Exhibit 2
ESCROW AGREEMENT
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ESCROW AGREEMENT, dated February 24, 1997, among Republic
Industries, Inc., a Delaware corporation ("Republic"), and the stockholders
(the "Stockholders") of National Car Rental System, Inc., a Delaware
corporation (the "Company"), and Akerman, Senterfitt & Xxxxxx, P.A. as escrow
agent (the "Escrow Agent"), and Xxxxxxx X. Xxxxxx, Xx. as the representative
of the Stockholders (the "Stockholders' Representative").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Stockholders are the record and beneficial owners of
(i) all the issued and outstanding shares of common stock (the "Company
Common Stock"), par value $.01 per share, of the Company and (ii) all of the
issued and outstanding shares of Series A Preferred Stock, par value $.01 per
share, of the Company (the "Company Preferred Stock" and, together with the
Company Common Stock, the "Company Shares");
WHEREAS, pursuant to a Share Exchange Agreement, dated as of
January 5, 1997, among Republic, the Company and the Stockholders (the
"Agreement"), the Stockholders are exchanging their Company Shares for shares
of common stock, par value $.01 per share, of Republic ("Republic Common
Stock");
WHEREAS, pursuant to Section 2.3 of the Agreement, Republic is to
deposit in escrow certificates representing 2,164,194 shares of Republic
Common Stock to be issued pursuant to the Agreement (such shares of Republic
Common Stock being hereinafter referred to as the "Escrowed Consideration")
for the purpose of securing to Republic the obligations of the Stockholders
under Article X of the Agreement;
WHEREAS, Republic and each of the Stockholders desire that the
Escrow Agent serve as escrow agent to hold the Escrowed Consideration and the
Escrow Agent is willing to do so, all upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, for $10.00 and in consideration of the mutual
covenants herein contained, the parties hereto agree as follows:
I. ESCROWED CONSIDERATION.
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1.1 Each Stockholder hereby authorizes Republic to deliver
to the Escrow Agent on behalf of such Stockholder, simultaneously with the
execution and delivery of this Escrow Agreement, a stock certificate or
certificates registered in the name of such Stockholder representing its pro
rata interest in the Escrowed Consideration as set forth on Schedule I hereto
(as to each Stockholder, the "Pro Rata Interest"); and each Stockholder is
delivering to the Escrow Agent a stock transfer power or powers executed by
such Stockholder in blank, to be held for use in connection with the shares
of Republic Common Stock to be included in the Escrowed Consideration. By
execution of this Agreement and of Schedule I hereto, the Escrow Agent hereby
acknowledges receipt of such certificates and stock powers. Copies of the
certificates evidencing the Escrowed Consideration are attached hereto as
Exhibits "A" and "B."
1.2 Each Stockholder hereby authorizes delivery directly to
the Escrow Agent (and each agrees that it will deliver to the Escrow Agent if
it shall first receive the same) all shares of Republic Common Stock issued
or issuable to such Stockholder as a result of any stock dividend or stock
split, with respect to the Escrowed Consideration. Such additional shares
shall be registered in the name of such Stockholder, shall become part of the
Escrowed Consideration and shall be treated as Escrowed Consideration
hereunder with the same effect as if such shares had been delivered to the
Escrow Agent simultaneously with the execution and delivery of this Escrow
Agreement.
1.3 While any Escrowed Consideration is held in escrow
hereunder, each Stockholder will have all rights (including voting rights and
the right to receive cash dividends or distributions) with respect thereto in
accordance with its Pro Rata Interest of the Escrowed Consideration, except
(a) the right of possession and (b) the right to receive any shares of
Republic Common Stock referred to in Section 1.2 hereof.
