to inform each other of
any communication made by such party to, or received by such party from, the
Federal Trade Commission, the Antitrust Division of Department of Justice or any
other Governmental Entity regarding any of the Transactions.
(c) If at any time after the Closing Date any further action
is reasonably necessary to carry out the purposes of this Agreement, the parties
hereto shall take or cause to be taken all necessary action, including the
execution and delivery of such further instruments and documents as may be
reasonably requested by the other party for such purposes or otherwise to
consummate and give effect to the Transactions.
SECTION 4.2 Termination of Stockholders Agreement.
Seller shall consent to the termination of the Stockholders
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Agreement, such consent to be effective concurrently with the Closing.
ARTICLE V
CLOSING CONDITIONS
SECTION 5.1 Conditions to Each Party's Obligations. The
respective obligations of each party to effect the Closing is subject to the
satisfaction, at or prior to the Closing, of each of the following conditions:
(a) No preliminary or permanent injunction or other order
prohibiting the consummation of the Transactions shall have been issued
by any court of competent jurisdiction or by any governmental or
regulatory body and still be in effect; nor shall any statute, rule,
regulation or executive order have been promulgated or enacted by any
Governmental Entity which enjoins or otherwise prohibits the
consummation of the Transactions;
(b) All applicable waiting periods under the HSR Act
(including any extensions thereof) shall have expired or been
terminated;
(c) The closing of the transactions contemplated by the
Preferred Stock Purchase Agreement shall have been consummated; and
(d) The closing of the transactions contemplated by the BCorp.
Stock Purchase Agreement shall have been consummated.
SECTION 5.2 Conditions to the Obligations of Buyer.
The obligation of Buyer to effect the Closing is subject to the
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satisfaction, at or prior to the Closing, of each of the following conditions:
(a) The representations and warranties of Seller shall be true
and accurate as of the Closing Date as if made at and as of such date
(except for those representations and warranties that address matters
only as of a particular date or only with respect to a specific period
of time which need only be true and accurate as of such date or with
respect to such period), except where the failure of such
representations and warranties to be so true and correct (without
giving effect to any exception contained therein for matters that would
or would not, as the case may be, prevent or materially hinder or delay
the ability of Seller to perform Seller's obligations under this
Agreement and to consummate the Transactions), would not, individually
or in the aggregate, prevent or materially hinder or delay the ability
of Seller to perform Seller's obligations under this Agreement and to
consummate the Transactions;
(b) Seller shall have performed in all material respects
Seller's obligations hereunder required to be performed by Seller at or
prior to the Closing; and
(c) Seller shall have delivered to Buyer and to Buyer
Designator a certificate, duly executed by Seller, to the effect set
forth in Sections 5.2(a) and 5.2(b).
SECTION 5.3 Conditions to the Obligations of Seller. The
obligation of Seller to effect the Closing is subject to the
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satisfaction, at or prior to the Closing, of each of the following conditions:
(a) The representations and warranties of Buyer shall be true
and accurate as of the Closing Date as if made at and as of such date
(except for those representations and warranties that address matters
only as of a particular date or only with respect to a specific period
of time which need only be true and accurate as of such date or with
respect to such period), except where the failure of such
representations and warranties to be so true and correct (without
giving effect to any exception contained therein for matters that would
or would not, as the case may be, prevent or materially hinder or delay
the ability of Buyer to perform its obligations under this Agreement
and to consummate the Transactions), would not, individually or in the
aggregate, prevent or materially hinder or delay the ability of Buyer
to perform its obligations under this Agreement and to consummate the
Transactions;
(b) Buyer shall have performed in all material
respects its obligations hereunder required to be performed
by it at or prior to the Closing;
(c) Buyer shall have delivered to Seller and to Buyer
Designator a certificate, duly executed by its Chief Executive Officer
or Chief Financial Officer, to the effect set forth in Sections 5.3(a)
and 5.3(b);
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(d) The Stockholders Agreement and the Consulting Agreement,
dated as of January 1, 1992 between the Company and an affiliate of the
Seller, shall have been terminated;
(e) The Company shall have entered to an indemnification
agreement (the "Indemnification Agreement") with the Seller pursuant to
which the Company and each of the other Company Entities shall
indemnify, defend and hold harmless the Seller with respect to any
claims or actions brought against the Seller in any capacity related to
or arising from the business or operations of any Company Entity or any
of the Transactions, except for any breach by Seller of the
representations and warranties contained herein or any of Seller's
covenants contained herein; and
(f) Seller shall have received written releases and waiver of
claims or causes of action which Buyer Designator or any of the Company
Entities has or may have against Seller for certain actions, events or
occurrences prior to the Closing, pursuant to a release instrument
substantially in the form previously agreed.
