Exhibit 10.30
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT (this "AGREEMENT") is entered into as of the
1st day of November, 2000 (the "CONTRIBUTION DATE") by and between XXXXXX TRAVEL
CENTERS, INC., a Nevada corporation (the "COMPANY"), and XXXXXX OUTDOOR
ADVERTISING & TRAVEL CENTERS INCORPORATED, a Nevada corporation ("XXXXXX").
RECITALS
X. XXXXXX owns and operates both travel centers and outdoor advertising
displays in the Southwestern United States. Under its travel centers business
segment, XXXXXX owns or leases and operates fifteen full-service travel centers
located along interstate highways in Arizona and New Mexico, which offer brand
name food and gasoline and a variety of Southwestern merchandise to the
traveling public (the "TRAVEL CENTERS BUSINESS").
B. The Company was formed by XXXXXX on August 8, 2000, as a Nevada
corporation and is a wholly owned subsidiary of XXXXXX.
X. XXXXXX wishes to contribute the Travel Centers Business to the Company
in exchange for which XXXXXX shall receive shares of common stock in the Company
subject to the terms and conditions of this Agreement.
X. XXXXXX and the Company intend to treat XXXXXX'x contribution of the
Travel Centers Business to the Company as a transfer of assets in return for
control of the Company in accordance with Section 351 of the Internal Revenue
Code of 1986, as amended (the "CODE").
X. XXXXXX is a party to an Agreement and Plan of Merger by and among
XXXXXX, Xxxxx Advertising Company ("LAMAR"), and Lamar Southwest Acquisition
Corporation, dated as of October 3, 2000 (the "MERGER AGREEMENT"), pursuant to
which Lamar Southwest Acquisition Corporation will merge with and into XXXXXX
(the "MERGER").
F. Immediately prior to consummation of the Merger, XXXXXX intends to
distribute its shares of the Company's common stock to XXXXXX'x shareholders
(the "SPIN-OFF").
In consideration of the foregoing and the mutual representations,
warranties, covenants and agreements herein contained, XXXXXX and the Company
agree as follows:
All capitalized terms used herein shall have the meanings ascribed to them
in Appendix A hereto.
SECTION 1
CONTRIBUTION OF ASSETS BY XXXXXX
1.1 CONTRIBUTION OF THE ASSETS.
(a) Subject to the terms and conditions of this Agreement, on the
Contribution Date, XXXXXX hereby assigns, transfers, and delivers to the
Company, as a contribution, and in an "as is, where is" condition, all of the
assets, properties, and business of every kind and description, wherever located
whether real, personal, or mixed, tangible or intangible, owned or held, that
are used primarily in the conduct of the Travel Centers Business by XXXXXX as
the same shall exist on the Contribution Date (collectively, the "ASSETS),
including without limitation, all assets and property shown on the Contributed
Business Balance Sheet, and all right, title, and interest of XXXXXX in, to, and
under:
(i) The real property listed and described in SCHEDULE 1.1(A)(I) (the
"REAL PROPERTY");
(ii) The outdoor advertising faces and underlying structures listed and
described in SCHEDULE 1.1(A)(II) (the "FACES");
(iii) The machinery, equipment, furniture, vehicles, and other tangible
property, other than Inventory (including, without limitation, maintenance and
operating supplies, fuel, and spare parts for such machinery and equipment),
used primarily in connection with the Travel Centers Business and listed and
described in SCHEDULE 1.1(A)(III) (collectively, the "EQUIPMENT");
(iv) The raw materials, finished goods, work-in-process, supplies, and
inventories, used or usable primarily in connection with the Travel Centers
Business (collectively, the "INVENTORY");
(v) Those patents, copyrights, trademarks, trade names, technology,
know-how, processes, trade secrets, inventions, proprietary data, formulae,
research and development data, computer software programs, and other intangible
property, and any applications for the same, used primarily in the Travel
Centers Business (and the use of and any right in and to the name "XXXXXX") and
described in SCHEDULE 1.1(A)(V) and all goodwill associated with such intangible
property (collectively, the "INTANGIBLE PROPERTY");
(vi) The leases of certain real property used or usable primarily in
connection with the Travel Centers Business described in SCHEDULE 1.1(A)(VI),
together with all fixtures, office equipment, furnishings, furniture, and other
tangible property located at such property and (collectively, the "LEASED
PROPERTY");
(vii) All of XXXXXX'x rights, claims, credits, causes of action, or
rights of setoff against third parties relating solely to the Assets and the
Travel Centers Business, including, without limitation, unliquidated rights
under manufacturers' and vendors' warranties (collectively, "CLAIMS");
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(viii) Those contracts, agreements, leases, licenses, and other
instruments, arrangements and commitments being assumed by the Company pursuant
to SECTION 1.3 of this Agreement (collectively, "RIGHTS");
(ix) All certificates of occupancy and other transferable licenses,