II. DELIVERY OF ESCROWED CONSIDERATION BY ESCROW AGENT.
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The Escrow Agent shall hold the Escrowed Consideration in
escrow until authorized hereunder to deliver the same or any portion thereof,
as follows:
2.1 The Escrow Agent shall deliver to each Stockholder on
February 24, 1998 (the "Expiration Date") any Escrowed Consideration then
held by it which is registered in the name of such Stockholder unless and to
the extent there then remains unresolved any pending claim or any dispute
between Republic and the Stockholders' Representative regarding any claim
asserted pursuant to Section 2.2 hereof, including any claim with respect to
which the Company has asserted a claim against General Motors Corporation
pursuant to Section 10.7 of the Agreement, in which event any Escrowed
Consideration remaining on deposit after each such claim shall have been
determined, resolved and satisfied as set forth in Articles III and IV hereof
shall be delivered to the Stockholders promptly after the time of
determination, resolution and satisfaction of such claim to the extent not
subject to any other then remaining claims. No certificate or script
representing fractional shares of the Escrowed Consideration shall be
delivered to the Stockholders, and such fractional share interests shall not
entitle the owner thereof to vote or to any rights as a stockholder of
Republic. In lieu of any such fractional shares, each Stockholder who would
otherwise have been entitled to a fraction of a share of Republic Common
Stock shall be entitled to receive a cash payment in lieu of such fractional
share in an amount equal to such fraction multiplied by $28.625; provided
that, if following the date hereof the outstanding shares of Republic
Common Stock shall have been changed into a different number of shares or a
different class, by reason of any stock dividend, subdivision,
reclassification, recapitalization, split, combination, exchange of shares or
similar transaction, the value of each share of Republic Common Stock
comprising the Escrowed Consideration shall be correspondingly adjusted to
reflect such stock dividend, subdivision, reclassification,
recapitalization, split, combination, exchange of shares or similar
transaction. Nothing stated in the previous sentence shall be construed as
providing the Stockholders any preemptive or antidilutive rights other than
in the case of a stock dividend, subdivision, reclassification, recapital-
ization, split, combination, exchange of shares or similar transaction and,
except in such case, there shall be no adjustment to the per share value of
the Republic Common Stock which comprises the Escrowed Consideration in the
event that Republic issues or agrees to issue any shares of Republic Common
Stock between the date hereof and the Expiration Date, whether for cash,
through option grants, option or warrant exercises, in acquisitions, or in
other transactions.
2.2 If at any time from the date hereof prior to the
Expiration Date, Republic has a reasonable good faith basis for asserting a
claim for Indemnifiable Damages under the Agreement, it shall give prompt
written notice (an "Indemnification Notice") to the Escrow Agent (with a copy
to the Stockholders' Representative) in the form of Exhibit C attached
hereto. Upon receipt by the Escrow Agent of an Indemnification Notice, the
Escrow Agent shall hold in escrow hereunder a portion of the Escrowed
Consideration (pro rata in accordance with each Stockholder's Pro Rata
Interest in the Escrowed Consideration) with a value (as determined below)
equal to the amount of the claim set forth in Indemnification Notice and all
other pending or disputed claims hereunder (or shall hold in escrow hereunder
the entire Escrowed Consideration then in its possession if the value of the
Escrowed Consideration then in its possession will not be sufficient to pay
the full amount of all pending or disputed claims) and shall release such
Escrowed Consideration or portion thereof (i) to the Stockholders only in
accordance with the provisions of Section 2.1 hereof, or (ii) to Republic
only in accordance with the provisions of Article III and Article IV hereof.
For purposes of satisfying any claim for Indemnifiable Damages under the
Agreement made by Republic or otherwise valuing the Escrowed Consideration
hereunder, the shares of Republic Common Stock shall be valued at $28.625 per
share (subject to any adjustment described in the proviso in Section 2.1
hereof). Promptly after receipt of an Indemnification Notice, the Escrow
Agent shall send to the Stockholders' Representative a second copy of such
Indemnification Notice.
2.3 Promptly after any determination of a claim in
accordance with the provisions of Article III hereof, and promptly after any
receipt of notice of the resolution of a disputed claim in accordance with
the provisions of Article IV hereof (which notice shall be accompanied by a
copy of any agreement, final court order, judgment or decree evidencing such
resolution), the Escrow Agent shall deliver to Republic, free and clear of
any interest of the Stockholders therein, Escrowed Consideration, with a
value (as determined below) equal to the amount, if any, of such claim
payable to Republic pursuant to such determination or resolution. Such
amount shall be charged pro rata against each Stockholder's Pro Rata Interest
of the Escrowed Consideration. For purposes of satisfying any claim so
determined or resolved for Indemnifiable Damages under the Agreement made by
Republic or otherwise valuing the Escrowed Consideration hereunder, the
shares of Republic Common Stock shall be valued at $28.625 per share (subject
to any adjustment described in the proviso in Section 2.1 hereof). If the
value (as determined under the preceding sentence) of the Escrowed
Consideration then held by the Escrow Agent is less than the amount, if any,
of such claim so payable, the Escrow Agent shall deliver to Republic all of
the Escrowed Consideration then held by it, free and clear of any interest of
the Stockholders therein, whereupon this Escrow Agreement shall terminate.
