EXHIBIT 2.0
AGREEMENT AND PLAN OF MERGER
Dated as of October 25, 1994,
Among
PARK ACQUISITIONS, INC.,
PARK ACQUISITIONS SUBSIDIARY, INC.
And
PARK COMMUNICATIONS, INC.
TABLE OF CONTENTS
ARTICLE I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.01. The Merger.. . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Closing. . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.03. Effective Time.. . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.04. Effects of the Merger. . . . . . . . . . . . . . . . . . 2
SECTION 1.05. Certificate of Incorporation and By-laws . . . . . . . . 2
SECTION 1.06. Directors. . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.07. Officers.. . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.01. Effect on Capital Stock. . . . . . . . . . . . . . . . . 3
SECTION 2.02. Exchange of Certificates and Merger Consideration. . . . 4
ARTICLE III. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 3.01. Representations and Warranties of the Company. . . . . . 6
SECTION 3.02. Representations and Warranties of Parent and Sub . . . . 20
ARTICLE IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 4.01. Conduct of Business. . . . . . . . . . . . . . . . . . . 23
ARTICLE V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 5.01. Shareholder Approval; Preparation of Proxy Statement . . 26
SECTION 5.02. Access to Information; Confidentiality . . . . . . . . . 26
SECTION 5.03. Reasonable Efforts; Notification . . . . . . . . . . . . 27
SECTION 5.04. Stock Options. . . . . . . . . . . . . . . . . . . . . . 28
SECTION 5.05. Benefit Plans; Noncompetition Agreements . . . . . . . . 29
SECTION 5.06. Indemnification. . . . . . . . . . . . . . . . . . . . . 30
SECTION 5.07. Fees and Expenses. . . . . . . . . . . . . . . . . . . . 31
SECTION 5.08. Public Announcements.. . . . . . . . . . . . . . . . . . 31
SECTION 5.09. New York Real Estate Gains Tax. . . . . . . . . . . . . 31
SECTION 5.10. FCC Waiver . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 6.01. Conditions to Each Party's Obligation
to Effect the Merger . . . . . . . . . . . . . . . . . . 32
SECTION 6.02. Conditions to Obligations of Parent and Sub. . . . . . . 33
SECTION 6.03. Conditions to Obligation of the Company. . . . . . . . . 34
ARTICLE VII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 7.01. Board Actions. . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE VIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 8.01. Termination. . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 8.02. Effect of Termination. . . . . . . . . . . . . . . . . . 37
SECTION 8.03. Amendment. . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 8.04. Extension; Waiver. . . . . . . . . . . . . . . . . . . . 37
SECTION 8.05. Procedure for Termination, Amendment,
Extension or Waiver. . . . . . . . . . . . . . . . . . . 37
ARTICLE IX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 9.01. Nonsurvival of Representations and Warranties. . . . . . 38
SECTION 9.02. Notices. . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 9.03. Definitions. . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 9.04. Interpretation.. . . . . . . . . . . . . . . . . . . . . 40
SECTION 9.05. Counterparts.. . . . . . . . . . . . . . . . . . . . . . 40
SECTION 9.06. Entire Agreement; No Third-Party Beneficiaries . . . . . 41
SECTION 9.07. Governing Law. . . . . . . . . . . . . . . . . . . . . . 41
SECTION 9.08. Assignment.. . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 9.09. Enforcement. . . . . . . . . . . . . . . . . . . . . . . 41
EXHIBIT A Form of Surviving Corporation's Certificate of Incorporation
EXHIBIT B Form of Opinion of Counsel to the Company
EXHIBIT C Form of Opinion of Counsel to Parent and Sub
AGREEMENT AND PLAN OF MERGER among PARK ACQUISITIONS, INC., a
Delaware corporation ("Parent"), PARK ACQUISITIONS SUBSIDIARY,
INC., a Delaware corporation and a wholly owned subsidiary of
Parent ("Sub"), and PARK COMMUNICATIONS, INC., a Delaware
corporation ("the Company").
WHEREAS, the respective Boards of Directors of Parent, Sub and the Company
(collectively, the "Constituent Corporations") have approved the merger of Sub
into the Company as set forth below (the "Merger"), upon the terms and subject
to the conditions set forth in this Agreement, whereby each share of common
stock of the Company, par value $.16-2/3 per share (the "Park Common Stock"),
that is issued and outstanding and not owned directly or indirectly by Parent
or the Company, except shares of Park Common Stock held by persons (as defined
in Section 9.03) who object to the Merger and comply with all the provisions of
Delaware law concerning the right of holders of Park Common Stock to dissent
from the Merger and require appraisal of their shares of Park Common Stock
("Dissenting Shareholders"), will be converted into the right to receive the
consideration provided in this Agreement; and
WHEREAS, the Constituent Corporations desire to make certain
representations, warranties, covenants and agreements in connection with the
Merger and also to prescribe various conditions to the Merger; and
WHEREAS, prior to or contemporaneous with entering into this Agreement,
the Constituent Corporations have entered into that certain Escrow Agreement
and that certain Assignment and Assumption Agreement.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Agreement, the parties hereby agree
as follows:
ARTICLE I
The Merger
SECTION 1.01. The Merger. Upon the terms and subject to the conditions
set forth in this Agreement, and in accordance with the Delaware General
Corporation Law (the "DGCL"), Sub shall be merged with and into the Company at
the Effective Time of the Merger (as defined in Section 1.03). Following the
Merger, the separate corporate existence of Sub shall cease and the Company
shall continue as the surviving corporation (the "Surviving Corporation") and
shall succeed to and assume all the rights and obligations of Sub in accordance
with the DGCL.
SECTION 1.02. Closing. The closing of the Merger (the "Closing") will
take place at 10:00 a.m. on a date to be specified by the parties, which
(subject to satisfaction or waiver of the conditions set forth in Sections 6.02
and 6.03) shall be no later than the second business day after satisfaction or
waiver of the conditions set forth in Section 6.01 (the "Closing Date"), at the
offices of Sutherland, Asbill & Brennan, 1270 Avenue of the Americas, New York,
N.Y. 10020, unless another date or place is agreed to in writing by the parties
hereto.
SECTION 1.03. Effective Time. As soon as practicable following the
satisfaction or waiver of the conditions set forth in Article VI, the parties
shall file a certificate of merger or other appropriate documents (in any such
case, the "Certificate of Merger") executed in accordance with the relevant
provisions of the DGCL and shall make all other filings or recordings required
under the DGCL. The Merger shall become effective at such time as the
Certificate of Merger is duly filed with the Delaware Secretary of State, or at
such other time as Sub and the Company shall agree should be specified in the
Certificate of Merger (the time the Merger becomes effective being the
"Effective Time of the Merger").
SECTION 1.04. Effects of the Merger. The Merger shall have the effects
set forth in the DGCL, including Section 259 thereof.
SECTION 1.05. Certificate of Incorporation and By-laws.
(a) The Certificate of Incorporation of the Surviving Corporation
shall be amended, to the extent necessary, to read as provided in Exhibit A
hereto, until thereafter changed or amended as provided therein or by
applicable law.
(b) The By-laws of Sub as in effect at the Effective Time of the
Merger shall be the By-laws of the Surviving Corporation until thereafter
changed or amended as provided therein or by applicable law.
SECTION 1.06. Directors. The directors of Sub at the Effective Time of
the Merger shall be the directors of the Surviving Corporation, until the
earlier of their resignation or removal or until their respective successors
are duly elected and qualified, as the case may be.
SECTION 1.07. Officers. The officers of the Company at the Effective
Time of the Merger shall be the officers of the Surviving Corporation, until
the earlier of their resignation or removal or until their respective
successors are duly elected and qualified, as the case may be.
ARTICLE II
Effect of the Merger on the Capital Stock
of the Constituent Corporations;
Exchange of Certificates and Merger Consideration
SECTION 2.01. Effect on Capital Stock. As of the Effective Time of the
Merger, by virtue of the Merger and without any action on the part of the
holder of any shares of Park Common Stock or any shares of capital stock of
Sub:
(a) Capital Stock of Sub. Each issued and outstanding share of the
capital stock of Sub shall automatically be converted into and become one fully
paid and nonassessable share of common stock, par value $1.00 per share, of the
Surviving Corporation.
(b) Cancellation of Treasury Stock and Parent Owned Stock. Each
share of Park Common Stock that is owned by the Company or by any Subsidiary
(as defined in Section 9.03) of the Company and each share of Park Common Stock
that is owned by Parent, Sub or any other subsidiary of Parent shall
automatically be cancelled and retired and shall cease to exist, and no
consideration shall be delivered in exchange therefor.
(c) Conversion of Park Common Stock. Subject to Section 2.01(d),
each issued and outstanding share of Park Common Stock (other than shares to be
cancelled in accordance with Section 2.01(b)) shall be converted into the right
to receive from Parent $30.50 per share of Park Common Stock (the "Merger
Consideration," derived by dividing the total dollar consideration to be paid
by Parent of $711,427,000.00 by 23,325,475, the sum of the number of shares of
Park Common Stock issued and outstanding as of September 30, 1994, and the
number of shares of Park Common Stock into which the Company's Convertible
Debentures (as defined in Section 9.03) will be converted at the time of the
Closing). The per share Merger Consideration will be adjusted to take into
account the issuance of additional Park Common Stock pursuant to the Stock Plan
(as defined in Section 5.04). As of the Effective Time of the Merger, all such
shares of Park Common Stock shall no longer be outstanding and shall
automatically be cancelled and retired and shall cease to exist, and each
holder of a certificate representing any such shares of Park Common Stock shall
cease to have any rights with respect thereto, except the right to receive the
Merger Consideration without interest.
(d) Shares of Dissenting Shareholders. Notwithstanding anything in
this Agreement to the contrary, no issued and outstanding share of Park Common
Stock held by a Dissenting Shareholder shall be converted as described in
Section 2.01(c), but shall instead become the right to receive such
consideration as may be determined to be due to such Dissenting Shareholder
pursuant to the laws of the State of Delaware; provided, however, that each
share of Park Common Stock issued and outstanding immediately prior to the
Effective Time of the Merger and held by a Dissenting Shareholder who shall,
after the Effective Time of the Merger, withdraw his demand for appraisal or
lose his right of appraisal, in either case pursuant to the DGCL, shall be
deemed to be converted as of the Effective Time of the Merger into the right to
receive the Merger Consideration. The Company shall give Parent (i) prompt
notice of any written demands for appraisal of shares of Park Common Stock
received by the Company, and (ii) the opportunity to direct all negotiations
and proceedings with respect to any such demands. The Company shall not,
without the prior written consent of Parent, voluntarily make any payment with
respect to, or settle, offer to settle or otherwise negotiate, any such
demands.
SECTION 2.02. Exchange of Certificates and Merger Consideration.
(a) Exchange Agent. Prior to the Effective Time of the Merger,
Parent shall appoint Wachovia Bank and Trust Company, N.A., of Raleigh, North
Carolina, as exchange agent (the "Exchange Agent") for the exchange of the
Merger Consideration upon surrender of certificates representing Park Common
Stock.
(b) Parent To Provide Merger Consideration. Parent shall take all
steps necessary to provide to the Exchange Agent at or before the Effective
Time of the Merger all the Merger Consideration payable in exchange for all of
the outstanding shares of Park Common Stock pursuant to Section 2.01, and
thereafter from time to time, upon receiving notice that a Dissenting
Shareholder has withdrawn his demand for appraisal or lost his right of
appraisal, in either case pursuant to the DGCL, shall promptly take all steps
to provide to the Exchange Agent all the funds payable in exchange for the
shares of Park Common Stock of such Dissenting Shareholder pursuant to Section
2.01(d), taking into account any advance payments theretofore made to such
Dissenting Shareholder.