permits, registrations, authorizations, use agreements, orders, or approvals of
governmental or quasi-governmental agencies and authorities (whether federal,
state, local, municipal, or foreign) or private parties relating solely to the
construction, use, operation, or enjoyment of the Travel Centers Business
(collectively, "PERMITS");
(x) All accounts receivable arising out of sales in the ordinary and
usual course of the operation of the Travel Centers Business prior to the close
of business on the Contribution Date (collectively, "RECEIVABLES");
(xi) All transferable bonds or deposits made by XXXXXX or its
predecessors in title (or its agents) with any governmental agency or authority
or with any utility company or third party relating solely to the construction,
use, operation, or enjoyment of the Assets;
(xii) All prepaid rentals and other prepaid expenses for goods or
services arising from payments made by XXXXXX prior to the close of business on
the Contribution Date in the ordinary and usual course of the operation of the
Travel Centers Business and related solely to the Assets;
(xiii) Originals or copies of all books, records, files, and papers,
whether in hard copy or computer format, used in the Travel Centers Business,
including without limitation, engineering information, manuals and data, sales
and advertising materials, sales and purchase correspondence, lists of present
and former suppliers, and personnel and employment records and, with respect to
information relating to any Tax, only information that is necessary for the
preparation of Tax returns to be filed by the Company after the Contribution
Date or the determination of the tax basis of the Assets (collectively, "FILES
AND RECORDS");
(xiv) All lists of present, and, to the extent available, future
customers of the Travel Center Business and goodwill associated with the Assets;
and
(xv) All cash and other monetary assets attributable solely to the
Travel Center Business and all bank accounts listed on Schedule 1.1(xv).
1.2 CONVEYANCE INSTRUMENTS. In order to effectuate the contribution of the
Assets and the assumption of the Assumed Liabilities by the Company, XXXXXX and
the Company have, or will hereafter, execute and deliver, or cause to be
executed and delivered, all such documents or instruments of assignment,
transfer, or conveyance, in each case dated as of the Contribution Date
(collectively, the "CONVEYANCE INSTRUMENTS"), necessary or appropriate to vest
in or confirm title to the Assets to the Company.
1.3 ASSUMED LIABILITIES. Subject to the terms and conditions of this
Agreement and in reliance on the representations, warranties, covenants and
agreements of the parties contained herein, the Company hereby assumes and
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agrees to pay, perform, discharge and fulfill the following liabilities and
obligations (collectively, the "Assumed Liabilities"):
(i) all of the liabilities and obligations set forth on Schedule 1.3,
and
(ii) any and all liabilities and obligations, whether known or unknown,
absolute or contingent, arising before, on or after the Contribution Date and
directly relating to (A) any of the Assets or (B) any act, event or occurrence
involving the ownership or use of the Assets or the conduct of the Travel
Centers Business by either XXXXXX or the Company.
1.4 EXCLUDED LIABILITIES. Notwithstanding any provision of this Agreement
or any Conveyance Instrument to the contrary, the Company is assuming only the
Assumed Liabilities and is not assuming any other liability or obligation of
XXXXXX (or any predecessor owner of all or part of its business and assets) of
whatever nature whether presently in existence or arising hereafter, and all
such other liabilities and obligations shall be retained by and remain
liabilities of XXXXXX (all of such liabilities and obligations not being assumed
hereinafter referred to as the "EXCLUDED LIABILITIES").
SECTION 2
EVENTS OCCURRING ON THE CONTRIBUTION DATE
2.1 DELIVERIES BY XXXXXX AND THE COMPANY. Contemporaneously with the
execution hereof, and subject to Section 4.1(a), each of XXXXXX and the Company
has duly executed and delivered to the other the following:
(a) The Conveyance Instruments to effect the contribution of the Assets
to the Company and the assumption of the Assumed Liabilities by the Company;
(b) A copy of the resolutions of its Board of Directors, certified by
its Secretary, authorizing or ratifying its execution and delivery of this
Agreement, and the consummation of the transactions contemplated hereby and
thereby;
(c) A copy of its Articles of Incorporation certified as of a date
within five (5) days of the Contribution Date by the Secretary of State (or
equivalent official) of Nevada;
(d) A certificate from the Secretary of State (or equivalent official)
of Nevada as to its good standing in Nevada certified as of a date within five
(5) days of the Contribution Date; and
(e) The executed counterpart copies of all consents, approvals,
authorizations, and Permits, if any, from third parties referred to in SECTION
4.1(A) hereof.