III. DETERMINATION OF CLAIMS.
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The determination of a claim for Indemnifiable Damages
asserted under the Agreement and against the Escrowed Consideration hereunder
shall be made as follows:
3.1 The claim shall be deemed to have resulted in a
determination in favor of Republic, in an amount equal to the amount of such
claim estimated by Republic pursuant to Section 2.2 hereof, on the 30th day
after Republic gives the Escrow Agent and the Stockholders' Representative
the Indemnification Notice with respect to such claim pursuant to Section 2.2
hereof, unless prior thereto the Escrow Agent has received notice from the
Stockholders' Representative (with a copy to Republic) that the Stockholders
have a reasonable good faith basis for disputing the claim in the form of
Exhibit D attached hereto (a "Dispute Notice"). Promptly after receipt of
any Dispute Notice, the Escrow Agent shall send Republic a second copy of
such Dispute Notice.
3.2 If a claim asserted hereunder is disputed by the
Stockholders' Representative in the manner provided in Section 3.1 hereof,
the resolution of such disputed claim shall be made in accordance with the
provisions for the settlement of disputes contained in Article IV hereof and
such resolution shall be evidenced by the documentation referred to in
Section 4.4 hereof.
3.3 (a) If the Stockholders elect to undertake the defense
of a claim in accordance with Section 10.6(a) of the Agreement, the
Stockholders' Representative may from time to time deliver to the Escrow
Agent (with a copy to Republic) a notice in the form of Exhibit E attached
hereto (a "Reimbursement Notice"). Promptly after receipt of a Reimbursement
Notice, the Escrow Agent shall send to Republic a second copy of such
Reimbursement Notice.
(b) If Republic wishes to dispute such
Reimbursement Notice, it shall so notify the Escrow Agent and the
Stockholders' Representative in writing, providing a reasonable good faith
basis for such dispute, in the form of Exhibit F attached hereto (a
"Reimbursement Dispute Notice") within 30 days after the Stockholders'
Representative gives the Escrow Agent and Republic such Reimbursement Notice,
in which case the dispute shall be resolved in accordance with the provisions
for the settlement of disputes contained in Article IV hereof and such
resolution shall be evidenced by the documentation referred to in Section 4.4
hereof. Promptly after receipt of a Reimbursement Dispute Notice, the Escrow
Agent shall send to the Stockholders' Representative a second copy of such
Reimbursement Dispute Notice.
(c) If Republic fails to provide a Reimbursement
Dispute Notice within such 30-day period, or upon receipt of any instructions
pursuant to Section 4.4 hereof, the Escrow Agent shall, notwithstanding the
provisions of Section 2.2 hereof, distribute to the Stockholders'
Representative a portion of the Escrowed Consideration with a value (as
determined below) sufficient to pay the full amount of the expenses set forth
in such Reimbursement Notice, if not disputed, or resolved pursuant to
Article IV, if disputed. Such distribution shall be made pro rata against
each Stockholder's Pro Rata Interest in the Escrowed Consideration. For
purposes of valuing the Escrowed Consideration hereunder, the shares of
Republic Common Stock shall be valued at $28.625 per share (subject to any
adjustment described in the proviso in Section 2.1 hereof).
IV. SETTLEMENT OF DISPUTES.
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If the Stockholders' Representative delivers a Dispute
Notice in compliance with Section 3.1 hereof, or Republic delivers a
Reimbursement Dispute Notice in compliance with Section 3.3(b) hereof,
Republic and the Stockholders' Representative shall follow the procedures set
forth below:
4.1 Promptly following receipt (i) by Republic of a Dispute
Notice or (ii) by the Stockholders of a Reimbursement Dispute Notice, the
parties (other than the Escrow Agent) shall hold a meeting (the "Initial
Meeting"), attended by persons with decision-making authority for each party,
regarding the dispute, to attempt in good faith to negotiate a resolution of
the dispute; provided, however, that no such meeting, or any statements made
or documents exchanged by the parties at such meeting, shall be deemed to
vitiate or reduce the obligations and liabilities of the parties hereunder or
under the Agreement or be deemed a waiver by a party hereto of any remedies
to which such party would otherwise be entitled hereunder or under the
Agreement.
