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EXHIBIT 2.1
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER, dated as of
January 8, 1998 (the "First Amendment"), by and between ALRENCO, INC., an
Indiana corporation ("Alrenco"), and RTO, INC., a Delaware corporation ("RTO").
WHEREAS, pursuant to the terms of that certain Agreement and Plan of
Merger, dated September 28, 1997, by and between Alrenco and RTO (the "Merger
Agreement"), RTO will merge with and into Alrenco, with Alrenco as the surviving
corporation (the "Surviving Corporation"), and the stockholders of RTO will
receive shares of common stock of Alrenco at the ratio of 89.795 shares of
common stock of Alrenco for each share of common stock of RTO; and
WHEREAS, the parties wish to amend the Merger Agreement to modify
certain provisions;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Section 5.2(ii) of the Merger Agreement is hereby amended by
deleting the words "employee stock options to acquire 11,333 Shares" and
substituting in lieu thereof the words "employee stock options to acquire 11,236
Shares".
2. Section 9.2(a) of the Merger Agreement is hereby amended by deleting
the words "The Merger is not consummated on or before January 31, 1998" and
substituting in lieu thereof the words "The Merger is not consummated on or
before February 28, 1998".
3. Section 10.7(b) of the Merger Agreement is hereby amended by
deleting the words "IN THE EVENT (BUT ONLY IN THE EVENT) SUCH COURT DOES NOT
HAVE SUBJECT MATTER JURISDICTION OVER SUCH ACTION, SUIT OR PROCEEDING, IN THE
COURTS OF THE STATE OF INDIANA SITTING IN THE CITY OF JEFFERSONVILLE" and
substituting in lieu thereof the words "IN THE EVENT (BUT ONLY IN THE EVENT)
SUCH COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION OVER SUCH ACTION, SUIT OR
PROCEEDING, IN THE COURTS OF THE STATE OF INDIANA SITTING IN THE CITY OF NEW
ALBANY".
4. Exhibit A of the Merger Agreement is hereby amended by deleting such
Exhibit A in its entirety and substituting in lieu thereof Exhibit A to this
First Amendment.
5. Except as amended hereby, the terms, conditions, covenants,
agreements, representations and warranties contained in the Merger Agreement
shall remain unaffected hereby and shall continue in full force and effect.
6. This First Amendment may be executed and delivered (including by
facsimile transmission) in one or more counterparts, and by the different
parties hereto in separate counterparts, each of which when executed and
delivered shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be executed as of the date first written above by their respective officers
thereunto duly authorized.
ALRENCO, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Chairman of the Board and President
RTO, INC.
By: /s/ Xxxxx X. Xxxxx, Xx.
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Name: Xxxxx X. Xxxxx, Xx.
Title: President and Chief Executive Officer
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EXHIBIT A
AMENDED AND RESTATED
ARTICLES OF INCORPORATION OF
ALRENCO, INC.
ARTICLE I
NAME
The name of the corporation is Alrenco, Inc. (the "CORPORATION").
ARTICLE II
REGISTERED OFFICE AND AGENT
The address of the Corporation's registered office in the State of
Indiana is 0000 Xxxx Xxxx Xxxxxx, Xxx Xxxxxx, Xxxxxxx 00000. The name of its
registered agent whose business office is identical with the registered office
is Xxxxx X. Xxxxx, Xx.
ARTICLE III
PURPOSES AND POWERS
The purpose of the Corporation is to transact any and all lawful
business for which corporations may be incorporated under the Indiana Business
Corporation Law, Indiana Code ss. 23-1-17 et seq. (such act, as amended from
time to time, and its successors are hereinafter referred to as the "ACT"). The
Corporation shall have the power to do all acts allowed under the Act.
ARTICLE IV
CAPITAL STOCK
SECTION 4.1 AUTHORIZED STOCK. The total number of shares of capital
stock that may be issued by the Corporation is 85,000,000, consisting of (i)
75,000,000 shares of Common Stock, no par value ("Common Stock"), and (ii)
10,000,000 shares of Preferred Stock ("PREFERRED STOCK").