(c) Exchange Procedure. As soon as reasonably practicable after
the Effective Time of the Merger, the Exchange Agent shall mail to each holder
of record of a certificate or certificates which immediately prior to the
Effective Time of the Merger represented issued and outstanding shares of Park
Common Stock (the "Certificates") whose shares were converted into the right to
receive the Merger Consideration pursuant to Section 2.01 (i) a letter of
transmittal (which shall specify that delivery shall be effected, and risk of
loss and title to the Certificates shall pass, only upon delivery of the
Certificates to the Exchange Agent and such letter of transmittal shall be in a
form and have such other provisions as Parent may reasonably specify), and (ii)
instructions for use in effecting the delivery and surrender of the
Certificates in exchange for the Merger Consideration. Upon surrender of a
Certificate for cancellation to the Exchange Agent or to such other agent or
agents as may be appointed by the Parent, together with such letter of
transmittal, duly executed, and such other documents as may reasonably be
required by the Exchange Agent, the holder of such Certificate shall be
entitled to receive in exchange therefor the Merger Consideration into which
the shares of Park Common Stock theretofore represented by such Certificate
shall have been converted pursuant to Section 2.01 and the Certificate so
surrendered shall forthwith be cancelled. In the event of a transfer of
ownership of Park Common Stock which is not registered in the transfer records
of the Company, payment may be made to a person other than the person in whose
name the Certificate so surrendered is registered, if such Certificate shall be
properly endorsed or otherwise be in proper form for transfer and the person
requesting such payment shall pay any transfer or other taxes required by
reason of the payment to a person other than the registered holder of such
Certificate or establish to the satisfaction of the Surviving Corporation that
such tax has been paid or is not applicable. Until surrendered as contemplated
by this Section 2.02, each Certificate shall be deemed at any time after the
Effective Time of the Merger to represent only the right to receive upon such
surrender the Merger Consideration, without interest, into which the shares of
Park Common Stock theretofore represented by such Certificate shall have been
converted pursuant to Section 2.01. No interest will be paid or will accrue on
the Merger Consideration upon the surrender of any Certificate.
(d) No Further Ownership Rights in Park Common Stock. All Merger
Consideration paid upon the surrender of Certificates in accordance with the
terms of this Article II shall be deemed to have been paid in full satisfaction
of all rights pertaining to the shares of Park Common Stock theretofore
represented by such Certificates, subject, however, to the Surviving
Corporation's obligation to pay any dividends or make any other distributions
with a record date prior to the Effective Time of the Merger which may have
been declared or were to be made by the Company on such shares of Park Common
Stock in accordance with the terms of this Agreement or prior to the date of
this Agreement and which remain unpaid at the Effective Time of the Merger and
have not been paid prior to surrender, and there shall be no further
registration of transfers on the stock transfer books of the Surviving
Corporation of the shares of Park Common Stock which were outstanding
immediately prior to the Effective Time of the Merger. If, after the Effective
Time of the Merger, Certificates are presented to the Surviving Corporation for
any reason, they shall be cancelled and exchanged as provided in this Article
II.
(e) No Liability. None of Parent, Sub, the Company or the Exchange
Agent shall be liable to any person in respect of any Merger Consideration
delivered to a public official pursuant to any applicable abandoned property,
escheat or similar law. If any Certificates shall not have been surrendered
prior to three years after the Effective Time of the Merger (or immediately
prior to such earlier date on which any payment pursuant to this Article II
would otherwise escheat to or become the property of any Governmental Entity
(as defined in Section 3.01(d))), the payment in respect of such Certificates
shall, to the extent permitted by applicable law, become the property of the
Surviving Corporation, free and clear of all claims or interest of any person
previously entitled thereto.
ARTICLE III
Representations and Warranties
SECTION 3.01. Representations and Warranties of the Company. The Company
represents and warrants to Parent and Sub as follows:
(a) Organization, Standing and Corporate Power. Each of the
Company and each of its Subsidiaries is a corporation, duly organized, validly
existing and in good standing under the laws of the jurisdiction in which it is
incorporated and has the requisite corporate power and authority to carry on
its business as now being conducted, except where the failure to be so
organized, existing or in good standing or to have such power would not,
individually or in the aggregate, have a material adverse effect (as defined in
Section 9.03) on the Company and its Subsidiaries taken as a whole. Each of
the Company and its Subsidiaries is duly qualified or licensed to do business
and is in good standing in each jurisdiction in which the nature of its
business or the ownership or leasing of its properties makes such qualification
or licensing necessary, other than in such jurisdictions where the failure to
be so qualified or licensed (individually or in the aggregate) would not have a
material adverse effect on the Company and its Subsidiaries taken as a whole.
The Company will prior to the Closing deliver to Parent complete and correct
copies of its Certificate of Incorporation and By-laws and the certificates of
incorporation and by-laws of its Subsidiaries, in each case as amended to the
date of this Agreement.
(b) Subsidiaries. The disclosure schedule previously delivered by
the Company to Parent (the "Disclosure Schedule") lists each Subsidiary of the
Company. Except as set forth in the Disclosure Schedule, all the outstanding
shares of capital stock of each have been validly issued and are fully paid and
nonassessable and are owned by the Company, by another Subsidiary of the
Company or by the Company and another Subsidiary, free and clear of all
pledges, claims, liens, charges, encumbrances and security interests of any
kind or nature whatsoever (collectively, "Liens"). Except for the capital
stock of its Subsidiaries and except for the ownership interests set forth in
the Disclosure Schedule, the Company does not own, directly or indirectly, any
capital stock or other ownership interest in any corporation, partnership,
joint venture or other entity.
(c) Capital Structure. The authorized capital stock of the Company
consists of 32,000,000 shares of Park Common Stock. At the close of business
on September 30, 1994, (i) 20,720,745 shares of Park Common Stock were issued
and outstanding, (ii) no shares of Park Common Stock were held by the Company
in its treasury, (iii) 2,604,730 shares of Park Common Stock were reserved for
issuance pursuant to the terms of the Company's Convertible Debentures, and
(iv) 83,125 shares of Park Common Stock were reserved for issuance pursuant to
the Stock Plan. Except as set forth above, at the close of business on
September 30, 1994, no shares of capital stock or other voting securities of
the Company were issued, reserved for issuance or outstanding. All outstanding
shares of capital stock of the Company are, and all shares which may be issued
pursuant to the Stock Plan will be, when issued, duly authorized, validly
issued, fully paid and nonassessable and not subject to preemptive rights.
Except for the Convertible Debentures, as of the date of this Agreement, there
are no bonds, debentures, notes or other indebtedness of the Company having the
right to vote (or convertible into, or exchangeable for, securities having the
right to vote) on any matters on which shareholders of the Company may vote.
Except for the Stock Plan and the Convertible Debentures, as of the date of
this Agreement, there are no securities, options, warrants, calls, rights,
commitments, agreements, arrangements or undertakings of any kind to which the
Company or any of its Subsidiaries is a party or by which any of them is bound
obligating the Company or any of its Subsidiaries to issue, deliver or sell, or
cause to be issued, delivered or sold, additional shares of capital stock or
other voting securities of the Company or of any of its Subsidiaries or
obligating the Company or any of its Subsidiaries to issue, grant, extend or
enter into any such security, option, warrant, call, right, commitment,
agreement, arrangement or undertaking. As of the date of this Agreement, there
are no outstanding contractual obligations of the Company or any of its
Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital
stock of the Company or any of its Subsidiaries.
(d) Authority; Noncontravention. The Company has the requisite
corporate power and authority to enter into this Agreement and, subject to
approval of this Agreement by the Required Company Shareholder Vote (as defined
in Section 3.01 (l)), to consummate the transactions contemplated by this
Agreement. The execution and delivery of this Agreement by the Company and the
consummation by the Company of the transactions contemplated by this Agreement
have been duly authorized by all necessary corporate action on the part of the
Company, subject to approval of this Agreement by the Required Company
Shareholder Vote. This Agreement has been duly executed and delivered by the
Company and constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms. Except as set
forth in the Disclosure Schedule, the execution and delivery of this Agreement
does not, and the consummation of the transactions contemplated by this
Agreement and compliance with the provisions of this Agreement will not,
conflict with, or result in any violation of, or default (with or without
notice or lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any obligation or to the loss of a
material benefit under, or result in the creation of any Lien upon, any of the
properties or assets of the Company or any of its Subsidiaries under (i) the
Certificate of Incorporation or By-laws of the Company or the comparable
charter or organizational documents of any of its Subsidiaries, (ii) any loan
or credit agreement, note, bond, mortgage, indenture, lease or other agreement,
instrument, permit, concession, franchise or license applicable to the Company
or any of its Subsidiaries or their respective properties or assets, or (iii)
subject to the governmental filings and other matters referred to in the
following sentence, any judgment, order, decree, statute, law, ordinance, rule
or regulation applicable to the Company or any of its Subsidiaries or their
respective properties or assets, other than, in the case of clause (ii) or
(iii), any such conflicts, violations, defaults, rights or Liens that
individually or in the aggregate would not (x) have a material adverse effect
on the Company and its Subsidiaries taken as a whole, (y) impair the ability of
the Company to perform its obligations under this Agreement, or (z) prevent the
consummation of any of the transactions contemplated by this Agreement. No
consent, approval, order or authorization of, or registration, declaration or
filing with, any Federal, state or local government or any court,
administrative or regulatory agency or commission or other governmental
authority or agency, domestic or foreign (a "Governmental Entity"), is required
by or with respect to the Company or any of its Subsidiaries in connection with
the execution and delivery of this Agreement by the Company or the consummation
by the Company of the transactions contemplated by this Agreement, except for
(i) the filing of a premerger notification and report form by the Company under
the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the "HSR Act"), (ii)
the filing with the SEC of (x) a proxy statement relating to the approval by
the Company's shareholders of the transactions contemplated by this Agreement
(as amended or supplemented from time to time, the "Proxy Statement"), (y) the
filing of a report on a Form 8-K or other periodic report reporting the events
contemplated hereby, and (z) such reports under Section 13(a) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), as may be required in
connection with this Agreement and the transactions contemplated by this
Agreement, (iii) the filing of the Certificate of Merger with the Delaware
Secretary of State and appropriate documents with the relevant authorities of
other states in which the Company is qualified to do business, (iv) the FCC
Applications (as defined in Section 9.03) and such filings as may be required
by state and local governmental authorities, (v) such notices, filings and
consents as may be required under the Illinois Responsible Property Transfer
Act of 1988, the Indiana Responsible Property Transfer Law, or other similar
state laws, (vi) such filings as may be required in connection with the taxes
described in Section 5.09, and (vii) such other consents, approvals, orders,
authorizations, registrations, declarations and filings as are set forth in the
Disclosure Schedule.
(e) SEC Documents; Financial Statements; Undisclosed Liabilities.
The Company has filed all required reports, schedules, forms, statements and
other documents with the SEC since March 31, 1994 (the "Company Filed SEC
Documents"). As of their respective dates, the Company Filed SEC Documents
complied in all material respects with the requirements of the Securities Act
of 1933 (the "Securities Act") or the Exchange Act, as the case may be, and the
rules and regulations of the SEC promulgated thereunder applicable to such
Company Filed SEC Documents, and none of the Company Filed SEC Documents
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. Except to the extent that information contained in any Company
Filed SEC Document has been revised or superseded by a later Company Filed SEC
Document, none of the Company Filed SEC Documents contains any untrue statement
of a material fact or omits to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The financial
statements of the Company included in the Company Filed SEC Documents comply as
to form in all material respects with applicable accounting requirements and
the published rules and regulations of the SEC with respect thereto, have been
prepared in accordance with generally accepted accounting principles (except,
in the case of unaudited statements, as permitted by Form 10-Q of the SEC)
applied on a consistent basis during the periods involved (except as may be
indicated in the notes thereto) and fairly present the consolidated financial
position of the Company and its consolidated Subsidiaries as of the dates
thereof and the consolidated results of their operations and cash flows for the
periods then ended (subject, in the case of unaudited statements, to normal
year-end audit adjustments). Except as set forth in the Company Filed SEC
Documents or in the Disclosure Schedule, neither the Company nor any of its
Subsidiaries has any liabilities or obligations of any nature (whether accrued,
absolute, contingent or otherwise) required by generally accepted accounting
principles to be set forth on a consolidated balance sheet of the Company and
its consolidated Subsidiaries or in the notes thereto and which, individually
or in the aggregate, would have a material adverse effect on the Company and
its Subsidiaries taken as a whole.