4.2 If, within thirty (30) days after the Initial Meeting
or such longer period as the parties (other than the Escrow Agent) may agree,
the parties (other than the Escrow Agent) have not succeeded in negotiating a
resolution of the dispute, the parties (other than the Escrow Agent) shall
submit the dispute to mediation in accordance with the then-current CPR Model
Mediation Procedure for Business Disputes published by the CPR Institute for
Dispute Resolution (the "CPR"). In connection with such mediation, the
parties (other than the Escrow Agent) shall jointly appoint a mutually
acceptable mediator, seeking assistance in such regard from the CPR if they
have been unable to agree upon such appointment within twenty (20) days from
the conclusion of the negotiation period. The parties (other than the Escrow
Agent) shall bear equally the out-of-pocket costs payable to third parties of
the mediation; provided, however, that costs payable by a party to its
advisors and other representatives, including its attorneys and any experts
or consultants retained on its behalf, shall be borne solely by such party.
Such mediation shall be held in New York City unless the parties agree
otherwise.
4.3 The parties (other than the Escrow Agent) shall
participate in good faith in the mediation and negotiations related thereto
for a period of no more than thirty (30) days from the date a mediator is
appointed, unless such parties agree to extend such period. If the parties
(other than the Escrow Agent) are not successful in resolving the dispute
through the mediation, then any such party may institute legal proceedings to
adjudicate such dispute, subject to the provisions of Section 11.12 of the
Agreement.
4.4 The settlement or resolution of any dispute shall be
evidenced to the Escrow Agent by notice and appropriate instructions as to
disbursement of the Escrowed Consideration in writing to the Escrow Agent
signed (i) by Republic and the Stockholders' Representative or (ii) by either
Republic or the Stockholders' Representative certifying that attached thereto
is a certified copy of a final judgment, order or decree of the United States
District Court for the District of Delaware or a court of competent
jurisdiction of the State of Delaware or any appellate court thereof, and
that the time for appeal therefrom has expired and no appeal has been
perfected. A copy of such notice and instructions shall be sent to the
Stockholders' Representative or Republic, respectively. Prior to the
settlement or resolution of any dispute as provided in this Article IV, the
Escrow Agent shall retain in its possession such portion of the Escrowed
Consideration which is the subject of the dispute.
V. CONCERNING THE ESCROW AGENT.
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5.1 The Escrow Agent shall be entitled to reasonable
compensation for its services hereunder and shall be reimbursed for all
reasonable expenses, disbursements and advances (including reasonable
attorneys' fees and expenses) incurred or made by it in performance of its
duties hereunder. The reasonable compensation, expenses, disbursements and
advances shall be paid by Republic upon request by the Escrow Agent from time
to time.
5.2 The Escrow Agent may resign and be discharged from its
duties hereunder at any time by giving notice of such resignation to Republic
and to the Stockholders' Representative specifying a date (not less than
thirty (30) days after the giving of such notice) when such resignation shall
take effect. Promptly after such notice, a successor escrow agent shall be
appointed by mutual agreement of Republic and the Stockholders'
Representative, such successor escrow agent to become Escrow Agent hereunder
upon the resignation date specified in such notice. The Escrow Agent shall
continue to serve until its successor accepts the escrow and receives the
Escrowed Consideration; provided, however, that, if no successor escrow agent
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is appointed prior to the date specified in the Escrow Agent's notice of
resignation, the Escrow Agent shall be relieved of its duties hereunder and
shall have the option to retain the Escrowed Consideration solely as a
custodian or to interplead the Escrowed Consideration with a federal court of
competent jurisdiction in Dade County, Florida. Republic and the
Stockholders' Representative may agree at any time to substitute a new escrow
agent by giving notice thereof to the Escrow Agent then acting.
5.3 The Escrow Agent undertakes to perform only such duties
as are specifically set forth herein, and no implied duties or obligations
shall be read herein against the Escrow Agent. The Escrow Agent shall not be
bound in any way by, or be deemed to have knowledge of the terms of, the
Agreement or any other agreement among the parties hereto, the Company, the
Stockholders or Republic other than this Escrow Agreement. The Escrow Agent
acting or refraining from acting in good faith shall not be liable for any
mistake of fact or error of judgment by it or for any acts or omissions by it
of any kind unless caused by wilful misconduct or gross negligence, and shall
be entitled to rely and shall be protected in doing so upon (a) any written
notice, instrument or signature believed by it to be genuine, and (b) the
advice of counsel (which may be of the Escrow Agent's own choosing). The
Escrow Agent shall have no responsibility for the contents of any writing
submitted to it hereunder and may assume the validity and accuracy of any
statement or assertion contained in such a writing or instrument, and may
assume that any person who gives any writing, notice, advice, or instructions
in connection with the provisions hereof has been duly authorized to do so.