SECTION 4.2 COMMON STOCK PROVISIONS. Subject to the provisions of the
Act and the preferences of any Preferred Stock then outstanding, the holders of
the Common Stock shall be entitled to receive dividends at such times and in
such amounts as may be determined by the Board of Directors of the Corporation.
The holders of the Common Stock shall have one vote for each share on each
matter submitted to a vote of the shareholders of the Corporation. In the event
of any
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liquidation, dissolution or winding up of the Corporation, whether voluntary or
involuntary, after payment or provision for payment of the debts and other
liabilities of the Corporation and the preferential amounts to which the holders
of any Preferred Stock may be entitled, the holders of the Common Stock shall be
entitled to share ratably in the remaining assets of the Corporation.
SECTION 4.3 PREFERRED STOCK. The Board of Directors may determine the
preferences, limitations and relative rights, to the extent permitted by the
Act, of any series of shares of Preferred Stock before the issuance of any
shares of that series. Each series shall be appropriately designated by a
distinguishing designation prior to the issuance of any shares thereof. The
shares of Preferred Stock of any series shall have preferences, limitations and
relative rights identical with those of other shares of the same series.
SECTION 4.4 NO CUMULATIVE VOTING. Cumulative voting of shares of any
capital stock having voting rights is prohibited.
ARTICLE V
Preemptive Rights
No shareholder of the Corporation shall by reason of holding shares of
any class of capital stock of the Corporation have any preemptive or
preferential right to acquire or subscribe for any additional, unissued or
treasury shares (whether now or hereafter acquired) of any class of capital
stock of the Corporation now or hereafter to be authorized, or any notes,
debentures, bonds or other securities convertible into or carrying any right,
option or warrant to subscribe for or acquire shares of any class of capital
stock of the Corporation now or hereafter to be authorized, whether or not the
issuance of any such shares, or such notes, debentures, bonds or other
securities, would adversely affect the dividends or voting or other rights of
such stockholder, and the Board of Directors of the Corporation may issue or
authorize the issuance of shares of any class of capital stock of the
Corporation, or any notes, debentures, bonds or other securities convertible
into or carrying rights, options or warrants to subscribe for or acquire shares
of any class of capital stock of the Corporation, without offering any such
shares of any such class, either in whole or in part, to the existing
shareholders of any such class.
ARTICLE VI
DIRECTORS
SECTION 6.1 NUMBER. The number of directors of the Corporation shall be
fixed from time-to-time by or in the manner provided in the Bylaws, but the
number thereof shall never be less than three (3).
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SECTION 6.2 DIRECTION OF PURPOSE AND EXERCISE OF POWERS. The business
and affairs of the Corporation shall be managed and conducted by or under the
direction of the Board of Directors. The Board of Directors, subject to any
specific limitations or restrictions imposed by the Act or these Articles of
Incorporation, shall direct the carrying out of the purpose and exercise the
powers of the Corporation, without previous authorization or subsequent approval
by the shareholders of the Corporation.
SECTION 6.3 CLASSIFICATION OF DIRECTORS. The directors shall be divided
into three classes, each class to consist, as nearly as may be, of one-third of
the number of directors constituting the whole board. The term of office of
those of the first class shall expire at the annual meeting of shareholders to
be held in 1996. The term of office of the second class shall expire at the
annual meeting of shareholders to be held in 1997. The term of office of the
third class shall expire at the annual meeting of shareholders to be held in
1998. At each annual meeting of shareholders following such initial
classification and election, directors elected to succeed those directors whose
terms have expired shall be elected for a term of office to expire at the third
succeeding annual meeting of shareholders following their election. Each
director shall be entitled to serve for the term for which he was elected or
until his successor shall be elected and qualified, whichever period is longer.