2.2 EFFECT OF CONTRIBUTIONS. In exchange for the transfer of the Assets to,
and assumption of the Assumed Liabilities by, the Company, XXXXXX shall receive
4,582,348 shares of the common stock of the Company (equal to the total number
of outstanding shares of common stock of Xxxxxx, on the Contribution Date).
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SECTION 3
REPRESENTATIONS AND WARRANTIES
3.1 REPRESENTATIONS AND WARRANTIES OF XXXXXX
(a) ORGANIZATION. XXXXXX is a corporation which is duly organized,
validly existing, and in good standing under the laws of Nevada, with the
corporate power and authority to own, lease, and operate its properties and to
carry on its business as now being conducted. The copies of the Articles of
Incorporation and all amendments thereto of XXXXXX, as certified by the
Secretary of State (or equivalent official) of Nevada, and the Bylaws, as
amended to date, of XXXXXX, as certified by its Secretary and delivered to the
Company, are true, complete, and correct copies of the Articles of Incorporation
and Bylaws, as amended and presently in effect, of XXXXXX.
(b) AUTHORITY. XXXXXX has the corporate power and authority to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery by XXXXXX of this Agreement, and the
consummation of the transactions contemplated hereby, have been duly authorized
by the Board of Directors of XXXXXX; no other corporate proceedings on the part
of XXXXXX or any other person or entity, whether pursuant to the Articles of
Incorporation or Bylaws of XXXXXX or by law or otherwise, are necessary to
authorize XXXXXX to enter into this Agreement or to consummate the transactions
contemplated hereby; and this Agreement is the legal, valid, and binding
obligation of XXXXXX.
(c) NO VIOLATIONS. Neither the execution nor the delivery of this
Agreement nor the consummation of the transactions contemplated hereby:
(i) Requires any filing or registration with, or consent,
authorization, approval, or permit of, any governmental or regulatory authority
on the part of XXXXXX;
(ii) Violates or will violate (A) any order, writ, injunction,
judgment, decree, or award of any court or governmental or regulatory authority,
or (B) to the knowledge of XXXXXX, violates or will violate any law of any
governmental or regulatory authority to which XXXXXX or any of its properties or
assets are subject;
(iii) Violates or will violate, or conflicts with or will conflict
with, any provision of, or constitutes a default under, the Articles of
Incorporation or Bylaws of XXXXXX; or
(iv) Except as set forth on Schedule 3.1(c), violates or breaches
or constitutes a default (or an event which, with notice or lapse of time or
both, would constitute a default) under, or give rise to a right to terminate,
any mortgage, contract, agreement, deed of trust, license, lease, or other
instrument, arrangement, commitment, obligation, understanding, or restriction
of any kind to which XXXXXX is a party or by which its properties may be bound,
or (ii) will cause, or give any person grounds to cause, to be accelerated (with
notice or lapse of time or both) the maturity of, or will increase, any
liability or obligation of XXXXXX which violation, breach, default, liability,
or obligation, individually or in the aggregate, is or would be material to the
business or financial condition of XXXXXX or the Travel Centers Business taken
as a whole.
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3.2 REPRESENTATION AND WARRANTIES OF THE COMPANY
(a) ORGANIZATION. The Company is a corporation which is duly organized,
validly existing, and in good standing under the laws of Nevada, with the
corporate power and authority to own, lease, and operate its properties and to
carry on its business as now being conducted. The copies of the Articles of
Incorporation and all amendments thereto of the Company, as certified by the
Secretary of State (or equivalent official) of Nevada, and the Bylaws, as
amended to date, of the Company, as certified by its Secretary and delivered to
the Company, are true, complete, and correct copies of the Articles of
Incorporation and Bylaws, as amended and presently in effect, of the Company.
(b) AUTHORITY. The Company has the corporate power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery by the Company of this
Agreement, and the consummation of the transactions contemplated hereby, have
been duly authorized by the Board of Directors of the Company; no other
corporate proceedings on the part of the Company or any other person or entity,
whether pursuant to the Articles of Incorporation or Bylaws of the Company or by
law or otherwise, are necessary to authorize the Company to enter into this
Agreement or to consummate the transactions contemplated hereby; and this
Agreement is the legal, valid, and binding obligation of the Company.