The Escrow Agent makes no representations and has no responsibility as to the
validity, genuineness or sufficiency of any of the documents or instruments
delivered to it, and shall be entitled in good faith to rely without any
liability upon the contents thereof.
5.4 Republic, on the one hand, and the Stockholders, on the
other hand, jointly and severally agree to indemnify the Escrow Agent and
hold it harmless against any and all liabilities, expenses, claims, losses,
actions, suits or proceedings, at law or in equity, incurred by it hereunder
(including attorneys' fees) except for the compensation, expenses,
disbursements and advances described in Section 5.1 hereof and for
liabilities incurred by the Escrow Agent resulting from its own wilful
misconduct or gross negligence; provided that Republic, on the one hand, and
the Stockholders, on the other hand, will be entitled to a right of
contribution from the other if such liabilities result from the Stockholders'
actions (including the Stockholders' Representative's actions), or Republic's
actions, respectively.
5.5 If at any time Escrow Agent determines, in Escrow
Agent's sole and absolute discretion, that there is a dispute concerning
whether any of the Escrowed Consideration is to be released under this
Agreement or to whom the Escrowed Consideration is to be released, the
interpretation of this Escrow Agreement, the rights and obligations of any of
the parties hereunder, or about the propriety of any action contemplated by
the Escrow Agent hereunder, the Escrow Agent may, in its sole and absolute
discretion, interplead the Escrowed Consideration in a federal court of
competent jurisdiction in Dade County, Florida, and the Escrow Agent shall be
fully indemnified by the parties hereto in accordance with Section 5.4 hereof
and shall also be deemed to be released from all obligations or liabilities
under or with respect to this Escrow Agreement except to the extent resulting
from the wilful misconduct or gross negligence of the Escrow Agent.
5.6 The parties acknowledge that Akerman, Senterfitt &
Xxxxxx, P.A. is counsel to Republic and agree that in the event of a dispute
hereunder or with respect to the Escrowed Consideration, the parties shall
not assert that Akerman, Senterfitt & Xxxxxx, P.A. is barred from
representing itself and/or Republic by reason of its dual status; provided,
however, that Akerman, Senterfitt & Xxxxxx, P.A. shall not represent Republic
in connection with any dispute under this Escrow Agreement.
5.7 UNDER NO CIRCUMSTANCES SHALL ESCROW AGENT HAVE ANY
LIABILITY HEREUNDER ON ACCOUNT OF ANY LOSS SUFFERED BY REPUBLIC OR THE
STOCKHOLDERS AS A RESULT OF THE ESCROW AGENT FAILING TO DELIVER ANY OF THE
ESCROWED CONSIDERATION IN A TIMELY MANNER EXCEPT TO THE EXTENT RESULTING FROM
THE ESCROW AGENT'S WILFUL MISCONDUCT OR GROSS NEGLIGENCE.
VI. MISCELLANEOUS.
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6.1 The Stockholders, Republic and the Escrow Agent
acknowledge that Santa Xxxx Holdings, Inc. ("Santa Xxxx") intends to
liquidate following the Closing Date, and hereby agree that following such
liquidation each of the stockholders of Santa Xxxx shall become Stockholders
hereunder entitled to the rights and subject to the obligations hereunder
(including the indemnification obligations of Section 5.4 hereof) with the
Pro Rata Interest of Santa Xxxx to be divided among such Santa Xxxx
stockholders as the Stockholders' Representative shall specify. As security
for the Santa Xxxx stockholders' Section 5.4 indemnification obligations,
Santa Xxxx does hereby grant to Escrow Agent a security interest in and a
lien upon Santa Anna's Pro Rata Interest of the Escrowed Consideration, which
lien shall automatically terminate when Santa Xxxx stockholders agree in
writing to undertake all the indemnification obligations of Santa Xxxx under
Section 5.4 hereof.
6.2 This Escrow Agreement shall be binding upon, inure to
the benefit of, and be enforceable by the respective heirs, beneficiaries,
representatives, successors and assigns of the parties hereto.
