AMENDMENT NO. 1
TO AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 1 dated as of March 16, 1998 to the Agreement
and Plan of Merger, dated as of March 4, 1998, by and among Budget Group, Inc.
("Buyer") , BDG Corporation ("Sub"), Ryder TRS, Inc. (the "Company"), and
certain other parties (the "Merger Agreement"). Capitalized terms not otherwise
defined herein have the meanings given to them in the Merger Agreement.
WHEREAS, the parties to the Merger Agreement agreed to merge
Sub with and into the Company in accordance with the terms and conditions of the
Merger Agreement and Section 251 of the General Corporation Law of the State of
Delaware;
WHEREAS, the parties desire to amend certain provisions of the
Merger Agreement as more fully set forth herein;
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and in consideration
of the agreements herein, the parties hereto agree as follows:
Section 1.1(b) of the Merger Agreement is amended and restated
in its entirety to read as follows:
"(b) an aggregate number of shares of Buyer Class A
Common Stock issuable to all such holders equal to a minimum of
1,332,909 shares (the "Minimum Merger Shares") and a maximum of
3,605,946 shares (the "Maximum Merger Shares") (in each case less any
shares of Buyer Class A Common Stock issued to the holders of Options
pursuant to Section 3.7), with the precise number thereof determined as
set forth in Section 3.1 and subject to adjustment as provided in
Article III;"
Section 3.6(a) of the Merger Agreement is amended and restated
in its entirety to read as follows:
"(a) At the Effective Time, 1,818,430 shares of Buyer
Class A Common Stock (if the Maximum Merger Shares are issued), or
1,332,909 shares of Buyer Class A Common Stock (if the Minimum Merger
Shares are issued) (as the case may be, the "Escrow Holdback Shares")
shall be deposited in escrow with an escrow agent mutually agreed upon
by Buyer and the Company prior to the Closing (the "Holdback Escrow
Agent"), to be held and administered in accordance with the terms and
conditions of a Holdback Escrow Agreement, substantially in the form
attached hereto as Exhibit B (the "Holdback Escrow Agreement"), against
which Escrow Holdback Shares Buyer shall be entitled, in accordance
with the terms
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of the Holdback Escrow Agreement, to recover Damages (as defined in the
Holdback Escrow Agreement) that may be suffered by Buyer and that are
indemnifiable in accordance with the terms of the Holdback Escrow
Agreement (an "Escrow Claim Event")."
Section 3.5(b) (with respect to the heading thereto only) of
the Merger Agreement is amended to read as follows:
"(b) Determination of Warrant Shares."
The text contained in Section 3.5(b) shall not be modified
hereby and shall remain in full force and effect as written in the Merger
Agreement.
Section 2.1(a) of Exhibit E to the Merger Agreement is amended
and restated in its entirety to read as follows:
"(a) As soon as practicable, but in any event no
later than 15 days after the Effective Time, Buyer shall file a "shelf"
registration statement pursuant to Rule 415 under the Securities Act
(the "Registration Statement") with respect to the Registrable
Securities to be issued to the Holders pursuant to the Merger
Agreement. Buyer agrees that the Registration Statement will cover, in
the event the Minimum Merger Shares are issued in the Merger, 1,332,909
shares of Buyer Class A Common Stock or, in the event the Maximum
Merger Shares are issued in the Merger, 3,605,946 shares of Buyer Class
A Common Stock. In the event that the number of shares of Buyer Class A
Common Stock that are covered by the Registration Statement is less
than the number of Registrable Securities, Buyer shall, as promptly as
practicable after the issuance of Registrable Securities not covered by
the Registration Statement, file an additional "shelf" registration
statement and Buyer shall comply with all of its obligations set forth
in this Exhibit E with respect to such additional registration
statement to the same extent as if such registration statement were the
Registration Statement. Buyer shall use its commercially reasonable
efforts to (i) have the Registration Statement declared effective on or
before the Target Date, and (ii) keep the Registration Statement
continuously effective from the date such Registration Statement is
declared effective until the Termination Date."
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The Company represents and warrants to Buyer that this
Amendment has been duly executed and delivered by the Company, the form of this
Amendment has been approved by the Board of Directors of the Company and a
majority of the holders of Company Common Stock and no further corporate
authorization on the part
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of the Company is necessary to consummate the transactions contemplated by this
Amendment.
This Amendment constitutes a valid and binding agreement of
the Company and is enforceable against the Company in accordance with its terms,
except to the extent enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally and general equitable principles (whether considered
in a proceeding in equity or at law).
Buyer represents and warrants to the Company that this
Amendment has been duly executed and delivered by Buyer and Sub and, this
Amendment has been approved by Buyer's and Sub's Board of Directors and by a
majority of holders of Sub's common stock, and no further corporate
authorization on the part of Buyer or Sub is necessary to consummate the
transactions contemplated by this Amendment.
This Amendment constitutes a valid and binding agreement of
Buyer and Sub and is enforceable against Buyer and Sub in accordance with its
terms, except to the extent enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally and general equitable principles (whether
considered in a proceeding in equity or at law).
The Merger Agreement is hereby reaffirmed in all respects and
shall remain in full force and effect in accordance with its terms except as
amended or modified by this Amendment.
This Amendment may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
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IN WITNESS WHEREOF, the undersigned have executed this
Amendment as of the date first written above.
BUDGET GROUP, INC.
By: /s/ XXXXXXX XXXXXX
----------------------
Xxxxxxx Xxxxxx
Chief Executive Officer
BDG CORPORATION
By: /s/ XXXXX XXXXX
-------------------
Xxxxx Xxxxx
President
RYDER TRS, INC.
By: /s/ XXX XXXX
----------------
Xxx Xxxx
Chairman of the Board and
Chief Executive Officer
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QUESTOR PARTNERS FUND, L.P.,
By: Questor General Partner, L.P. its
general partner
By: Questor Principals, Inc., its
general partner
By: /s/ XXX XXXX
Xxx Xxxx
Managing Principal
QUESTOR SIDE-BY-SIDE PARTNERS, L.P.,
By: Questor Principals, Inc., its
general partner
By: /s/ XXX XXXX
Xxx Xxxx
Managing Principal
MADISON DEARBORN CAPITAL PARTNERS, L.P.
By: Madison Dearborn Partners, L.P. its
general partner
By: Madison Dearborn Partners, Inc., its
general partner
By: /s/ XXXXXX X. XXXXXXX
Xxxxxx X. Xxxxxxx
Vice President
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