SECTION 5.4 No Closing Unless All Transactions Occur.
Notwithstanding anything to the contrary in this Agreement or elsewhere, the
Closing shall be deemed not to have occurred (and any actions taken by any party
hereunder in connection with the Closing shall be unwound), unless all of the
conditions to closing contained in each of the Preferred Stock Purchase
Agreement and the BCorp. Stock Purchase Agreement shall have been satisfied (or
waived in accordance with the terms and conditions
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of such agreements) and such closings under such agreements shall have been
consummated in accordance with the terms of such agreements.
ARTICLE VI
TERMINATION
SECTION 6.1 Termination. This Agreement shall be terminated
and the transactions contemplated hereby shall be abandoned if, prior to the
Closing, the Preferred Stock Purchase Agreement shall have been terminated.
SECTION 6.2 Effect of Termination. In the event of the
termination of this Agreement as provided in Section 6.1, this Agreement shall
forthwith become null and void, and there shall be no liability on the part of
Seller or Buyer, except for Seller's or Buyer's, as the case may be, breach of
this Agreement and except that the provisions of Article VII and Article VIII
shall survive any such termination.
ARTICLE VII
SURVIVAL; LIMITATION OF REMEDIES
SECTION 7.1 Survival. The respective representations and
warranties, covenants and agreements of Seller and Buyer contained in this
Agreement shall survive the Closing (subject, with respect to remedies for
breach thereof, to Section 7.2), to, but not including, the first anniversary of
the Closing Date, and thereafter shall terminate and be of no further force or
effect, except to the extent that, prior to such first anniversary of the
Closing Date, written notice of the breach shall have been given (which written
notice shall specify with particularity the nature
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of the alleged breach and the particular facts underlying each such allegation),
in the case of an alleged breach by Seller, to Seller (with a copy to Buyer
Designator), or, in the case of an alleged breach by Buyer, to Buyer (with a
copy to Buyer Designator). Notwithstanding the immediately preceding sentence,
the representations and warranties of Seller contained in Sections 3.1(a) and
3.1(d) shall survive the Closing (subject, with respect to remedies for breach
thereof, to Section 7.2), to but not including the third anniversary of the
Closing Date and from and after the third anniversary of the Closing Date the
representations and warranties of Seller contained in Sections 3.1(a) and 3.1(d)
shall terminate and be of no further force or effect, except to the extent that,
prior to such third anniversary of the Closing Date, written notice of the
breach of such representation and warranty shall have been given in the same
manner and to the same person as set forth in the preceding sentence.
SECTION 7.2 Limitation of Remedies. In no event shall any
party hereto be liable to the other (or to any other person) for consequential,
punitive or special damages arising out of any breach of the provisions of this
Agreement. In any event, Seller's maximum liability to Buyer or Buyer Designator
for indemnification or any breach of or claim under this Agreement shall not
exceed an aggregate amount equal to the Purchase Price.