(c) NO VIOLATIONS. Neither the execution nor the delivery of this
Agreement nor the consummation of the transactions contemplated hereby:
(i) Requires any filing or registration with, or consent,
authorization, approval, or permit of, any governmental or regulatory authority
on the part of the Company;
(ii) Violates or will violate (A) any order, writ, injunction,
judgment, decree, or award of any court or governmental or regulatory authority,
or (B) to the knowledge of the Company, violates or will violate any law of any
governmental or regulatory authority to which the Company or any of its
properties or assets are subject;
(iii) Violates or will violate, or conflicts with or will conflict
with, any provision of, or constitutes a default under, the Articles of
Incorporation or Bylaws of the Company; or
(iv) Except as set forth on Schedule 3.2(c), violates or breaches
or constitutes a default (or an event which, with notice or lapse of time or
both, would constitute a default) under, or give rise to a right to terminate,
any mortgage, contract, agreement, deed of trust, license, lease, or other
instrument, arrangement, commitment, obligation, understanding, or restriction
of any kind to which the Company is a party or by which its properties may be
bound, or (ii) will cause, or give any person grounds to cause, to be
accelerated (with notice or lapse of time or both) the maturity of, or will
increase, any liability or obligation of the Company which violation, breach,
default, liability, or obligation, individually or in the aggregate, is or would
be material to the business or financial condition of the Company or the Travel
Centers Business taken as a whole.
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SECTION 4
COVENANTS OF THE PARTIES
4.1 CONSENTS, PERMITS, ETC.
(a) XXXXXX (i) has maintained in full force and effect and renewed,
when required, all Permits, and (ii) has obtained, or will obtain at the
earliest practicable date hereafter, all consents, approvals, governmental
filings, authorizations, and Permits necessary for (A) the consummation of the
transactions contemplated by this Agreement, and (B) the continued conduct of
the Travel Centers Business by the Company after the Contribution Date as it is
presently conducted by XXXXXX, and delivers herewith, or will deliver when
obtained hereafter, to the Company copies of each such consent, approval,
governmental filing, authorization, and Permit.
(b) To the extent that any of the contracts, leases, agreements,
Permits, plans, commitments, purchase orders, or other binding arrangements
relating to the Assets cannot be assumed by or assigned to the Company without
the consent of another party, and such consent has not been obtained as of the
Contribution Date, each of the parties hereto agrees to cooperate with the other
to obtain such consents. XXXXXX will promptly pay to the Company when received
all monies received by XXXXXX under any such agreements.
4.2 EMPLOYEE MATTERS.
(a) Schedule 4.2 sets forth a list of the name, title, current annual
compensation rate (including bonus and commissions) of each employee engaged
primarily in the operation of the Xxxxxx Travel Centers Business (the "Travel
Centers Business Employees") as well as any employment, consulting, employee
confidentiality or similar agreements of each Travel Centers Business Employee.
(b) The Company shall offer employment with the Company to each of the
Travel Centers Business Employees on the same terms and conditions of employment
as they currently enjoy under Xxxxxx. All such Travel Centers Business Employees
who are offered employment by the Company and who accept such employment shall
be collectively referred to as the "Transferred Employees."
(c) Except as specifically provided for in this Agreement, the Company
covenants and agrees to assume all responsibility and liability with respect to
the accrued benefits (including any claims with respect to any medical benefits
that were incurred but not reported prior to the Contribution Date) of the
Travel Centers Business Employees (including any beneficiary or dependent
thereof) under XXXXXX employee welfare benefit plans, employee pension benefit
plans, and employee fringe benefit arrangements and any other liabilities or
obligations relating to XXXXXX employee benefits or compensation (including
accrued vacation and sick pay, if any), for periods ending on or prior to the
Contribution Date.
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(d) On the Contribution Date, XXXXXX and the Company will enter into an
amendment (the "401(K) AMENDMENT") to XXXXXX'x 401(k) Plan (the "PLAN") whereby
the Company will (i) expressly assume the obligation to maintain the Plan as
successor employer, (ii) as soon as practicable after the closing of the Merger,
cause the assets held in the Plan accounts of employees who remain employed by
XXXXXX to be transferred from the Plan to The Xxxxx Savings and Profit Sharing
Plan Trust, (iii) report the transfer of Plan assets to any employees and
regulatory authorities as required by Applicable Law. The Company will execute
any and all documents as needed for the 401(k) Amendment to comply with IRS
requirements and will provide XXXXXX with copies of any IRS filings. The Company
will provide a list of all participating employees to XXXXXX at Closing.