SECTION 6.4 REMOVAL OF DIRECTORS. At a meeting of shareholders called
expressly for that purpose, directors shall be removed, but only upon a showing
of cause, by a vote of the majority of the shareholders then entitled to vote at
the election of directors, provided that if less than the entire Board of
Directors is removed, no director may be removed unless the number of votes cast
to remove such director exceeds the number of votes cast not to remove such
director. For purposes of this Section, "cause" shall mean the participation by
a director in any transaction in which his personal financial interests are in
conflict with the financial interests of the Corporation or its shareholders;
any act or omission not in good faith or which involves intentional misconduct
or which is known to a director to be a violation of law; or the participation
by a director in any transaction from which the director derived an improper
personal benefit.
SECTION 6.5 AMENDMENT. Anything contained in these Articles of
Incorporation to the contrary notwithstanding (and notwithstanding that a lesser
percentage may be specified or permitted by law), the affirmative vote of the
holders of at least 80% of the voting power of all of the then outstanding
shares of the Corporation entitled to vote generally in the election of
directors, voting together as a single class, shall be required to alter, amend
or repeal any provision of this Article VI.
ARTICLE VII
INDEMNIFICATION AND CONFLICT OF INTEREST TRANSACTION
SECTION 7.1 INDEMNIFICATION. The Corporation shall, to the fullest
extent permitted by the Act, indemnify any director, officer, employee or agent
of the Corporation from and against any and all reasonable costs and expense
(including, without limitation, attorneys' fees) and any
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liabilities (including, without limitation, judgments, fines, penalties and
reasonable settlements) paid by or on behalf of, or imposed against, such person
in connection with any threatened, pending or completed claim, action, suit or
proceeding, whether civil, criminal, administrative, investigative or other
(including any appeal relating thereto), whether formal or informal, and whether
made or brought by or in the right of the Corporation or otherwise, in which
such person is, was or at any time becomes a named defendant or respondent or
witness, or is threatened to be made a named defendant or respondent or witness,
or otherwise, by reason of the fact that such person is, was or at any time
becomes a director, officer, employee or agent of the Corporation or, at the
Corporation's request, a director, officer, partner, member, manager, trustee,
employee or agent of another corporation, partnership, limited liability
company, joint venture, trust, employee benefit plan or other enterprise.
The indemnification authorized by this Section 7.1 shall not be
exclusive of any other right of indemnification which any such person may have
or hereafter acquire under any provision of these Amended and Restated Articles
of Incorporation or the Bylaws of the Corporation, agreement, vote of
shareholders or disinterested directors or otherwise. The Corporation may take
such steps as may be deemed appropriate by the board of directors to provide and
secure indemnification to any such person, including, without limitation, the
execution of agreements for indemnification between the Corporation and
individual directors, officers, employees or agents which may provide rights to
indemnification which are broader or otherwise different than the rights
authorized by this Section.
SECTION 7.2 CONFLICT OF INTEREST TRANSACTION. A conflict of interest
transaction, as defined in Indiana Code ss. 23-1-35-2(a), is not voidable by the
Corporation provided the conflict of interest transaction satisfies the
provisions specified in Indiana Code ss. 23-1-35-2.
ARTICLE VIII
BUSINESS AND AFFAIRS OF THE CORPORATION
SECTION 8.1 BYLAWS. The Board of Directors shall have the power,
without the assent or vote of the shareholders, to adopt, amend or repeal any
provision of the Bylaws of the Corporation.
SECTION 8.2 AMENDMENTS TO ARTICLES OF INCORPORATION. With the exception
of Article VI, notwithstanding any other provision of these Amended and Restated
Articles of Incorporation or the Bylaws of the Corporation (and notwithstanding
that some lesser percentage may be specified by law), but in addition to any
vote of the holders of any class or series of the stock of this Corporation
required by law or these Amended and Restated Articles of Incorporation, the
affirmative vote of the holders of at least sixty-seven percent (67%) of the
voting power of all of the then-outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors, voting
together as a single class, shall be required to amend or repeal these Amended
and Restated Articles of Incorporation.
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