SECTION 7.3 Exclusivity. The parties agree that the provisions
of this Agreement governing claims for breach hereof and remedies with respect
thereto are exclusive and shall be in
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lieu of all other indemnification, contribution, liability and remedies which
may be available with respect to the purchase and sale of the Shares, whether
under common law or otherwise. To the maximum extent permitted by law, the
parties hereby irrevocably and unconditionally waive any and all other rights,
remedies and causes of action for breach of this Agreement or claims related to
the sale of Shares contemplated hereby. The provisions with respect to this
Section 7.3 shall not apply to the agreements and arrangements contemplated by
the Release and the Indemnification Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 Notices. All notices, requests, demands or other
communications provided herein shall be made in writing and shall be deemed to
have been duly given (unless otherwise specifically provided in any Section of
this Agreement) if delivered as follows:
If to Seller:
Xx. Xxxx X. Xxxxx
0 Xxxxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Tel: (000) 000-0000
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with copies to:
XxXxxxxxx, Will & Xxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
-and-
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
Tel: (000) 000-0000
-and-
Ford Motor Company
Xxx Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Secretary
Fax: (000) 000-0000
Tel: (000) 000-0000
If to Buyer:
Team Rental Group, Inc.
000 Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
Fax: (000) 000-0000
Tel: (000) 000-0000
with a copy to:
King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxx III, Esq.
Fax: (000) 000-0000
Tel: (000) 000-0000
or to such other address as either party shall have specified by notice in
writing to the other party. All such notices, requests, demands and
communications shall be deemed to have been received on (i) the date of delivery
if sent by messenger, (ii)
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on the business day following the business day on which delivered to a
recognized courier service if sent by overnight courier, or (iii) on the fifth
business day after the mailing thereof if sent by mail. Notices may also be
delivered by fax, provided that any such notice also is delivered in a manner
contemplated by clause (i), (ii) or (iii) above.
SECTION 8.2 Publicity. The parties hereto agree that, without
the prior written consent of Buyer Designator, they will not issue any press
release or otherwise make any public announcement with respect to this Agreement
or the Transactions, except as may be required by applicable law (including
federal securities laws) if such party determines in good faith that it is
appropriate to do so and provides prompt prior written notice to Buyer
Designator.
SECTION 8.3 Costs and Expenses. All costs and expenses
incurred in connection with this Agreement and the consummation of the
Transactions shall be paid by the party incurring such expenses, provided that
Seller's reasonable out-of-pocket costs and expenses shall be paid by the Buyer
Designator.
SECTION 8.4 Amendment and Modification. This Agreement may be
amended, modified and supplemented in any and all respects by written agreement
of the parties hereto; provided, however, that no amendment, modification or
supplement shall be effective without the prior written consent of Buyer
Designator.
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SECTION 8.5 Waivers and Extensions. Each party to this
Agreement may waive any right, breach or default of the other party to this
Agreement or conditions to its own obligations; provided that such waiver will
not be effective against the waiving party unless it is in writing, is signed by
such party and specifically refers to this Agreement; provided, further, that
(i) no waiver by the Seller shall be effective without the prior written consent
of Buyer Designator and (ii) no waiver by Buyer shall be effective without the
prior written consent of Buyer Designator, unless such waiver by Buyer includes
an absolute and unconditional release of Buyer Designator from any and all
Losses that may arise out of or result from the right, breach, default or
condition waived by Buyer. Waivers may be made in advance or after the right
waived has arisen or the breach or default waived has occurred. Any waiver may
be conditional. No waiver of any breach of any agreement or provision herein
contained shall be deemed a waiver of any preceding or succeeding breach thereof
nor of any other agreement or provision herein contained. No waiver or extension
of time for performance of any obligations or acts shall be deemed a waiver or
extension of the time for performance of any other obligations or acts.
SECTION 8.6 Interpretation. (a) When a reference is made in
this Agreement to a Section, Exhibit or Schedule, such reference shall be to a
Section, Exhibit or Schedule of this Agreement unless otherwise indicated.
Titles and headings of
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sections of this Agreement are for convenience only and shall not affect the
construction of any provision of this Agreement.
(b) Whenever the words "include", "includes" or "including"
are used in this Agreement they shall be deemed to be followed by the words
"without limitation".
(c) The term "person" means an individual, corporation,
partnership, limited liability company, association, trust, incorporated
organization, Governmental Entity or other entity.