(f) Information Supplied. None of the information supplied or to
be supplied by the Company for inclusion or incorporation by reference in the
Proxy Statement will, at the time the Proxy Statement is filed with the SEC or
at the time the Proxy Statement is first mailed to the Company's shareholders
or at the time of the meeting of the Company's shareholders held to vote on
approval and adoption of this Agreement, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading. The Proxy Statement
will comply as to form in all material respects with the requirements of the
Exchange Act and the rules and regulations thereunder, except that no
representation or warranty is made by the Company with respect to statements
made or incorporated by reference therein based on information supplied by
Parent or Sub for inclusion or incorporation by reference therein.
(g) Absence of Certain Changes or Events. Except as disclosed in
the Company Filed SEC Documents filed and publicly available prior to the date
of this Agreement, or as otherwise set forth in the Disclosure Schedule, since
the date of the most recent financial statements included in the Company Filed
SEC Documents, the Company has conducted its business only in the ordinary
course, and there has not been (i) any material adverse change (as defined in
Section 9.03) in the Company and its Subsidiaries taken as a whole, other than
changes after the date hereof relating to the economy in general or to the
Company's industry in general and not specifically relating to the Company or
any of its Subsidiaries, (ii) any declaration, setting aside or payment of any
dividend or other distribution (whether in cash, stock or property) with
respect to any of the Company's capital stock, (iii) any split, combination or
reclassification of any of the Company's capital stock or any issuance or the
authorization of any issuance of any other securities in respect of, in lieu of
or in substitution for shares of the Company's capital stock, (iv) (x) any
granting by the Company or any of its Subsidiaries to any executive officer of
the Company or any of its Subsidiaries of any increase in compensation, except
in the ordinary course of business consistent with prior practice or as
required under employment agreements in effect as of the date of this
Agreement, (y) any granting by the Company or any of its Subsidiaries to any
such executive officer of any increase in severance or termination pay, except
as required under employment, severance or termination agreements or plans in
effect as of the date of this Agreement, or (z) any entry by the Company or any
of its Subsidiaries into any employment, severance or termination agreement
with any such executive officer, (v) any damage, destruction or loss, whether
or not covered by insurance, that has or could have a material adverse effect
on the Company and its Subsidiaries taken as a whole, or (vi) any change in
accounting methods, principles or practices by the Company materially affecting
its assets, liabilities or business, except insofar as may have been required
by a change in generally accepted accounting principles.
(h) Litigation. Except as disclosed in the Company Filed SEC
Documents or in the Disclosure Schedule, there is no suit, action or proceeding
pending or, to the knowledge of the Company, threatened against or affecting
the Company or any of its Subsidiaries (and the Company is not aware of any
basis for any such suit, action or proceeding) that, individually or in the
aggregate, could reasonably be expected to (i) have a material adverse effect
on the Company and its Subsidiaries taken as a whole, (ii) impair the ability
of the Company to perform its obligations under this Agreement, or (iii)
prevent the consummation of any of the transactions contemplated by this
Agreement, nor is there any judgment, decree, injunction, rule or order of any
Governmental Entity or arbitrator outstanding against the Company or any of its
Subsidiaries having, or which, insofar as reasonably can be foreseen, in the
future would have, any such effect.
(i) Absence of Changes in Benefit Plans. Except to the extent
necessary to qualify or remain qualified under Section 401 of the Internal
Revenue Code of 1986, as amended (the "Code"), since the date of this
Agreement, there has not been any adoption or amendment in any material respect
by the Company or any of its Subsidiaries of any collective bargaining
agreement or any bonus, pension, profit sharing, deferred compensation,
incentive compensation, stock ownership, stock purchase, stock option, phantom
stock, retirement, vacation, severance, disability, death benefit,
hospitalization, medical, or other plan, arrangement, or understanding (whether
or not legally binding) providing benefits to any current or former employee,
officer or director of the Company or any of its Subsidiaries (collectively,
"Benefit Plans"). Except as disclosed in the Company Filed SEC Documents or in
the Disclosure Schedule, there exist no employment, consulting, severance,
termination or indemnification agreements, arrangements or under standings
between the Company or any of its Subsidiaries and any current or former
employee, officer or director of the Company or any of its Subsidiaries which
require aggregate annual payments or total payments over the life of such
agreement, arrangement or understanding to such employee, officer or director
in excess of $1,000,000, $100,000, or $25,000 respectively.
(j) ERISA Compliance.
(i) The Disclosure Schedule contains a list of all "employee
pension benefit plans" (as defined in Section 3(2) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA")) (sometimes referred to
herein as "Pension Plans"), "employee welfare benefit plans" (as defined in
Section 3(1) of ERISA), and all other Benefit Plans maintained, or contributed
to, by the Company or any of its Subsidiaries for the benefit of any current or
former employees, officers or directors of the Company or any of its
Subsidiaries. The Company has delivered to Parent true, complete and correct
copies of (x) each Benefit Plan (or, in the case of any unwritten Benefit
Plans, descriptions thereof), (y) the most recent annual report on Form 5500
filed with the Internal Revenue Service with respect to each Benefit Plan (if
any such report was required), and (z) each trust agreement and group annuity
contract relating to any Benefit Plan.
(ii) Except as disclosed in the Disclosure Schedule, all Pension
Plans have been the subject of determination letters from the Internal Revenue
Service to the effect that such Pension Plans are qualified and exempt from
Federal income taxes under Sections 401(a) and 501(a), respectively, of the
Code and no such determination letter has been revoked nor, to the knowledge of
the Company, has revocation been threatened, nor has any such Pension Plan been
amended since the date of its most recent determination letter or application
therefor in any respect that would adversely affect its qualification or
materially increase its costs.
(iii) No Pension Plan that the Company or any of its
Subsidiaries maintains, or to which the Company or any of its Subsidiaries is
obligated to contribute is a "multiemployer plan" (as such term is defined in
Section 4001(a)(3) of ERISA) and no Pension Plan that the Company or any of its
Subsidiaries maintains, or to which the Company or any of its Subsidiaries is
obligated to contribute, has an "accumulated funding deficiency" (as such term
is defined in Section 302 of ERISA or Section 412 of the Code), whether or not
waived. None of the Company, any of its Subsidiaries, any officer of the
Company or any of its Subsidiaries or any of the Benefit Plans which are
subject to ERISA, including the Pension Plans, any trusts created thereunder or
any trustee or administrator thereof, has to the best of the Company's
knowledge engaged in a "prohibited transaction" (as such term is defined in
Section 406 of ERISA or Section 4975 of the Code) or any other breach of
fiduciary responsibility that could subject the Company, any of its
Subsidiaries or any officer of the Company or any of its Subsidiaries, to the
tax or penalty on prohibited transactions imposed by Section 4975 of the Code
or to any liability under Section 502(i) or (l) of ERISA. Except as set forth
in the Disclosure Schedule, neither any of such Benefit Plans nor any of such
trusts has been terminated, nor has there been any "reportable event" (as that
term is defined in Section 4043 of ERISA) with respect thereto, during the last
five years.
(iv) With respect to any Benefit Plan that is an employee
welfare benefit plan, except as disclosed in the Disclosure Schedule, (x) no
such Benefit Plan is unfunded or funded through a "welfare benefits fund", as
such term is defined in Section 419(e) of the Code, (y) each such Benefit Plan
that is a "group health plan", as such term is defined in Section 5000(b)(1) of
the Code, is in material compliance with the applicable requirements of Section
4980B(f) of the Code, and (z) each such Benefit Plan (including any such
Benefit Plan covering retirees or other former employees) may be amended or
terminated without material liability to the Company or any of its Subsidiaries
on or at any time after the Effective Time of the Merger.
(v) The Disclosure Schedule discloses any funding liability
under each Benefit Plan not subject to ERISA Title IV, whether insured or
otherwise, specifically setting forth any liabilities under any retiree medical
arrangement and specifically designating any insured plan which provides for
retroactive premium or other adjustments. The levels of insurance reserves and
accrued liabilities with regard to each such Benefit Plan are reasonable and
are sufficient to provide for all incurred but unreported claims in any
retroactive premium adjustments.
(vi) Except as disclosed in the Disclosure Schedule, (x) the
Company and each of its Subsidiaries has made full and timely payment of all
amounts required to be contributed under the terms of each Benefit Plan and
applicable law, or required to be paid as expenses under such Benefit Plan, and
(y) no excise or penalty taxes are assessable as a result of any nondeductible
or other contributions made or not made to a Benefit Plan.
(vii) Other than claims for benefits arising in the ordinary
course of the administration and operation of the Benefit Plans, no claims,
investigations, or arbitrations are pending or threatened against any Benefit
Plan or against the Company, any Subsidiary, any trust or arrangement created
under or as part of any Benefit Plan, any trustee, fiduciary, custodian,
administrator, or other person or entity holding or controlling assets of any
Benefit Plan, and no basis to anticipate any such claim or claims exists.
(viii) Except as set forth in the Disclosure Schedule, neither
the execution of this Agreement nor the consummation of the transactions
contemplated by this Agreement will (x) accelerate the time of payment or
vesting, or increase the amount, of compensation or benefits due under any
Benefit Plan, (y) constitute or result in a prohibited transaction with respect
to any Benefit Plan under Section 4975 of the Code or ERISA Sections 406 or 407
for which an exemption is not available, or (z) constitute a "deemed severance"
or "deemed termination" under any Benefit Plan or with respect to any Benefit
Plan under any applicable law.
(k) Taxes. Except as set forth in the Disclosure Schedule, each of
the Company and each of its Subsidiaries has filed all tax returns and reports
required to be filed by it and has paid (or the Company has paid on its behalf)
all taxes required to be paid by it, and the most recent financial statements
contained in the Company Filed SEC Documents reflect an adequate reserve for
all material taxes payable by the Company and its Subsidiaries for all taxable
periods and portions thereof through the date of such financial statements.
Except as set forth in the Disclosure Schedule, no deficiencies for any taxes
have been proposed, asserted or assessed against the Company or any of its
Subsidiaries, and no requests for waivers of the time to assess any such taxes
are pending. The Federal income tax returns of the Company and each of its
Subsidiaries consolidated in such returns have been examined by and settled
with the Internal Revenue Service for all calendar years through 1992. As used
in this Agreement, "taxes" shall include all Federal, state, local and foreign
income, property, sales, excise and other taxes, tariffs or governmental
charges of any nature whatsoever.
(l) Voting Requirements. The affirmative votes of the holders of
sixty-six percent (66%) of the outstanding shares of Park Common Stock (the
"Required Company Shareholder Vote") are the only votes of the holders of any
class or series of the Company's capital stock necessary to approve this
Agreement and the transactions contemplated by this Agreement.
(m) State Takeover Statutes. The Board of Directors of the Company
has approved the Merger and this Agreement, and such approval is sufficient to
render inapplicable to the Merger, this Agreement, and the transactions
contemplated by this Agreement the provisions of Section 203 of the DGCL. To
the best of the Company's knowledge, no other state takeover statute or similar
statute or regulation applies or purports to apply to the Merger, this
Agreement, or any of the transactions contemplated by this Agreement.
(n) Brokers; Schedule of Fees and Expenses. No broker, investment
banker, financial advisor or other person, other than Goldman, Sachs & Co., the
fees and expenses of which will be paid by the Company, is entitled to any
broker's, finder's, financial advisor's, or other similar fee or commission in
connection with the transactions contemplated by this Agreement based upon
arrangements made by or on behalf of the Company.
(o) Compliance with Laws.