6.3 This Escrow Agreement contains the entire understanding
of the parties with respect to its subject matter, and may be amended only by
a written instrument duly executed by all the parties hereto.
6.4 All notices, claims, requests, demands and other
communications hereunder shall be in writing and shall be deemed given on the
date delivered if delivered personally (including by reputable overnight
courier), on the date transmitted if sent by facsimile (which is confirmed)
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):
(a) If to Republic:
Republic Industries, Inc.
000 Xxxx Xxx Xxxx Xxxx.
Xxxxx 0000
Xxxx Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx (DE)
Xxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
(b) If to Stockholders' Representative:
Xxxxxxx X. Xxxxxx, Xx.
National Car Rental System, Inc.
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
With copies to:
Xxxxxxx X. Xxxxxx
Xxxxx & Xxxxxxx
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxx, XX 00000-0000
Facsimile: (000) 000-0000
and to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
and to:
Altheimer & Xxxx
00 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
(c) If the Escrow Agent:
Akerman, Senterfitt and Xxxxxx, P.A.
Sun Trust International Center
00xx Xxxxx
Xxx Xxxxxxxxx Xxxxx Xxxxxx
Xxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxx
Facsimile: (000) 000-0000
All deliveries of Escrowed Consideration made by the Escrow Agent hereunder
shall be made: if to Republic, to it at the address set forth above; and if
to the Stockholders, at their addresses specified by the Stockholders'
Representative.
6.5 This Escrow Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Delaware.
6.6 This Escrow Agreement may be executed simultaneously in
one or more counterparts, each of which shall be deemed an original but all
of which together shall constitute one and the same instrument.
6.7 This Escrow Agreement shall remain in full force and
effect until the Escrow Agent has delivered all the Escrowed Consideration in
its possession in accordance with the terms hereof.
6.8 Article headings contained herein are for reference
purposes only and shall not in any way affect the meaning or interpretation
of this Escrow Agreement.
6.9 If any provision of this Agreement or the application
thereof to any person or circumstance is determined by a court of competent
jurisdiction to be invalid, void or unenforceable, the remaining provisions
hereof, or the application of such provision to persons or circumstances
other than those as to which it has been held invalid or unenforceable, shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated thereby, so long as the economic or legal substance of the
transactions contemplated thereby is not affected in any manner adverse to
any party. Upon any such determination, the parties shall negotiate in good
faith in an effort to agree upon a suitable and equitable substitute
provision to effect original intent of the parties.
6.10 This Escrow Agreement is made for the sole protection
of the parties hereto and their respective successors and assigns, and no
other person may rely hereon or claim benefit hereunder.
IN WITNESS WHEREOF, the parties hereto have duly executed
this Escrow Agreement on the date first above written.
REPUBLIC INDUSTRIES, INC.
By /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: V.P.
THE STOCKHOLDERS
SANTA XXXX HOLDINGS, INC.
By /s/ Xxxxxxx X. Xxxxxx, Xx.
--------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title:
EMERALD INVESTORS, L.L.C.
By /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Administrative Officer
AKERMAN, SENTERFITT & XXXXXX, P.A.
By /s/ Xxxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Attorney
STOCKHOLDERS' REPRESENTATIVE
By /s/ Xxxxxxx X. Xxxxxx, Xx.
--------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
SCHEDULE I
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TOTAL ESCROWED CONSIDERATION:
2,164,194 shares of Republic Common Stock
PERCENTAGE
INTEREST IN THE
ESCROWED NUMBER
STOCKHOLDER CERTIFICATE NO. CONSIDERATION OF SHARES
----------- --------------- --------------- ---------
Santa Xxxx Holdings, Inc. 90 1,947,775
Emerald Investors, L.L.C. 10 216,419
Receipt Acknowledged
--------------------
AKERMAN, SENTERFITT & XXXXXX, P.A.