SECTION 8.7 Entire Agreement; Third Party Beneficiaries;
Assignment. This Agreement (including the exhibits hereto and the documents,
including the Preferred Stock Purchase Agreement and the BCorp. Stock Purchase
Agreement, and the instruments referred to herein): (a) constitutes the entire
agreement and supersedes all prior agreements and understandings, both written
and oral, among the parties with respect to the subject matter hereof, and (b)
is not intended to confer upon any person, other than the parties hereto, any
rights or remedies hereunder, except that Buyer Designator shall be a third
party beneficiary of, and entitled to enforce, the representations, warranties,
covenants, conditions and other terms and provisions of this Agreement. Neither
this Agreement nor any of the rights, interests or obligations hereunder shall
be assigned by any of the parties hereto (whether by operation of law or
otherwise) without the prior written consent of the other party and Buyer
Designator. This Agreement will be binding upon the parties and their respective
successors and assigns.
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SECTION 8.8 Severability. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any rule of
law, or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to any party. Upon such determination that any term or
other provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement in accordance with
Section 8.4 so as to effect the original intent of the parties as closely as
possible in a mutually acceptable manner in order that the transactions
contemplated hereby may be consummated as originally contemplated to the fullest
extent possible.
SECTION 8.9 Governing Law. This Agreement shall be governed
and construed in accordance with the laws of the State of Michigan without
giving effect to the principles of conflicts of law thereof.
SECTION 8.10 Specific Performance. The parties hereto agree
that irreparable damage would occur in the event any material provision of this
Agreement were not performed in accordance with the terms hereof and that the
parties shall be entitled to the remedy of specific performance of the material
terms hereof, subject to Section 7.2, in addition to any other remedy at law or
equity.
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SECTION 8.11 Resolution of Disputes. If a dispute arises
between the parties relating to this Agreement, then the parties hereto (and
Buyer Designator, as a third party beneficiary of the provisions of this
Agreement) shall implement the procedures set forth in Section 8.11 of the
Preferred Stock Purchase Agreement, subject to the provisions thereof.
SECTION 8.12 Consent to Jurisdiction; Waiver of Jury Trial.
(a) Subject to Section 8.11, each of the parties hereto:
(i) consents to submit itself to the personal
jurisdiction of (A) the United States District Court for the Eastern
District of Michigan in the event any dispute arises out of this
Agreement or any of the transactions contemplated by this Agreement to
the extent such court would have jurisdiction with respect to such
dispute and (B) the Courts of the State of Michigan otherwise;
(ii) agrees that it will not attempt to deny or defeat
such personal jurisdiction or venue by motion or other request for
leave from any such court;
(iii) agrees that it will not bring any action relating
to this Agreement or any of the transactions contemplated by this
Agreement in any court other than such courts; and
(iv) agrees that service of process in any such action
or proceeding may be effected by mailing a copy thereof by registered
or certified mail (or any substantially similar form of mail), postage
prepaid, to such party at its address set forth in Section 8.1 or at
such other address of which
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the other party shall have been notified pursuant thereto; and
(v) agrees that nothing herein shall affect the right
to effect service of process in any other manner permitted by law or
shall limit the right to xxx in any other jurisdiction.
(B) EACH PARTY HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING IN
RELATION TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
[Continued on next page.]
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SECTION 8.13 Counterparts. This Agreement may be executed in
two or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when two or more counterparts have been
signed by each of the parties and delivered to the other party, it being
understood that all parties need not sign the same counterpart.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement with legal and binding effect as of the date first
above written.
XXXX X. XXXXX
/s/ Xxxx X. Xxxxx
---------------------------------
TEAM RENTAL GROUP, INC.
By:
------------------------------
Name:
Title:
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SECTION 8.13 Counterparts. This Agreement may be executed in
two or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when two or more counterparts have been
signed by each of the parties and delivered to the other party, it being
understood that all parties need not sign the same counterpart.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement with legal and binding effect as of the date first
above written.
XXXX X. XXXXX
/s/ Xxxx X. Xxxxx
---------------------------------
TEAM RENTAL GROUP, INC.
By: /s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title:Chairman &
Chief Executive
Officer
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