Contemporaneously with the closing of the Merger, XXXXXX will execute and
deliver a participation termination to the administrator of the Plan terminating
its participation in the Plan.
SECTION 5
SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION
5.1 SURVIVAL. The representations, and warranties of XXXXXX contained
herein or in any certificate or other writing delivered pursuant hereto or in
connection herewith will not survive the Closing. The representations,
warranties and covenants of the Company contained herein and the obligations of
the Company arising under this Section 5, will survive indefinitely.
5.2 INDEMNIFICATION BY THE COMPANY. (a) The Company and its successors and
assigns, jointly and severally, hereby agree to indemnify and hold harmless
XXXXXX, and upon consummation of the Merger, Lamar, and each of XXXXXX'x and
Lamar's directors, officers, shareholders, employees, Affiliates, successors and
assigns (each a "XXXXXX INDEMNITEE") and will reimburse the Xxxxxx Indemnitees
for, from and against:
(a) any and all losses, liabilities, claims, demands, penalties, fines,
settlements, damages, or expenses (including, without limitation, interest,
penalties, costs of preparation and investigation, and the reasonable fees,
disbursements and expenses of attorneys, accountants and professional advisors)
(collectively, "LOSSES") incurred by any of the Xxxxxx Indemnitees:
(i) arising under federal, state or local environmental laws and
arising out of or in connection with the Travel Center Business or the ownership
or operation of any of the Assets or Assumed Liabilities;
(ii) resulting from any labor or employment dispute arising out of
or in connection with the operation of the Travel Center Business or otherwise
involving a Travel Centers Business Employee; and
(iii) any attempt (whether or not successful) by any Person to
cause or require Xxxxxx to discharge or pay any Assumed Liability, or otherwise
arising out of or relating to any Assumed Liability.
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(b) any and all tax liabilities for which the Company provides
indemnification to XXXXXX as set forth in the Tax Agreement between the Company
and XXXXXX, dated as of the date of this Agreement and attached hereto as
EXHIBIT A.
5.3 CONTROL OF LITIGATION.
(a) The XXXXXX Indemnitees agree to give prompt notice to the Company
of the assertion of any third party claim, or the commencement of any third
party suit, action, or proceeding in respect of which indemnity may be sought
under SECTION 5.2 of this Agreement and of any Loss which any such Indemnitee
deems to be reimbursable under SECTION 5.2 of this Agreement (specifying with
reasonable particularity the basis therefore) and will give the Company such
information with respect thereto as the Company may reasonably request;
PROVIDED, HOWEVER, that the failure to give such notice by the Indemnitee shall
not abrogate Indemnitee's rights hereunder unless such failure materially
impairs the rights or ability of the Company to defend the suit, action or
proceeding or to otherwise provide indemnification to the Indemnitee. The
Company may, at its own expense, participate in and, upon notice to such
Indemnitee, assume the defense of any such suit, action or proceeding, PROVIDED
that the Company's counsel is reasonably satisfactory to such Indemnitee. The
Company shall thereafter consult with such Indemnitee upon such Indemnitee's
reasonable request for such consultation from time to time with respect to such
suit, action, or proceeding, and the Company shall not, without such
Indemnitee's consent, which consent shall not be unreasonably withheld, settle
or compromise any such suit, action or claim. If the Company assumes such
defense, such Indemnitees shall have the right (but not the duty) to participate
in the defense thereof and to employ counsel, at their own expense, separate
from the counsel employed by the Company. In the event that the Company, within
ten days after the notice of any such action or claim, does not assume the
defense thereof, the Indemnitee will have the right to undertake the defense,
compromise or settlement of any action, claim or proceeding for the account of
the Company. For any period during which the Company has not assumed the defense
thereof, the Company shall be liable for the fees and expenses of counsel
employed by any Indemnitee. If the Indemnitees conduct the defense thereof, the
Indemnitees shall consult with the Company upon the Company's reasonable request
for such consultation with respect to such suit, action or proceeding and the
Indemnitees shall not, without the Company's consent, which consent shall not be
unreasonably withheld, settle or compromise any such suit, action or claim.
Whether or not the Company chooses to defend or prosecute any claim, all of the
parties hereto shall cooperate in the defense or prosecution thereof.
(b) The Company shall not be liable under SECTION 5.2 hereof with
respect to any Loss resulting from a claim or demand the defense of which the
Company was not offered the opportunity to assume to the extent the Company's
liability under SECTION 5.2 hereof is materially prejudiced as a result thereof.
No investigation by any XXXXXX Indemnitee or XXXXXX Indemnitee Affiliate prior
to the Contribution Date shall relieve the Company of any liability hereunder.