By_______________________
Name:
Title:
EXHIBIT A
NUMBER REPUBLIC SHARES
RI-17671 INDUSTRIES, INC. **1947775**
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
THIS CERTIFICATE IS TRANSFERABLE IN SEE REVERSE FOR
NEW YORK CITY, NEW YORK OR CHICAGO, ILLINOIS CERTAIN DEFINITIONS
CUSIP 760516 10 4
This certifies that ***SANTA XXXX HOLDINGS, INC ****1947775******
**1947775*****
IMPORTANT-SEE REVERSE ***1947775****
SIDE OF CERTIFICATE FOR ****1947775***
RESTRICTIVE LEGEND *****1947775**
is the owner of ONE MILLION NINE HUNDRED FORTY SEVEN THOUSAND SEVEN
HUNDRED SEVENTY FIVE***
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK, PAR VALUE $.01, OF
REPUBLIC INDUSTRIES, INC.
transferable on the books of the Corporation in person or by duly authorized
attorney upon surrender of this Certificate properly endorsed. This
certificate and the shares evidenced hereby are issued under and shall be
subject to all of the provisions of the Articles of Incorporation of the
Corporation and any amendment thereto, copies of which are on file with the
Corporation and the Transfer Agent, to all of which the holder by acceptance
hereof, assents. This Certificate is not valid until countersigned by the
Transfer Agent and registered by Registrar.
WITNESS the facsimile seal of the corporation and the facsimile signature of
its duly authorized officers.
Dated: Feb. 24, 1997
Countersigned and Registered
XXXXXX Trust and Savings BANK
(CHICAGO)
TRANSFER AGENT AND REGISTRAR
/S/ PRESIDENT /S/ SECRETARY /S/ AUTHORIZED SIGNATURE
REPUBLIC INDUSTRIES, INC.
CORPORATE SEAL 1991 DELAWARE
[REVERSE SIDE]
REPUBLIC INDUSTRIES, INC.
THE COMPANY WILL FURNISH WITHOUT CHARGE TO EACH SHAREHOLDER WHO SO
REQUESTS, A STATEMENT OF THE DESIGNATIONS, PREFERENCES AND RELATIVE,
PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK OR
SERIES THEREOF WHICH THE COMPANY IS AUTHORIZED TO ISSUE AND THE
QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES AND/OR
RIGHTS. ANY SUCH REQUEST IS TO BE ADDRESSED TO THE SECRETARY OF THE COMPANY
OR TO THE TRANSFER AGENT NAMED ON THE FACE OF THIS CERTIFICATE.
_________________________________________________________________
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as through they were written out in
full according to applicable laws or regulations:
TEN COM-as tenants in common UNIF GIFT MIN ACT______ Custodian_____
TEN ENT-as tenants by the entireties (Cust) (Minor)
JT TEN-as joint tenants with
right of survivorship and Under Uniform Gifts to Minors
not as tenants in common Act____________________
(State)
Additional abbreviations may also be used though not in the above list.
For Value Received, _____________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP OR POSTAL CODE,
OF ASSIGNEE)
________________________________________________________________________________
________________________________________________________________________________
_________________________________________________________________________Shares
of the Common Stock represented by the within certificate, and do hereby
irrevocably constitute and appoint
_______________________________________________________________________Attorney
to transfer the said shares on the books of the within named Corporation with
full power of substitution in the premises.
Dated,
___________________________________
SIGNATURE
___________________________________
SIGNATURE
NOTICE THE SIGNATURE(S) TO THIS ASSIGNMENT
MUST CORRESPOND WITH THE NAME(S) AS WRITTEN
UPON THE FACE OF THE CERTIFICATE, IN EVERY
PARTICULAR, WITHOUT ALTERATION OR
ENLARGEMENT, OR ANY CHANGE WHATEVER.
SIGNATURE GUARANTEED: THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN
ELIGIBLE GUARANTOR INSTITUTION, (BANKS,
STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS
AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED
SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT
TO S.E.C. RULE 17Ad-15.
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF BY THE HOLDER EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT FILED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(the "ACT") AND IN COMPLIANCE WITH APPLICABLE SECURITIES LAWS OF ANY STATE
WITH RESPECT THERETO OR IN ACCORDANCE WITH AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE ISSUER THAT AN EXEMPTION FROM SUCH REGISTRATION
IS AVAILABLE AND ALSO MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF
BY THE HOLDER WITHOUT COMPLIANCE WITH THE SECURITIES AND EXCHANGE
COMMISSION'S ACCOUNTING SERIES RELEASES 130 AND 135.