(i) Except as set forth in the Disclosure Schedule, each of the
Company and each of its Subsidiaries has in effect all Federal, state, and
local governmental approvals, authorizations, certificates, filings,
franchises, licenses, notices, permits and rights ("Permits") necessary for it
to own, lease, or operate its properties and assets and to carry on its
business substantially as now conducted, and there has occurred no default
under any such Permit, except for the absence of Permits and for defaults under
Permits which absence or defaults, individually or in the aggregate, would not
have a material adverse effect on the Company and its Subsidiaries taken as a
whole. Except as disclosed in the Company Filed SEC Documents, or as otherwise
set forth in the Disclosure Schedule, the Company and its Subsidiaries are in
compliance with all applicable statutes, laws, ordinances, regulations, rules,
judgements, decrees, or orders of any Governmental Entity, except for possible
noncompliance which, individually or in the aggregate, would not have a
material adverse effect on the Company and its Subsidiaries taken as a whole.
(ii) Other than as set forth in the Disclosure Statement, the
Company does not know of any facts which would disqualify it under the
Communications Act from selling any Broadcast Subsidiaries. Except as set
forth in the Disclosure Schedule, there are no FCC citations against the
Broadcast Subsidiaries and there are no actions, suits, or proceedings pending
or, to the knowledge of the Company, threatened before the FCC or otherwise for
the cancellation, involuntary modification, or non-renewal of the FCC Licenses,
all of which are unimpaired, except for any such action, suit or proceeding
affecting the communications industry generally.
(iii) Except as set forth in the Disclosure Schedule, (x)
neither the Company nor any of its Subsidiaries has received any written
communication from a Governmental Entity alleging that the Company or any
Subsidiary was not in compliance in any material respect with, or had liability
under, any Environmental Laws (other than communications relating to matters
since resolved with the sender or which otherwise do not involve alleged
current non-compliance or liability), (y) each of the Company and each of its
Subsidiaries holds, and has complied with and is in compliance with, all
Permits required for the Company and each of its Subsidiaries to conduct their
respective businesses under Environmental Laws, and is in compliance with all
Environmental Laws, and (z) the Company has no knowledge of any environmental
materials or information other than as set forth in the Disclosure Schedule
which disclose an environmental liability which would have a material adverse
effect on the Company. As used in this Agreement, the term "Environmental
Laws" means, as of the Closing Date, any applicable treaties, laws,
regulations, enforceable requirements, orders, decrees or judgments issued,
promulgated, or entered into by any Governmental Entity, which relate to (x)
pollution or protection of the environment, or (y) Hazardous Materials (as
hereinafter defined) generation, storage, use, handling, disposal or
transportation, including the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. Sec. 9601 et seq.
("CERCLA"), the Resource Conservation and Recovery Act, as amended, 42 U.S.C.
Sec. 6901 et seq., the Federal Water Pollution Control Act, as amended, 33
U.S.C. Sec. 1251 et seq., the Clean Air Act of 1970, as amended, 42 U.S.C. Sec.
7401 et seq., the Toxic Substances Control Act of 1976, 15 U.S.C. Sec. 2601 et
seq., the Hazardous Materials Transportation Act, 49 U.S.C. Sec. 1801 et seq.,
the Occupational Safety and Health Act of 1970, as amended, 29 U.S.C. Sec. 541
et seq., and any similar or implementing state or local law, and all amendments
or regulations promulgated thereunder. As used in this Agreement, the term
"Hazardous Materials" means all explosive or regulated radioactive materials or
substances, hazardous or toxic substances, wastes or chemicals, petroleum or
petroleum distillates, asbestos or asbestos containing materials, and all other
materials or chemicals regulated pursuant to any Environmental Law, including
materials listed in 49 C.F.R. Sec. 172.101 and materials defined as hazardous
pursuant to Section 101(14) of CERCLA.
(p) Contracts; Debt Instruments.
(i) Neither the Company nor any of its Subsidiaries is in
violation of or in default under (nor does there exist any condition which upon
the passage of time or the giving of notice would cause such a violation of or
default under) any loan or credit agreement, note, bond, mortgage, indenture,
lease, permit, concession, franchise, license or any other contract, agreement,
arrangement or understanding, to which it is a party or by which it or any of
its properties or assets is bound, except as set forth in the Disclosure
Schedule and except for violations or defaults that would not, individually or
in the aggregate, result in a material adverse effect on the Company and its
Subsidiaries taken as a whole.
(ii) Set forth in the Disclosure Schedule is (x) a list of all
loan or credit agreements, notes, bonds, mortgages, indentures and other
agreements and instruments pursuant to which any indebtedness of the Company or
any of its Subsidiaries in an aggregate principal amount in excess of
$1,000,000 is outstanding or may be incurred, and (y) the respective principal
amounts currently outstanding thereunder. For purposes of this Section
3.01(p)(ii), "indebtedness" shall mean, with respect to any person, without
duplication, (A) all obligations of such person for borrowed money, or with
respect to deposits or advances of any kind to such person, (B) all obligations
of such person evidenced by bonds, debentures, notes or similar instruments,
(C) all obligations of such person upon which interest charges are customarily
paid, (D) all obligations of such person under conditional sale or other title
retention agreements relating to property purchased by such person, (E) all
obligations of such person issued or assumed as the deferred purchase price of
property or services (excluding obligations of such person to creditors for raw
materials, inventory, services, and supplies incurred in the ordinary course of
such person's business), (F) all capitalized lease obligations of such person,
(G) all obligations of others secured by any lien on property or assets owned
or acquired by such person, whether or not the obligations secured thereby have
been assumed, (H) all obligations of such person under interest rate or
currency hedging transactions (valued at the termination value thereof), (I)
all letters of credit issued for the account of such person (excluding letters
of credit issued for the benefit of suppliers to support accounts payable to
suppliers incurred in the ordinary course of business), and (J) all guarantees
and arrangements having the economic effect of a guarantee of such person of
any indebtedness of any other person.
(q) Title to Properties.
(i) Except as set forth in the Disclosure Schedule, each of the
Company and each of its Subsidiaries has good and marketable title to, or valid
leasehold interests in, all of its properties and assets, except for such as
are no longer used or useful in the conduct of its businesses or as have been
disposed of in the ordinary course of business and except for defects in title,
easements, restrictive covenants, and similar encumbrances or impediments that,
in the aggregate, do not and will not materially interfere with its ability to
conduct its business as currently conducted. All such assets and properties,
other than assets and properties in which the Company or any of its
Subsidiaries has a leasehold interest, are free and clear of all Liens other
than those set forth in the Disclosure Schedule and except for Liens that, in
the aggregate, do not and will not materially interfere with the ability of the
Company and its Subsidiaries to conduct business as currently conducted.
(ii) Except as set forth in the Disclosure Schedule, each of the
Company and each of its Subsidiaries has complied in all material respects with
the terms of all material leases to which it is a party and under which it is
in occupancy, and all such leases are in full force and effect. Each of the
Company and each of its Subsidiaries enjoys peaceful and undisturbed possession
under all such material leases.
(r) Intellectual Property. The Company and its Subsidiaries own,
or are validly licensed or otherwise have the right to use, all patents, patent
rights, trademarks, trademark rights, trade names, trade name rights, service
marks, service mark rights, copyrights, and other proprietary intellectual
property rights and computer programs (collectively, "Intellectual Property
Rights") which are material to the conduct of the business of the Company and
its Subsidiaries taken as a whole. The Disclosure Schedule sets forth a
description of all Intellectual Property Rights which are material to the
conduct of the business of the Company and its Subsidiaries taken as a whole.
Except as set forth in the Disclosure Schedule, no claims are pending or, to
the knowledge of the Company, threatened that the Company or any of its
Subsidiaries is infringing or otherwise adversely affecting the rights of any
person with regard to any Intellectual Property Right. To the knowledge of the
Company, except as set forth in the Disclosure Schedule, no person is
infringing the rights of the Company or any of its Subsidiaries with respect to
any Intellectual Property Right.
SECTION 3.02. Representations and Warranties of Parent and Sub. Parent
and Sub represent and warrant to the Company as follows:
(a) Organization, Standing and Corporate Power. Each of Parent and
Sub is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction in which it is incorporated and has the
requisite corporate power and authority to carry on its business as now being
conducted. Parent has provided the Company with complete and correct copies of
its and Sub's Certificate of Incorporation and By-laws, in each case as amended
to the date of this Agreement.
(b) Capital Structure. As of the date of this Agreement, the
authorized capital stock of Sub consists of 300 shares of common stock, par
value $1.00 per share, all of which have been validly issued, are fully paid
and nonassessable and are owned by Parent free and clear of any Liens.
(c) Authority; Noncontravention. Parent and Sub have all requisite
corporate power and authority to enter into this Agreement and to consummate
the transactions contemplated by this Agreement. The execution and delivery of
this Agreement and the consummation of the transactions contemplated by this
Agreement have been duly authorized by all necessary corporate action on the
part of Parent and Sub. This Agreement has been duly executed and delivered by
Parent and Sub and constitutes a valid and binding obligation of Parent and
Sub, enforceable against each of them in accordance with its terms. The
execution and delivery of this Agreement do not, and the consummation of the
transactions contemplated by this Agreement and compliance with the provisions
of this Agreement will not, conflict with, or result in any violation of, or
default (with or without notice or lapse of time, or both) under, or give rise
to a right of termination, cancellation or acceleration of any obligation or to
the loss of a material benefit under, or result in the creation of any Lien
upon any of the properties or assets of Parent or any of its Subsidiaries under
(i) the certificate of incorporation or by-laws of Parent or Sub or the
comparable charter or organizational documents of any other Subsidiary of
Parent, (ii) any loan or credit agreement, note, bond, mortgage, indenture,
lease or other agreement, instrument, permit, concession, franchise, or license
applicable to Parent or Sub or their respective properties or assets, or (iii)
subject to the governmental filings and other matters referred to in the
following sentence, any judgment, order, decree, statute, law, ordinance, rule,
or regulation applicable to Parent, Sub, or any other Subsidiary of Parent or
their respective properties or assets, other than, in the case of clause (ii)
or (iii), any such conflicts, violations, defaults, rights or Liens that
individually or in the aggregate would not (x) have a material adverse effect
on Parent and its Subsidiaries taken as a whole, (y) impair the ability of
Parent and Sub to perform their respective obligations under this Agreement, or
(z) prevent the consummation of any of the transactions contemplated by this
Agreement. No consent, approval, order or authorization of, or registration,
declaration or filing with, any Govern mental Entity is required by or with
respect to Parent, Sub or any other Subsidiary of Parent in connection with the
execution and delivery of this Agreement or the consummation by Parent or Sub,
as the case may be, of any of the transactions contemplated by this Agreement,
except for (i) the filing of a premerger notification and report form under the
HSR Act, (ii) the filing with the SEC of such reports under Section 13(a) of
the Exchange Act as may be required in connection with this Agreement and the
transactions contemplated by this Agreement, (iii) the filing of the
Certificate of Merger with the Delaware Secretary of State and appropriate
documents with the relevant authorities of other states in which the Company is
qualified to do business, (iv) such filings with the FCC as may be required
under the Communications Act and such filings as may be required by state and
local governmental authorities, (v) such filings as may be required in
connection with the taxes described in Section 5.09, (vi) such notices, filings
and consents as may be required under the Illinois Responsible Property
Transfer Act of 1988, the Indiana Responsible Property Transfer Law, or other
similar state laws, and (vii) such other consents, approvals, orders,
authorizations, registrations, declarations and filings as may be required
under the "takeover" or "blue sky" laws of various states.
(d) Information Supplied. None of the information supplied or to
be supplied by Parent or Sub for inclusion or incorporation by reference in the
Proxy Statement will, at the date the Proxy Statement is first mailed to the
Company's shareholders or at the time of the meeting of the Company's
shareholders held to vote on approval and adoption of this Agreement, contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made, not
misleading.
(e) Litigation. Except as disclosed in the Disclosure Schedule or
in any document filed by Parent with the SEC since March 31, 1994 and publicly
available prior to the date of this Agreement, there is no suit, action or
proceeding pending or, to the knowledge of Parent, threatened against or
affecting Parent or any of its Subsidiaries that, individually or in the
aggregate, could reasonably be expected to (i) impair in any material respect
the ability of Parent to perform its obligations under this Agreement, or (ii)
prevent the consummation of any of the transactions contemplated by this
Agreement, nor is there any judgment, decree, injunction, rule, or order of any
Governmental Entity or arbitrator outstanding against Parent or any of its
Subsidiaries having, or which is reasonably likely to have, any such effect.