5.4 TRANSFER TAXES. The Company shall pay, or cause to be paid, all Taxes
or recording fees imposed on any transfers by XXXXXX of real property and
tangible and intangible personal property, including without limitation
Intellectual Property, applicable to the transfers of the Assets contemplated by
this Agreement and all sales and use Taxes applicable to transfers by XXXXXX of
the Assets contemplated by this Agreement.
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SECTION 6
ARBITRATION
If any dispute arises out of this Agreement, the Company and XXXXXX shall,
upon the request of either party, attend a meeting in Baton Rouge, Louisiana
(or, if the Merger has not been consummated, in Albuquerque, New Mexico) to
attempt a resolution of the dispute. If the Company and XXXXXX fail to resolve
all differences at the end of the meeting, they will jointly request the
American Arbitration Association to appoint an arbitrator in Baton Rouge,
Louisiana (or, if the Merger has not been consummated, in Albuquerque, New
Mexico) to settle the dispute in accordance with the Commercial Arbitration
Rules of the American Arbitration Association then in effect. If either party
fails to join in making a joint request for arbitration, then the other party
may make the request unilaterally after giving ten days notice to the party
refusing to join in the request for arbitration. The award rendered by the
arbitrator(s) shall be final and judgment upon the award rendered by the
arbitrator(s) may be entered upon it in any court having jurisdiction thereof.
The arbitrator(s) shall possess the powers to issue mandatory orders and
restraining orders in connection with such arbitration. The expenses of the
arbitration shall be borne by the losing party unless otherwise allocated by the
arbitrator(s); PROVIDED, HOWEVER, that if the dispute is resolved by agreement
of the Company and XXXXXX following the designation of an arbitrator, the
Company and XXXXXX each will pay one-half of any costs and expenses of the
arbitrator already designated. The agreement to arbitrate shall be specifically
enforceable under the prevailing arbitration law. During the continuance of any
arbitration proceedings, the parties shall continue to perform their respective
obligations under this Agreement.
SECTION 7
MISCELLANEOUS PROVISIONS
7.1 AMENDMENT AND MODIFICATION. This Agreement may be amended, modified or
supplemented only by written agreement of the parties hereto.
7.2 WAIVER OF COMPLIANCE; CONSENTS. Any failure of a party to comply with
any obligation, covenant, agreement or condition herein may be waived by the
other party; PROVIDED, HOWEVER, that any such waiver may be made only by a
written instrument signed by the party granting such waiver, but such waiver or
failure to insist upon strict compliance with such obligation, covenant,
agreement or condition shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure. Whenever this Agreement requests or
permits consent by or on behalf of any party hereto, such consent shall be given
in writing in a manner consistent with the requirements for a waiver of
compliance as set forth in this SECTION 7.2, with appropriate notice in
accordance with SECTION 7.7 of this Agreement.
7.3 ASSIGNMENT. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. Any party may assign any of its rights
hereunder but only with the consent of the other party hereto, which consent
shall not be unreasonably withheld, but no such assignment shall relieve it of
its obligations hereunder. Nothing in this Agreement, expressed or implied, is
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intended or shall be construed to confer upon any person other than the parties,
any successors and permitted assigns, any rights, remedy, or claim under or by
reason of this Agreement or any provisions herein contained.
7.4 FURTHER ASSURANCES. From time to time, at the request of XXXXXX or the
Company and without further consideration, each party, at its own expense, will
execute and deliver such other documents, and take such other action, as XXXXXX
or the Company may reasonably request in order to consummate more effectively
the transactions contemplated hereby. XXXXXX hereby constitutes and appoints,
effective as of the Contribution Date, the Company and its successors and
permitted assigns as the true and lawful attorney of XXXXXX with full power of
substitution in the name of the Company or in the name of XXXXXX, but for the
benefit of the Company, to collect for the account of the Company any items of
Assets and to institute and prosecute all proceedings which the Company may in
its reasonable discretion deem proper in order to assert or enforce any right,
title or interest in, to or under the Assets, and to defend or compromise any
and all actions, suits, or proceedings in respect of the Assets. The Company
shall be entitled to retain for its own account any amounts collected pursuant
to the foregoing powers, including any amounts payable as interest in respect
thereof. The Company shall, in each instance, give notice to XXXXXX of its
exercise of the power of attorney granted to it under this Section 7.4.
7.5 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the Laws of the State of New Mexico (without regard to its
conflicts of law doctrines).