EXHIBIT B
NUMBER REPUBLIC SHARES
RI-17673 INDUSTRIES, INC. **216419**
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
THIS CERTIFICATE IS TRANSFERABLE IN SEE REVERSE FOR
NEW YORK CITY, NEW YORK OR CHICAGO, ILLINOIS CERTAIN DEFINITIONS
CUSIP 760516 10 4
This certifies that ***EMERALD INVESTORS L L C ****216419******
**216419*****
IMPORTANT - SEE REVERSE ***216419****
SIDE OF CERTIFICATE FOR ****216419***
RESTRICTIVE LEGEND *****216419**
is the owner of TWO HUNDRED SIXTEEN THOUSAND FOUR HUNDRED AND NINETEEN***
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK, PAR VALUE $.01, OF
REPUBLIC INDUSTRIES, INC.
transferable on the books of the Corporation in person or by duly authorized
attorney upon surrender of this Certificate properly endorsed. This
certificate and the shares evidenced hereby are issued under and shall be
subject to all of the provisions of the Articles of Incorporation of the
Corporation and any amendment thereto, copies of which are on file with the
Corporation and the Transfer Agent, to all of which the holder by acceptance
hereof, assents. This Certificate is not valid until countersigned by the
Transfer Agent and registered by Registrar.
WITNESS the facsimile seal of the corporation and the facsimile signature of
its duly authorized officers.
Dated: Feb. 24, 1997
Countersigned and Registered
XXXXXX Trust and Savings BANK
(CHICAGO)
TRANSFER AGENT AND REGISTRAR
/s/ PRESIDENT /s/SECRETARY /s/AUTHORIZED SIGNATURE
Republic Industries, Inc. Corporate
Corporate Seal 0000
Xxxxxxxx
XXXXXXXX INDUSTRIES, INC.
THE COMPANY WILL FURNISH WITHOUT CHARGE TO EACH SHAREHOLDER WHO SO
REQUESTS, A STATEMENT OF THE DESIGNATIONS, PREFERENCES AND RELATIVE,
PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK OR
SERIES THEREOF WHICH THE COMPANY IS AUTHORIZED TO ISSUE AND THE
QUALIFICATIONS. LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES AND/OR
RIGHTS. ANY SUCH REQUEST IS TO BE ADDRESSED TO THE SECRETARY OF THE COMPANY
OR TO THE TRANSFER AGENT NAMED ON THE FACE OF THIS CERTIFICATE.
_________________________________________________________________
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as through they were written out in
full according to applicable laws or regulations:
TEN COM-as tenants in common UNIF GIFT MIN ACT____ Custodian_____
TEN ENT-as tenants by the entireties (Cust) (Minor)
JT TEN-as joint tenants with
right of survivorship and Under Uniform Gifts to Minors
not as tenants in common Act____________________
(State)
Additional abbreviations may also be used though not in the above list.
For Value Received, _____________ hereby sell, assign and transfer
unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
/___________________/
/ /
/___________________/
----------------------------------------------------------------------------
----------------------------------------------------------------------------
----------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP OR POSTAL CODE,
OF ASSIGNEE)
----------------------------------------------------------------------------
----------------------------------------------------------------------------
-----------------------------------------------------------------------Shares
of the Common Stock represented by the within certificate, and do hereby
irrevocably constitute and appoint
-------------------------------------------------------------------- Attorney
to transfer the said shares on the books of the within named Corporation with
full power of substitution in the premises.
Dated, _______________
____________________________
SIGNATURE
____________________________
SIGNATURE
NOTICE THE SIGNATURE(S) TO THIS ASSIGNMENT
MUST CORRESPOND WITH THE NAME(S)
AS WRITTEN UPON THE FACE OF THE
CERTIFICATE, IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT, OR
ANY CHANGE WHATEVER.
SIGNATURE GUARANTEED: THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN
ELIGIBLE GUARANTOR INSTITUTION, (BANKS, STOCKBROKERS,
SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE
MEDALLION PROGRAM), PURSUANT TO S.E.C. RULE 17Ad-15.
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF BY THE HOLDER EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT FILED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(the "ACT") AND IN COMPLIANCE WITH APPLICABLE SECURITIES LAWS OF ANY STATE
WITH RESPECT THERETO OR IN ACCORDANCE WITH AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE ISSUER THAT AN EXEMPTION FROM SUCH REGISTRATION
IS AVAILABLE AND ALSO MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF
BY THE HOLDER WITHOUT COMPLIANCE WITH THE SECURITIES AND EXCHANGE
COMMISSION'S ACCOUNTING SERIES RELEASES 130 AND 135.