(f) Voting Requirements. No vote of the holders of any class or
series of the capital stock of either Parent or Sub is necessary to approve
this Agreement or the transactions contemplated by this Agreement.
(g) Brokers. No broker, investment banker, financial advisor or
other person, the fees and expenses of which will be paid by Parent, is
entitled to any broker's, finder's, financial advisor's or other similar fee or
commission in connection with the transactions contemplated by this Agreement
based upon arrangements made by or on behalf of Parent or Sub.
(h) Financing. Parent and Sub have funds available on hand or
available pursuant to binding commitments from financing sources sufficient to
consummate the Merger on the terms contemplated by this Agreement, and, at the
Effective Time of the Merger, Parent and Sub will have available all of the
funds necessary, (x) to satisfy their respective obligations under this
Agreement, and (y) to pay all the related fees and expenses in connection with
the foregoing. Parent has provided to the Company true and correct copies of
all commitment letters and other evidence satisfactory to the Company that
Parent has such sufficient funds. Parent and Sub will use their best efforts
to complete and satisfy all conditions to lending under such financing
commitments.
(i) FCC Applications. Except as set forth in the Disclosure
Schedule and in Section 5.10, Parent and Sub know of no facts or circumstances
as to their respective qualifications that might delay routine consent to the
FCC Applications under delegated authority at the FCC staff level. Except as
set forth in Section 5.10, Parent and Sub further represent and warrant that no
waiver of the FCC's rules is necessary to obtain the FCC Consent (as defined in
Section 9.03).
ARTICLE IV
Covenants Relating to Conduct of Business
SECTION 4.01. Conduct of Business.
(a) Conduct of Business by the Company. During the period from the
date of this Agreement to the Effective Time of the Merger, the Company shall,
and shall cause each of its Subsidiaries to, carry on its respective business
in the usual, regular and ordinary course in substantially the same manner as
heretofore conducted and, to the extent consistent therewith, use all
reasonable efforts to preserve intact its current business organization, keep
available the services of its current officers and employees and preserve its
relationships with customers, suppliers, licensors, licensees, distributors,
and others having business dealings with it to the end that its goodwill and
ongoing businesses shall be unimpaired at the Effective Time of the Merger.
Without limiting the generality of the foregoing, during the period from the
date of this Agreement to the Effective Time of the Merger, without the prior
written consent of Parent, the Company shall not, and shall not permit any of
its Subsidiaries to:
(i) (x) declare, set aside, or pay any dividends on, or make any
other distributions in respect of, any of its capital stock, other than
dividends and distributions by any direct or indirect wholly owned Subsidiary
of the Company to its parent, (y) split, combine, or reclassify any of its
capital stock or issue or authorize the issuance of any other securities in
respect of, in lieu of, or in substitution for shares of its capital stock, or
(z) purchase, redeem or otherwise acquire any shares of capital stock of the
Company or any of its Subsidiaries or any other securities thereof or any
rights, warrants, or options to acquire any such shares or other securities;
(ii) issue, deliver, sell, pledge or otherwise encumber any
shares of its capital stock, any other voting securities or any securities
convertible into, or any rights, warrants or options to acquire, any such
shares, voting securities or convertible securities (other than the issuance of
Park Common Stock upon (x) the conversion of the Convertible Debentures, and
(y) the exercise of Employee Stock Options (as defined in Section 5.04(a)), in
each case outstanding on the date of this Agreement and in accordance with
their present terms);
(iii) amend its certificate of incorporation, by-laws or other
comparable charter or organizational documents;
(iv) acquire or agree to acquire (x) by merging or consolidating
with, or by purchasing a substantial portion of the assets of, or by any other
manner, any business or any corporation, partnership, joint venture,
association or other business organization or division thereof, or (y) any
assets that are material, individually or in the aggregate, to the Company and
its Subsidiaries taken as a whole, except purchases of inventory and other
assets in the ordinary course of business consistent with past practice and
capital expenditures permitted by clause (vii) below;
(v) mortgage or otherwise encumber or subject to any Lien or,
except in the ordinary course of business consistent with past practice, sell,
lease or otherwise dispose of any of its material properties or assets;
(vi) (x) incur any indebtedness for borrowed money or guarantee
any such indebtedness of another person, issue or sell any debt securities or
warrants or other rights to acquire any debt securities of the Company or any
of its Subsidiaries, guarantee any debt securities of another person, enter
into any "keep well" or other agreement to maintain any financial statement
condition of another person or enter into any arrangement having the economic
effect of any of the foregoing, except for short-term borrowings incurred in
the ordinary course of business consistent with past practice, or (y) make any
loans, advances or capital contributions to, or investments in, any other
person, other than to the Company or any direct or indirect wholly owned
Subsidiary of the Company;
(vii) except for the purchase of certain property listed on the
Disclosure Schedule, make or agree to make any new capital expenditures which
in the aggregate are in excess of $2,000,000;
(viii) settle or compromise any Federal income tax liability
that is material to the Company and its Subsidiaries taken as a whole;
(ix) pay, discharge or satisfy any claims, liabilities or
obligations (absolute, accrued, asserted or unasserted, contingent or
otherwise), other than the payment, discharge or satisfaction, in the ordinary
course of business consistent with past practice or in accordance with their
terms, of liabilities reflected or reserved against in, or contemplated by, the
most recent consolidated financial statements (or the notes thereto) of the
Company included in the Company Filed SEC Documents or incurred in the ordinary
course of business consistent with past practice, or waive the benefits of, or
agree to modify in any manner, any confidentiality, standstill or similar
agreement to which the Company or any of its Subsidiaries is a party; or
(x) authorize any of, or commit or agree to take any of, the
foregoing actions.
(b) Other Actions. The Company and Parent shall not, and shall not
permit any of their respective Subsidiaries to, take any action that would
result in (i) any of the representations and warranties of such party set forth
in this Agreement that are qualified as to materiality becoming untrue, (ii)
any of the representations and warranties of such party that are not so
qualified becoming untrue in any material respect, or (iii) except as
contemplated by Section 7.01(a), any of the conditions to the Merger set forth
in Article VI not being satisfied.
(c) Control of the Stations. Pending Closing, control of the
Stations shall remain with the Company. Company, Parent, and Sub acknowledge
and agree that neither Parent nor Sub nor any of its employees, agents, or
representatives, directly or indirectly, shall, or have any right to, control,
direct, or otherwise supervise, or attempt to control, direct, or otherwise
supervise the Stations, it being understood that supervision of all programs,
equipment, operations and other activities of the Stations shall be the sole
responsibility, and at all times prior to the Closing Date remain with the
complete control and discretion, of the Company, subject to the terms of
Section 4.01(a) above.
ARTICLE V
Additional Agreements
SECTION 5.01. Shareholder Approval; Preparation of Proxy Statement.
(a) The Company shall duly call, give notice of, convene and hold a
meeting of its shareholders (the "Company Shareholders Meeting") for the
purpose of approving this Agreement and the transactions contemplated by this
Agreement. The Company will, through its Board of Directors, recommend to its
shareholders approval of this Agreement and the transactions contemplated by
this Agreement, except, to the extent that the Board of Directors of the
Company shall have withdrawn or modified its approval or recommendation of this
Agreement or the Merger as contemplated by Section 7.01(a).
(b) As promptly as practicable, the Company shall prepare and file
the Proxy Statement with the SEC. The Company will use its best efforts to
cause the Proxy Statement to be mailed to the Company's shareholders as
promptly as practicable.
(c) Parent agrees to cause all shares of Park Common Stock owned by
it, Sub or any other Subsidiary of Parent to be voted in favor of the approval
of this Agreement.
SECTION 5.02. Access to Information; Confidentiality. The Company shall,
and shall cause each of its Subsidiaries to, afford to Parent, and to Parent's
officers, employees, accountants, counsel, financial advisers and other
representatives, reasonable access, during normal business hours during the
period prior to the Effective Time of the Merger, to their respective
properties, books, contracts, commitments, personnel, and records and, during
such period, the Company shall, and shall cause each of its Subsidiaries to,
furnish promptly to Parent (i) a copy of each report, schedule, registration
statement and other document filed by it during such period pursuant to the
requirements of Federal or state securities laws, and (ii) all other
information concerning its business, properties, and personnel as Parent may
reasonably request. Parent will hold, and will cause its Representatives (as
defined in the Confidentiality Agreement dated June 13, 1994 (the
"Confidentiality Agreement") between the Company and Retirement Systems of
Alabama), to hold, any Evaluation Material (as defined in the Confidentiality
Agreement) in confidence in accordance with the terms of the Confidentiality
Agreement and, in the event of termination of this Agreement for any reason,
Parent shall promptly return or destroy, or cause to be returned or destroyed,
all Evaluation Material in accordance with the terms of the Confidentiality
Agreement.
SECTION 5.03. Reasonable Efforts; Notification.
(a) Upon the terms and subject to the conditions set forth in this
Agreement, unless, as contemplated by Section 7.01(a), the Board of Directors
of the Company approves or recommends a superior acquisition proposal, each of
the parties agrees to use all reasonable efforts to take, or cause to be taken,
all actions, and to do, or cause to be done, and to assist and cooperate with
the other parties in doing, all things necessary, proper, or advisable to
consummate and make effective, in the most expeditious manner practicable, the
Merger, and the other transactions contemplated by this Agreement, including
(i) the obtaining of all necessary actions or nonactions, waivers, consents,
and approvals from Governmental Entities and the making of all necessary
registrations and filings (including filings with Governmental Entities, if
any) and the taking of all reasonable steps as may be necessary to obtain an
approval or waiver from, or to avoid an action or proceeding by, any
Governmental Entity, (ii) the obtaining of all necessary consents, approvals,
or waivers from third parties, (iii) the defending of any lawsuits or other
legal proceedings, whether judicial or administrative, challenging this
Agreement or the consummation of any of the transactions contemplated by this
Agreement, including seeking to have any stay or temporary restraining order
entered by any court or other Governmental Entity vacated or reversed, and (iv)
the execution and delivery of any additional instruments necessary to
consummate the transactions contemplated by, and to fully carry out the
purposes of, this Agreement. In connection with and without limiting the
foregoing, the Company and its Board of Directors shall (i) take all action
necessary to ensure that no state takeover statute or similar statute or
regulation is or becomes applicable to the Merger, this Agreement, or any of
the other transactions contemplated by this Agreement, and (ii) if any state
takeover statute or similar statute or regulation becomes applicable to the
Merger, this Agreement, or any other transactions contemplated by this
Agreement, take all action necessary to ensure that the Merger and the other
transactions contemplated by this Agreement may be consummated as promptly as
practicable on substantially the terms contemplated by this Agreement and
otherwise to minimize the effect of such statute or regulation on the Merger
and the other transactions contemplated by this Agreement. Notwithstanding the
foregoing, the Board of Directors of the Company shall not be prohibited from
taking any action permitted by Section 7.01(a) or Section 8.01(c).
(b) Company, Parent and Sub agree to cooperate in the preparation of
the FCC Applications which will be filed with the FCC no later than 10 business
days following the date hereof. Each of the parties agrees diligently to take
all steps, including filing any necessary amendments, that are necessary,
proper or desirable to expedite the prosecution of the FCC Applications to a
favorable conclusion. Each of the parties shall promptly provide the other
parties with copies of any pleading, order or other document served on such
party relating to the FCC Applications. Each of the parties shall promptly
furnish all information requested by the FCC.
(c) The Company shall give prompt notice to Parent, and Parent or Sub
shall give prompt notice to the Company, of (i) any representation or warranty
made by it contained in this Agreement which has become untrue or inaccurate in
any material respect, or (ii) the failure by it to comply with or satisfy in
any material respect any covenant, condition, or agreement to be complied with
or satisfied by it under this Agreement; provided, however, that such
notification shall not excuse or otherwise affect the representations,
warranties, covenants, or agreements of the parties or the conditions to the
obligations of the parties under this Agreement.