7.6 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument and shall become a binding
Agreement when one or more of the counterparts have been signed by each of the
parties and delivered to the other party.
7.7 NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered by hand or
mailed by registered or certified mail (return receipt requested) to the parties
at the following addresses (or at such other address for a party as shall be
specified by like notice):
Prior to the Merger
If to XXXXXX: XXXXXX Outdoor Advertising & Travel Centers,
Incorporated
000 Xxxxxxxxx XX
Xxxxxxxxxxx, XX 00000
Attention: President
with a copy to: Squire, Xxxxxxx & Xxxxxxx L.L.P.
00 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxxxxxx Xxxxxxx
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After the Merger
If to XXXXXX Xxxxx Advertising Company
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxx Xxxxx, Xxxxxxxxx 00000
Attn: Xxxxx X. XxXxxxxx
Facsimile transmission no.: (000) 000-0000
With a copy to: Jones, Walker, Xxxxxxxx, Xxxxxxxxx Xxxxxxx
& Xxxxxxx, L.L.P.
Xxxxx Xxxxx, Xxxx Xxxxxx Xxxxx
0000 Xxxxxx Xxxxx Xxxxxxxxx
Xxxxx Xxxxx, Xxxxxxxxx 00000-0000
Attn: Xxxx X. Xxxxxxx
If to the Company: Xxxxxx Travel Centers, Inc.
000 Xxxxxxxxx XX
Xxxxxxxxxxx, XX 00000
Attention: President
with a copy to: Squire, Xxxxxxx & Xxxxxxx L.L.P.
00 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxxxxxx Xxxxxxx
7.8 SPECIFIC PERFORMANCE. Each of the parties acknowledge that money
damages would not be a sufficient remedy for any breach of this Agreement and
that irreparable harm would result if this Agreement were not specifically
enforced. Therefore, the rights and obligations of the parties under this
Agreement shall be enforceable by a decree of specific performance issued by any
court of competent jurisdiction, and appropriate injunctive relief may be
applied for and granted in connection therewith. A party's right to specific
performance shall be in addition to all other legal or equitable remedies
available to such party.
7.9 HEADINGS. The article and section headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
7.10 ENTIRE AGREEMENT. This Agreement, the Tax Agreement, and the exhibits,
schedules and other documents and instruments referred to herein and therein,
embody the entire agreement and understanding of the parties hereto in respect
of the subject matter contained herein and therein. This Agreement supersedes
all prior agreements and understandings between the parties with respect to such
subject matter.
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7.11 SEVERABILITY. If any one or more provisions contained in this
Agreement shall, for any reason, be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provision of this Agreement, but this Agreement shall be construed as
if such invalid, illegal or unenforceable provision had never been contained
herein.
7.12 EXHIBITS. All Exhibits and Schedules attached hereto are hereby
incorporated in and made a part as if set forth in full herein.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
XXXXXX OUTDOOR ADVERTISING & TRAVEL CENTERS,
INCORPORATED, a Nevada corporation
/s/ Xxxxxxx X. Xxxxxx
---------------------------------------------
By: Xxxxxxx X. Xxxxxx
Title: President and Chief Executive Officer
XXXXXX TRAVEL CENTERS, INC., a Nevada
corporation
/s/ Xxxxxxx X. Xxxxxx
---------------------------------------------
By: Xxxxxxx X. Xxxxxx
Its: President and Chief Executive Officer
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APPENDIX A
DEFINITIONS
For the purpose of this Agreement, the following terms have the following
meanings:
"AFFILIATE" means, with respect to any person, any person directly or
indirectly controlling, controlled by, or under common control with such other
person .
"ASSETS" has the meaning ascribed to it in Section 1.1(a) of the Agreement.
"ASSUMED LIABILITIES" has the meaning ascribed to it in Section 1.3 of the
Agreement.
"CLAIMS" means all rights, claims, credits, causes of action, or rights of
setoff against third parties relating solely to the Assets, including, without
limitation, unliquidated rights under manufacturers' and vendors' warranties and
the Travel Centers Business.
"CODE" means the Internal Revenue Code of 1986, as amended.
"CONTRIBUTION DATE" means the date on which XXXXXX contributes the Assets
to the Company and the Company assumes the Assumed Liabilities under the
Agreement.
"CONTRIBUTED BUSINESS BALANCE SHEET" means the balance sheet of XXXXXX,
setting forth the assets, liabilities and shareholder's equity of the Travel
Centers Business, dated as of the Contribution Date.