SECTION 5.04. Stock Options.
(a) As soon as practicable following the date of this Agreement, the
Board of Directors of the Company or, if appropriate, any committee
administering the Company's stock purchase plan (the "Stock Plan"), shall adopt
such resolutions or take such other actions as are required to adjust the terms
of all outstanding employee stock options to purchase shares of Park Common
Stock ("Employee Stock Options") heretofore granted under the Stock Plan to
provide that each Employee Stock Option outstanding immediately prior to the
Effective Time of the Merger shall be vested and exercisable.
(b) The Stock Plan shall terminate as of the Effective Time of the
Merger, and the provisions in any other Benefit Plan providing for the
issuance, transfer or grant of any capital stock of the Company or any interest
in respect of any capital stock of the Company shall be deleted as of the
Effective Time of the Merger. The Company shall take all steps necessary to
ensure that following the Effective Time of the Merger, no holder of an
Employee Stock Option or any participant in the Stock Plan or any other Benefit
Plan shall have any right thereunder to acquire any capital stock of the
Company or the Surviving Corporation.
SECTION 5.05. Benefit Plans; Noncompetition Agreements.
(a) Except as provided in Section 5.04(b), Parent will cause the
Surviving Corporation to maintain for a period of three years after the
Effective Time of the Merger the Benefit Plans of the Company and its
Subsidiaries in effect on the date of this Agreement, including the plans for
the Key Executive Officers (as defined in Section 9.03) and the home purchase
agreement for the Key Executive Officers (copies of which are included in the
Disclosure Schedule), or to provide benefits to employees of the Company and
its Subsidiaries that are no less favorable in the aggregate to such employees
than those in effect on the date of this Agreement. Parent agrees that it will
enter into discussions with the Key Executive Officers and the President of the
Company within 30 days of the date of this Agreement concerning the role of
such persons following the Closing and, no less than 30 days before the
Closing, Parent shall provide to such persons written confirmation of each such
person's employment status with the Surviving Corporation following the
Closing. Notwithstanding the foregoing, Parent will cause the Surviving
Corporation to assume and maintain the non-qualified retirement agreement, the
deferred compensation agreement, and the employment agreement between the
Company and the President of the Company (copies of which are included in the
Disclosure Schedule) (the "Contracts") until all payments under the Contracts
have been made to the President of the Company, his spouse, or other
beneficiary in accordance with the terms of the Contracts.
(b) Parent will cause the Surviving Corporation to assume and
maintain the noncompetition agreements (copies of which are included in the
Disclosure Schedule) between the Company and/or certain of its Subsidiaries,
and certain persons from whom the Company acquired the stock or assets of
certain of the Company's Subsidiaries (the "Noncompetition Agreements") until
all payments under the Noncompetition Agreements have been made in accordance
with the terms of such agreements.
(c) In the event of any dispute after the Effective Time of the
Merger between the Surviving Corporation or Parent, on the one hand, and any
person (a "Beneficiary") entitled to participate in any of the Benefit Plans or
Noncompetition Agreements referred to in Sections 5.05(a) and 5.05(b) above, on
the other hand, with respect to such Beneficiary's rights to any payment under
any such Benefit Plans or Noncompetition Agreements, the Surviving Corporation
shall (and Parent shall cause the Surviving Corporation to) pay all disputed
amounts to such Beneficiary and, if it is ultimately determined that such
Beneficiary was not entitled to all or a portion of such disputed amounts, such
Beneficiary shall repay to the Surviving Corporation the amount to which he or
she was not entitled, together with interest thereon at the current prime rate
as set forth in the Wall Street Journal. The Surviving Corporation and Parent
shall, jointly and severally, reimburse any Beneficiary for all reasonable
legal fees and expenses which such Beneficiary may incur as a result of the
Surviving Corporation or Parent contesting the validity or enforceability of
any provision of any of the Benefit Plans or Noncompetition Agreements or this
Section 5.05(c) or any claim by such Beneficiary hereunder or thereunder;
provided, however, that the Surviving Corporation or Parent shall be entitled
to be reimbursed by such Beneficiary for amounts previously paid under this
sentence to such Beneficiary if it is finally judicially determined that such
Beneficiary's claims hereunder and thereunder were frivolous. This Section
5.05(c) is intended to be for the benefit of, and may be enforced by, each
Beneficiary.
SECTION 5.06. Indemnification. Parent and Sub agree that all rights to
indemnification for acts or omissions occurring prior to the Effective Time of
the Merger now existing in favor of the current or former directors or officers
of the Company and its Subsidiaries as provided in their respective
certificates of incorporation or by-laws shall survive the Merger and shall
continue in full force and effect in accordance with their terms for a period
of not less than seven years from the Effective Time of the Merger. Parent
will cause to be maintained for a period of not less than seven years from the
Effective Time of the Merger the Company's current directors' and officers'
insurance and indemnification policy to the extent that it provides coverage
for events occurring prior to the Effective Time of the Merger (the "D&O
Insurance") for all persons who are directors and officers of the Company on
the date of this Agreement. If the existing D&O Insurance expires or is
terminated or cancelled during such seven-year period, Parent will use all
reasonable efforts to cause to be obtained at least as much D&O Insurance for
the remainder of such period on terms and conditions no less advantageous than
the existing D&O Insurance.
SECTION 5.07. Fees and Expenses.
(a) Except in the case of a willful and material breach of this
Agreement by the other party, all fees and expenses incurred in connection with
the Merger, this Agreement, and the transactions contemplated by this Agreement
shall be paid by the party incurring such fees or expenses, whether or not the
Merger is consummated.
(b) Notwithstanding the provisions of the foregoing subsection (a),
the Company and Parent shall each be responsible for paying one-half of the
combined FCC Application fees submitted with the FCC Applications.
(c) In the case of a willful and material breach of
this Agreement by any party, all fees and expenses incurred by the prevailing,
nonbreaching party or parties in connection with such breach, shall be paid by
the party breaching this Agreement.
SECTION 5.08. Public Announcements. Parent and Sub, on the one hand, and
the Company, on the other hand, will consult with each other before issuing,
and will provide each other the opportunity to review and comment upon, any
press release or other public statements with respect to the transactions
contemplated by this Agreement, including the Merger, and shall not issue any
press release or make any public statement prior to such consultation, except
as may be required by applicable law, court process, or obligations pursuant to
any listing agreement with any national securities exchange. The parties agree
that the initial press release to be issued with respect to the transactions
contemplated by this Agreement will be in the form, and will be issued on the
date and at the time, agreed to by the parties prior to the execution of this
Agreement.
SECTION 5.09. New York Real Estate Gains Tax. Parent and Sub agree that
the Surviving Corporation will pay the New York State Real Property Transfer
Tax, the New York State Real Property Transfer Gains Tax and the New York City
Real Property Transfer Tax (collectively, the "New York Gains Taxes"), if any,
and any penalties or interest with respect to the New York Gains Taxes, payable
in connection with the consummation of the Merger without any offset,
deduction, counterclaim, or deferment of price to be paid for Park Common Stock
in the Merger. The Company agrees to cooperate with Parent and Sub in the
filing of any returns with respect to the New York Gains Taxes, including
supplying in a timely manner a complete list of all real property interests
held by the Company or its Subsidiaries that are located in New York State and
any information with respect to such property that is reasonably necessary to
complete such returns.
SECTION 5.10 FCC Waiver. Parent and Sub covenant to seek a temporary
(12-month) waiver of the FCC's multiple ownership rules (or other similar
relief acceptable to the Company in its sole discretion) in order to allow for
the disposition of any stations, identified in the Disclosure Schedule, that,
under the FCC's multiple ownership rules, could not be held in common control
by Parent or Sub upon the Closing. Parent and Sub further covenant to
prosecute such waiver request in good faith and to supply any information
requested by the FCC in a timely and complete manner.
ARTICLE VI
Conditions Precedent
SECTION 6.01. Conditions to Each Party's Obligation to Effect the Merger.
The respective obligation of each party to effect the Merger is subject to the
satisfaction or waiver on or prior to the Closing Date of the following
conditions:
(a) Shareholder Approval. This Agreement shall have been approved
and adopted by the Required Company Shareholder Vote.
(b) FCC Consent. The FCC shall have granted the FCC Consent, which
FCC Consent shall have become a Final Order (as defined in Section 9.03).
(c) HSR Act. The waiting period (and any extension thereof)
applicable to the Merger under the HSR Act shall have been terminated or shall
have expired.
(d) Authorizations, Consents, Approvals, Etc. Any authorizations,
consents, approvals, orders or waivers required to be obtained, and all
filings, notices or declarations required to be made with any federal, state or
local governmental regulatory agency, including but not limited to the FCC,
shall have been obtained or made, except for such authorizations, consents,
approvals, orders, waivers, filings, notices, or declarations the failure of
which to obtain or make would not have a material adverse effect, on or after
the Effective Time of the Merger, on the business, results of operations, or
financial condition (as existing immediately prior to the consummation of the
Merger) of the Company and its Subsidiaries, and Parent and its Subsidiaries,
on a combined basis.
(e) No Injunctions or Restraints. No temporary restraining order,
preliminary or permanent injunction, or other order issued by any court of
competent jurisdiction or other legal restraint or prohibition preventing the
consummation of the Merger shall be in effect; provided, however, that each of
the parties shall have used its reasonable best efforts to prevent the entry of
any such injunction or other order and to appeal as promptly as possible any
injunction or other order that may be entered.
SECTION 6.02. Conditions to Obligations of Parent and Sub. The
obligations of Parent and Sub to effect the Merger are further subject to the
following conditions:
(a) Representations and Warranties. The representations and
warranties of the Company set forth in this Agreement that are qualified as to
materiality shall be true and correct, and the representations and warranties
of the Company set forth in this Agreement that are not so qualified shall be
true and correct in all material respects, in each case as of the date of this
Agreement and as of the Closing Date as though made on and as of the Closing
Date, except as otherwise contemplated by this Agreement, and Parent shall have
received a certificate to such effect signed on behalf of the Company by the
chief operating officer and the chief financial officer of the Company.
(b) Performance of Obligations of the Company. The Company shall
have performed in all material respects all obligations required to be
performed by it under this Agreement at or prior to the Closing Date, and
Parent shall have received a certificate to such effect signed on behalf of the
Company by the chief operating officer and the chief financial officer of the
Company.
(c) Employee Stock Options. Each Employee Stock Option shall have
been exercised or terminated.
(d) Opinion of Counsel. The Parent and Sub shall have received a
written opinion, dated as of the Effective Time of the Merger, from counsel for
the Company substantially in the form of Exhibit B hereto and from the
Company's counsel with respect to FCC matters in the form to be agreed prior to
the Closing.
SECTION 6.03. Conditions to Obligation of the Company. The obligations
of the Company to effect the Merger are further subject to the following
conditions:
(a) Representations and Warranties. The representations and
warranties of Parent and Sub set forth in this Agreement that are qualified as
to materiality shall be true and correct, and the representations and
warranties of Parent and Sub set forth in this Agreement that are not so
qualified shall be true and correct in all material respects, in each case as
of the date of this Agreement and as of the Closing Date as though made on and
as of the Closing Date except as otherwise contemplated by this Agreement, and
the Company shall have received a certificate to such effect signed on behalf
of each of Parent and Sub by the chief executive officer and the chief
financial officer of such entity.
(b) Performance of Obligations of the Parent and Sub. Each of
Parent and Sub shall have performed in all material respects all obligations
required to be performed by it under this Agreement at or prior to the Closing
Date, and the Company shall have received a certificate signed on behalf of
each of Parent and Sub by the chief executive officer and the chief financial
officer of such entity to such effect.
(c) Opinion of Counsel. The Company shall have received a written
opinion, dated as of the Effective Time of the Merger, from counsel for Parent
and Sub substantially in the form of Exhibit C hereto.
ARTICLE VII
Board Actions
SECTION 7.01. Board Actions.
(a) Notwithstanding any other provision of this Agreement, to the
extent required by the fiduciary obligations of the Board of Directors of the
Company, as determined in good faith by a majority of the disinterested members
thereof based on the advice of the Company's outside counsel, the Company may:
(i) in response to an unsolicited request therefor, participate
in discussions or negotiations with, or furnish information with respect to the
Company pursuant to a customary confidentiality agreement (as determined by the
Company's outside counsel) to, any person concerning an acquisition proposal
(for purposes of this Agreement, "acquisition proposal" means any proposal for
a merger or other business combination involving the Company or any of its
Broadcast Subsidiaries (as defined in Section 9.03), or any proposal or offer
to acquire in any manner, directly or indirectly, an equity interest in, any
voting securities of, or a substantial portion of the assets of the Company or
any of its Broadcast Subsidiaries, other than the transactions contemplated by
this Agreement); and
(ii) approve or recommend (and, in connection therewith withdraw
or modify its approval or recommendation of this Agreement or the Merger) a
superior acquisition proposal or enter into an agreement with respect to such
superior acquisition proposal (for purposes of this Agreement, "superior
acquisition proposal" means a bona fide acquisition proposal made by a third
party which a majority of the disinterested members of the Board of Directors
of the Company determines in its good faith judgment (based on the advice of
the Company's independent financial advisor) to be more favorable to the
Company's stockholders than the Merger, and for which financing, to the extent
required, is then committed or which, in the good faith judgment of a majority
of such disinterested board members (based on the advice of the Company's
independent financial advisor), is reasonably capable of being financed by such
third party).
(b) The Company shall promptly advise Parent in writing of any
acquisition proposal or any inquiry with respect to or which could lead to any
acquisition proposal and the identity of the person making any such acquisition
proposal or inquiry. The Company will keep Parent fully informed of the status
and details of any such acquisition proposal or inquiry.
ARTICLE VIII
Termination, Amendment and Waiver
SECTION 8.01. Termination. This Agreement may be terminated at any time
prior to the Effective Time of the Merger, whether before or after approval of
the transactions contemplated by this Agreement by the shareholders of the
Company:
(a) by mutual written consent of Parent and the Company;
(b) by either Parent or the Company:
(i) if, upon a vote at a duly held Company Shareholders Meeting
or any adjournment thereof, the required approval, of the shareholders of the
Company, of the transactions contemplated by this Agreement shall not have been
obtained as contemplated by Section 5.01(a);
(ii) if the Merger shall not have been consummated on or before
July 1, 1995, unless the failure to consummate the Merger is the result of a
willful and material breach of this Agreement by the party seeking to terminate
this Agreement; provided, however, that the passage of such period shall be
tolled for any part thereof during which any party shall be subject to a
nonfinal order, decree, ruling or action restraining, or enjoining the calling
or holding of the Company Shareholders Meeting or otherwise prohibiting the
consummation of the Merger, provided that such period shall not be tolled for
more than a total of twelve months pursuant to this proviso; or
(iii) if any Governmental Entity shall have issued an order,
decree, or ruling or taken any other action permanently enjoining, restraining,
or otherwise prohibiting the Merger and such order, decree, ruling, or other
action shall have become final and nonappealable;
(c) by the Company, to the extent that a majority of the
disinterested members of the Board of Directors of the Company shall have
determined to enter into an agreement with respect to a superior acquisition
proposal as contemplated by Section 7.01(a); provided that, concurrently with
entering into such agreement, the Company shall pay to Parent a termination fee
as follows: from the date hereof until December 31, 1994, the termination fee
payable by the Company shall be $5,000,000; the termination fee shall increase
by $500,000 on the first day of each month thereafter, but in no event shall
the aggregate termination fee exceed $7,500,000. Parent shall not be entitled
to receive any additional amounts (for expenses, costs or otherwise) from the
Company, its officers, directors or shareholders.
(d) by Parent, if the Board of Directors of the Company shall have
(i) withdrawn or modified in a manner adverse to Parent or Sub its approval or
recommendation of the Merger or this Agreement, or approved or recommended a
superior acquisition proposal, (ii) the Company shall have entered into an
agreement with respect to a superior acquisition proposal, or (iii) the Board
of Directors of the Company shall have resolved to do any of the foregoing; or
(e) by the Company, at any time that the Company determines that
Parent and Sub are not complying with the requirements of Section 5.03(a)(i)
(first sentence), 5.03(a)(iii), or 5.03(b) hereof, after ten (10) days prior
written notice without cure.
SECTION 8.02. Effect of Termination. In the event of termination of this
Agreement by either the Company or Parent as provided in Section 8.01, this
Agreement shall forthwith become void and have no effect, without any liability
or obligation on the part of Parent, Sub or the Company, other than the
provisions of Section 3.01(o), Section 3.02(g), the last sentence of Section
5.02, this Section 8.02, and Article IX and except to the extent that such
termination results from the willful and material breach by a party of any of
its representations, warranties, covenants, or agreements set forth in this
Agreement.
SECTION 8.03. Amendment. This Agreement may be amended by the parties at
any time before or after any required approval of the transactions contemplated
by this Agreement by the shareholders of the Company; provided, however, that,
after any such approval, there shall not be made without the further approval
of such shareholders any amendment that by law requires further approval by
such shareholders. This Agreement may not be amended except by an instrument
in writing signed on behalf of each of the parties.
SECTION 8.04. Extension; Waiver. At any time prior to the Effective Time
of the Merger, the parties may (a) extend the time for the performance of any
of the obligations or other acts of the other parties, (b) waive any
inaccuracies in the representations and warranties contained in this Agreement
or in any document delivered pursuant to this Agreement, or (c) subject to the
proviso of Section 8.03, waive compliance with any of the agreements or
conditions contained in this Agreement. Any agreement on the part of a party
to any such extension or waiver shall be valid only if set forth in an
instrument in writing signed on behalf of such party. The failure of any party
to this Agreement to assert any of its rights under this Agreement or otherwise
shall not constitute a waiver of those rights.
SECTION 8.05. Procedure for Termination, Amendment, Extension or Waiver.
A termination of this Agreement pursuant to Section 8.01, an amendment of this
Agreement pursuant to Section 8.03, or an extension or waiver pursuant to
Section 8.04 shall, in order to be effective, require (a) in the case of
Parent, Sub or the Company, action by its Board of Directors or the duly
authorized designee of its Board of Directors, and (b) in the case of the
Company, action by a majority of the members of the Board of Directors of the
Company who were members thereof on the date of this Agreement and remain as
such hereafter, or the duly authorized designee of such members.
ARTICLE IX
General Provisions
SECTION 9.01. Nonsurvival of Representations and Warranties. None of the
representations and warranties in this Agreement or in any instrument delivered
pursuant to this Agreement shall survive the Effective Time of the Merger.
This Section 9.01 shall not limit any covenant or agreement of the parties
which by its terms contemplates performance after the Effective Time of the
Merger.
SECTION 9.02. Notices. All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be deemed
given if delivered personally or sent by overnight courier (providing proof of
delivery) 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 Parent or Sub, to
Donald R. Tomlin, Jr.
306 Pinehurst Drive
Dothan, Alabama 36303
(205) 712-7400 (telephone)
(205) 712-7447 (facsimile)
Gary B. Knapp, D.B.A.
Knapp Securities, Inc.
333 West Vine Street, #300
Lexington, Kentucky 40507
(606) 281-6595 (telephone)
(606) 254-8639 (facsimile)
with a copy to:
Eckert Seamans Cherin & Mellott
One International Place, 18th Floor
Boston, Massachusetts 02110
Attn: Stephen I. Burr, Esq.
(617) 342-6833 (telephone)
(617) 342-6899 (facsimile)
(b) if to the Company, to
Park Communications, Inc.
Terrace Hill
P.O. Box 550
Ithaca, NY 14850
Attention: Mr. Wright M. Thomas
Fax: (607) 272-0054
with a copy to:
Sutherland, Asbill & Brennan
1275 Pennsylvania Avenue, N.W.
Washington, D.C. 20004-2404
Attention: Jerome B. Libin, Esq.
Fax: (202) 637-3593
SECTION 9.03. Definitions. For purposes of this Agreement:
(a) "Broadcast Subsidiaries" means the Subsidiaries authorized by the
FCC to hold one or more of the FCC Licenses;
(b) "Convertible Debentures" means the Company's 6-7/8 Convertible
Subordinated Debentures due March 15, 2011;
(c) "FCC Applications" means the applications seeking the FCC's
consent to transfer of control of the Broadcast Subsidiaries from the Company
to Parent or Sub;
(d) "FCC Consent" means an order or orders entered by the FCC
(including its staff pursuant to delegated authority) granting the FCC
Applications;
(e) "FCC Licenses" means the authorizations identified by call sign
and community of license in the Disclosure Schedule;
(f) "Final Order" means action taken by the FCC (including its staff
pursuant to delegated authority) which shall not have been reversed, stayed,
enjoined, set aside, annulled or suspended, with respect to which no timely
request for stay, petition for reconsideration or rehearing, appeal or
certiorari or sua sponte action of the FCC with comparable effect shall be
pending, and as to which the time for filing any such request, petition,
appeal, certiorari or for the taking of any such sua sponte action by the FCC
shall have expired or otherwise terminated;
(g) "Key Executive Officers" means W. Randall Odil, Rick A. Prusator,
Robert J. Rossi, and Randel N. Stair, who are the four highest-paid officers of
the Company, other than the president and chief operating officer;
(h) "material adverse change" or "material adverse effect" means,
when used in connection with the Company and its Subsidiaries, or Parent, any
change or effect (or any development that, insofar as can reasonably be
foreseen, is likely to result in any change or effect) that is materially
adverse to the business, properties, assets, condition (financial or
otherwise), results of operations or prospects of such party and its
Subsidiaries taken as a whole;
(i) "person" means an individual, corporation, partnership, joint
venture, association, trust, unincorporated organization or other entity;
(j) "Stations" means the broadcast stations authorized under Part 73
of the FCC's Rules and identified in the Disclosure Schedule; and
(k) a "Subsidiary" of any person means another person, that amount of
the voting securities, other voting ownership or voting partnership interests
of which is sufficient to elect at least a majority of its Board of Directors
or other governing body (or, if there are no such voting interests, 50% or more
of the equity interests of which) is owned directly or indirectly by such first
person.
SECTION 9.04. Interpretation. When a reference is made in this Agreement
to a Section, such reference shall be to a Section of this Agreement unless
otherwise indicated. The table of contents and headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Whenever the words "include",
"includes" or "including" are used in this Agreement, they shall be deemed to
be followed by the words "without limitation."
SECTION 9.05. Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other parties.
SECTION 9.06. Entire Agreement; No Third-Party Beneficiaries. This
Agreement (a) constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter of this Agreement and (b) except for the
provisions of Article II and Sections 5.05 and 5.06, is not intended to confer
upon any person other than the parties any rights or remedies hereunder.
SECTION 9.07. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, regardless of
the laws that might otherwise govern under applicable principles of conflict of
laws thereof.
SECTION 9.08. Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned, in whole or in
part, by operation of law or otherwise by any of the parties without the prior
written consent of the other parties. Subject to the preceding sentence, this
Agreement will be binding upon, inure to the benefit of, and be enforceable by,
the parties and their respective successors and assigns.
SECTION 9.09. Enforcement. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached.
It is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any Federal court located in the
State of New York or in any New York state court, this being in addition to any
other remedy to which they are entitled at law or in equity. In addition, each
of the parties hereto (a) consents to submit itself to the personal
jurisdiction of any Federal court located in the State of New York or any New
York state court in the event any dispute arises out of this Agreement or any
of the transactions contemplated by this Agreement, (b) agrees that it will not
attempt to deny or defeat such personal jurisdiction by motion or other request
for leave from any such court, and (c) agrees that it will not bring any action
relating to this Agreement or any of the transactions contemplated by this
Agreement in any court other than a Federal court located in the State of New
York or a New York state court.
IN WITNESS WHEREOF, Parent, Sub and the Company have caused this Agreement
to be signed by their respective officers thereunto duly authorized, all as of
the date first written above.