"CONVEYANCE INSTRUMENTS" means all documents or instruments of assignment,
transfer, or conveyance, in each case dated as of the Contribution Date as the
parties and their respective counsel shall reasonably deem necessary or
appropriate to vest in or confirm title to the Assets to the Company.
"EQUIPMENT" means the machinery, equipment, furniture, vehicles, and other
tangible property (including, without limitation, maintenance and operating
supplies, fuel, and spare parts for such machinery and equipment) used in
connection with the Travel Centers Business.
"EXCLUDED LIABILITIES" means all liabilities and obligations of XXXXXX (or
any predecessor owner of all or part of its business and assets) of whatever
nature whether presently in existence or arising after the Contribution date,
that are not Assumed Liabilities.
"FACES" means the outdoor advertising faces and underlying structures owned
or leased by XXXXXX on the Contribution Date and used solely in the Travel
Centers Business.
"FILES AND RECORDS" means originals or copies of all books, records, files,
and papers, whether in hard copy or computer format, used in the Travel Centers
Business, including without limitation, engineering information, manuals and
data, sales and advertising materials, sales and purchase correspondence, lists
of present and former suppliers, and personnel and employment records and, with
respect to information relating to any Tax, only information that is necessary
for the preparation of Tax returns to be filed by the Company after the
Contribution Date or the determination of the tax basis of the Assets.
"INDEMNITOR" means the Company, as obligated pursuant to Section 5.2.
"INTANGIBLE PROPERTY" means those patents, copyrights, trademarks, trade
names, technology, know-how, processes, trade secrets, inventions, proprietary
data, formulae, research and development data, computer software programs, and
other intangible property, and any applications for the same, used primarily in
the Travel Centers Business (including use of and any right in and to the name
"XXXXXX") and all goodwill associated with such intangible property.
"INVENTORY" means the raw materials, finished goods, work-in-process,
supplies, and inventories, with respect to the Travel Centers Business.
"LEASED PROPERTY" means real property leased by XXXXXX and used primarily
in the Travel Centers Business, together with all fixtures, office equipment,
furnishings, furniture, and other tangible property located at such property.
"LEASES" means all leases for the Leased Properties.
"MERGER AGREEMENT" means the Agreement and Plan of Merger by and among
XXXXXX, Xxxxx Advertising Company, and Lamar Southwest Acquisition Corporation,
dated as of October 3, 2000.
"PERMITS" means all certificates of occupancy and other transferable
licenses, permits, registrations, authorizations, use agreements, orders, or
approvals of governmental or quasi-governmental agencies and authorities
(whether federal, state, local, municipal, or foreign) or private parties
relating solely to the construction, use, operation, or enjoyment of the Travel
Centers Business.
"PERSON" or "PERSON" means an individual, firm, corporation, general or
limited partnership, limited liability company, limited liability partnership,
joint venture, trust, governmental authority or body, association,
unincorporated organization or other entity.
"REAL PROPERTY" means the 15 travel centers owned by XXXXXX and the real
property listed and described in SCHEDULE 1.1(A)(I)
"RECEIVABLES" means all accounts receivable arising out of sales in the
ordinary and usual course of the operation of the Travel Centers Business prior
to the close of business on the Contribution Date.
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"RIGHTS" means those contracts, agreements, leases, licenses, and other
instruments, arrangements and commitments being assumed by the Company with
respect to the Assets pursuant to SECTION 1.3 of this Agreement.
"SPIN-OFF" means the distribution by XXXXXX of its shares of the Company's
common stock to the shareholders of XXXXXX.
"TAX" means (i) any net income, alternative or add-on minimum tax, gross
income, gross receipts, sales, use, ad valorem, franchise, capital, paid-up
capital, profits, greenmail, license, withholding, payroll, employment, excise,
severance, stamp, occupation, premium, property, environmental or windfall
profit tax, custom, duty, or other tax, governmental fee, or other like
assessment or charge of any kind whatsoever, together with any interest or any
penalty, addition to tax, or additional amount imposed by any governmental
authority responsible for the imposition of any such tax (domestic or foreign),
and (ii) liability for the payment of any amounts of the type described in (i)
as a result of any express obligations to indemnify any other person.
"TAX RETURN" i.e. means any return, declaration, report, claim for refund,
or information return or statement relating to any Tax, including any schedule
or attachment thereto, and including any amendment thereof.
"TRAVEL CENTERS BUSINESS EMPLOYEES" means each employee engaged primarily
in the operation of the Xxxxxx Travel Centers Business and set forth on Schedule
4.2.
"TRANSFERRED EMPLOYEES" means all Travel Centers Business Employees who are
offered employment by the Company and who accept such employment.
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