PARK ACQUISITIONS, INC.
by: /s/ Donald R. Tomlin, Jr.
---------------------------------------
Name: Donald R. Tomlin, Jr.
Title: President
by: /s/ Gary B. Knapp
---------------------------------------
Name: Gary B. Knapp
Title: Vice President & Treasurer
PARK ACQUISITIONS SUBSIDIARY, INC.
by: /s/ Donald R. Tomlin, Jr.
--------------------------------------
Name: Donald R. Tomlin, Jr.
Title: Vice President & Treasurer
by: /s/ Gary B. Knapp
--------------------------------------
Name: Gary B. Knapp
Title: Vice President & Treasurer
PARK COMMUNICATIONS, INC.
by: /s/ Dorothy D. Park
---------------------------------------
Name: Dorothy D. Park
Title: Chairman of the Board
EXHIBIT A
CERTIFICATE OF INCORPORATION
OF
PARK ACQUISITIONS SUBSIDIARY, INC.
The undersigned, a natural person, for the purpose of organizing a
corporation for conducting the business and promoting the purposes hereinafter
stated, under the provisions and subject to the requirements of the laws of the
State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the
acts amendatory thereof and supplemental thereto, and known, identified, and
referred to as the "General Corporation Law of the State of Delaware"), hereby
certifies that:
FIRST: The name of the corporation (hereinafter called the
"Corporation") is Park Acquisitions Subsidiary, Inc.
SECOND: The address, including street, number, city, and county, of
the registered office of the corporation in the State of Delaware is 32
Loockerman Square, Suite L- 100, City of Dover 19901, County of Kent; and the
name of the registered agent of the corpora tion in the State of Delaware at
such address is The Prentice Hall Corporation System, Inc.
THIRD: The nature of the business and the purposes to be conducted
and promoted by the corporation, shall be to conduct any lawful business, to
promote any lawful purpose, and to engage in any lawful act or activity for
which corporations may be organized under the General Corporation Law of the
State of Delaware.
FOURTH: The total number of shares of stock which the corporation
shall have authority to issue is 300. The par value of the shares shall be one
dollar ($1.00) per share. All such shares are of one class and are shares of
Common Stock.
FIFTH: The name and the mailing address of the incorporator are as
follows:
NAME MAILING ADDRESS
Cynthia L. Woolheater c/o Eckert Seamans Cherin & Mellott
600 Grant Street, 42nd Floor
Pittsburgh, PA 15219
SIXTH: The corporation is to have perpetual existence.
SEVENTH: The personal liability of the directors of the corporation
is hereby eliminated to the fullest extent permitted by the provisions of
paragraph (7) of subsection (b) of Sec. 102 of the General Corporation Law of
the State of Delaware, as the same may be amended and supplemented.
EIGHTH: The corporation shall, to the fullest extent permitted by
the provisions of Sec. 145 of the General Corporation Law of the State of
Delaware, as the same may be amended and supplemented, indemnify any and all
persons whom it shall have power to indemnify under said section from and
against any and all of the expenses, liabilities, or other matters referred to
in or covered by said section, and the indemnification provided for herein
shall not be deemed exclusive of any other rights to which those indemnified
may be entitled under any Bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office, and
shall continue as to a person who has ceased to be a director, officer,
employee, or agent and shall inure to the benefit of the heirs, executors, and
administrators of such a person.
NINTH: From time to time any of the provisions of this certificate
of incorporation may be amended, altered, or repealed, and other provisions
authorized by the laws of the State of Delaware at the time in force may be
added or inserted in the manner and at the time prescribed by said laws, and
all rights at any time conferred upon the stockholders of the corporation by
this certificate of incorporation are granted subject to the provisions of this
Article Ninth.
IN WITNESS WHEREOF, this Certificate of Incorporation has been duly
executed on October 24, 1994.
---------------------------------------
Cynthia L. Woolheater, Incorporator
EXHIBIT B
FORM OF OPINION
TO BE DELIVERED AT CLOSING
[INSERT DATE]
Park Acquisitions, Inc.
c/o Eckert Seamans Cherin & Mellott
One International Place, 18th Floor
Boston, Massachusetts 02110
Re: Park Acquisitions, Inc.: Acquisition
of Park Communications, Inc.
Ladies and Gentlemen:
You have requested our opinion as counsel to Park Communications, Inc.
(the "Company"), in connection with the acquisition of the Company by Park
Acquisitions, Inc. ("PAI"), through its wholly owned subsidiary, Park
Acquisitions Subsidiary, Inc. ("PAS"), pursuant to the terms of that certain
Agreement and Plan of Merger, dated as of October 25, 1994, among PAI, PAS, and
the Company (the "Merger Agreement).
All terms used herein shall have the respective meanings ascribed to them
in the Merger Agreement unless otherwise defined herein.
In connection herewith, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of all such corporate and official
records of the Company, and all such other agreements, documents and matters,
as we have considered necessary for the purposes of the opinions hereinafter
expressed, including, without limitation, the following documents:
1. the Merger Agreement;
2. the Escrow Agreement dated as of October 25, 1994, (the "Escrow
Agreement") among the Company, PAI, PAS and the Retirement
Systems of Alabama ("RSA");
3. the Assignment and Assumption Agreement dated as of October 25,
1994, among the Company, PAI, PAS, and RSA (the "Assignment and
Assumption Agreement'); and
4. the Company's Certificate of Incorporation and By-Laws.
In such examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals, the conformity
with the originals of all documents submitted to us as drafts or as copies
thereof, and the authenticity of the originals of such drafts or copies. We
have also assumed that the Merger Agreement, Assignment and Assumption
Agreement and Escrow Agreement have been duly executed and delivered by the
parties thereto (other than the Company) and constitute the legal, valid and
binding obligation of all such parties, enforceable by the Company in
accordance with the respective terms of such agreements.
We have also made such examination of law as we have considered necessary
for purposes of the opinions hereinafter expressed.
The opinions expressed in this letter are limited to the effect of the
laws of the State of New York, the laws of the State of Delaware (as to matters
of corporate law only) and the federal laws of the United States.
Based upon and subject to the foregoing and to the qualifications set
forth below, we are of the opinion that:
1. The Company is duly incorporated, validly existing, and in good
standing as a corporation under the laws of the State of Delaware.
The Company has full legal right, power and authority to execute,
deliver and perform the Merger Agreement, the Assignment and
Assumption Agreement and the Escrow Agreement.
2. The Company has taken all necessary corporate action to
authorize the execution, delivery and performance of the Merger
Agreement, the Assignment and Assumption Agreement, and the Escrow
Agreement.
3. The Merger Agreement, the Assignment and Assumption Agreement,
and the Escrow Agreement are the legal, valid and binding obligations
of the Company, enforceable in accordance with their respective
terms. The execution, delivery and performance by the Company of the
Merger Agreement, the Assignment and Assumption Agreement, and the
Escrow Agreement: (i) will not violate or contravene any provision of
law, or other governmental directive having the force of law, which
is applicable to the Company; (ii) will not conflict with the
Certificate of Incorporation or By-laws of the Company; and (iii) to
the best of our knowledge, will not conflict with or result in the
breach of any provision of, or default under, or in the imposition of
any mortgage, lien, charge or encumbrance under, any agreement to
which the Company is a party or by which it or any of its assets is
bound except for any such conflict, default, breach or imposition
which would not have a material adverse effect on the Company.
4. To the best of our knowledge, without independent investigation,
there is no action, suit or proceeding against the Company pending or
threatened before any court, arbitrator or governmental authority
which may have a material adverse effect on the financial position or
operations of the Company or on its ability to enter into or perform
any of its obligations under the Merger Agreement, the Assignment and
Assumption Agreement or the Escrow Agreement.
This opinion is subject to the qualification that enforcement may be
limited or affected by bankruptcy, insolvency, reorganization, arrangement,
moratorium or other similar laws relating to or affecting the rights of
creditors generally and by general principles of equity, regardless of whether
such enforceability is considered in a proceeding in equity or at law.
This opinion is strictly limited to the matters addressed herein and is
not to be read as an opinion with respect to any other matter. This opinion is
being delivered solely to the addressee hereof and may not be delivered to or
relied upon by any other party.
Very truly yours,
SUTHERLAND, ASBILL & BRENNAN
By:_____________________________________
James D. Darrow
EXHIBIT C
FORM OF OPINION
TO BE DELIVERED AT CLOSING
[INSERT DATE]
Park Communications, Inc.
Terrace Hill
Ithaca, NY 14850
Re: Park Acquisitions, Inc.: Acquisition
of Park Communications, Inc.
Ladies and Gentlemen:
You have requested our opinion as counsel to Park Acquisitions, Inc.
("PAI") and its wholly owned subsidiary, Park Acquisitions Subsidiary, Inc.
("PAS") in connection with the acquisition by PAI of Park Communications, Inc.
(the "Company") pursuant to the terms of that certain Agreement and Plan of
Merger, dated as of October 25, 1994, among PAI, PAS, and the Company (the
"Merger Agreement).
All terms used herein shall have the meanings set forth in the Merger
Agreement unless otherwise defined herein.
In connection herewith, we have examined: originals or copies, certified
or otherwise identified to our satisfaction, of all such corporate and official
records of PAI and PAS, and all such other agreements, documents and matters as
we have considered necessary for the purposes of the opinions hereinafter
expressed, including, without limitation, the following documents:
1. the Merger Agreement;
2. the Escrow Agreement dated as of October 25, 1994, among the
Company, PAI, PAS and the Retirement Systems of Alabama ("RSA") (the
"Escrow Agreement");
3. the Assignment and Assumption Agreement dated as of October 25,
1994, among the Company, PAI, PAS, and RSA (the "Assignment and
Assumption Agreement'); and
[Insert additional documents reviewed]
In such examination, we have assumed the genuineness of all signatures and
the authenticity of all documents submitted to us as originals, and the
conformity with the originals of all documents submitted to us as drafts or as
copies thereof, and the authenticity of the originals of such drafts or copies.
We have also assumed that the Merger Agreement, Assignment and Assumption
Agreement and Escrow Agreement have been duly executed and delivered by the
other parties thereto and constitute the legal, valid and binding obligation of
all such parties, enforceable by PAI and PAS in accordance with the respective
terms of such agreements.
We have also made such examination of law as we have considered necessary
for purposes of this opinion.
The opinions expressed in this letter are limited to the effect of the
laws of the State of [_________], the laws of the State of [________] (as to
matters of corporate law only) and the federal laws of the United States.
Based upon and subject to the foregoing and to the qualifications set
forth below, we are of the opinion that:
1. Each of PAI and PAS is duly incorporated, validly existing, and
in good standing as a corporation under the laws of the State of
[________]. Each of PAI and PAS has full legal right, power and
authority to execute, deliver and perform the Merger Agreement, the
Assignment and Assumption Agreement and the Escrow Agreement.
2. Each of PAI and PAS has taken all necessary corporate action to
authorize the execution, delivery and performance of the Merger
Agreement, the Assignment and Assumption Agreement, and the Escrow
Agreement.
3. The Merger Agreement, the Assignment and Assumption Agreement,
and the Escrow Agreement are the legal, valid and binding obligations
of both PAI and PAS, enforceable in accordance with their respective
terms. The execution, delivery and performance by PAI and/or PAS of
the Merger Agreement, the Assignment and Assumption Agreement, and
the Escrow Agreement: (i) will not violate or contravene any
provision of law or other governmental directive having the force of
law, which is applicable to PAI or PAS; (ii) will not conflict with
the Certificate of Incorporation or By-laws of PAI or PAS; (iii) to
the best of our knowledge, will not conflict with or result in the
breach of any provision of default under, or in the imposition of any
mortgage, lien, charge or encumbrance under any agreement to which
PAI or PAS is a party or by which PAI or PAS or any of their
respective assets are bound except for any such conflict, default or
breach which would not have a material adverse effect on either PAI
or PAS.
4. To the best of our knowledge, without independent investigation,
there is no action, suit or proceeding affecting either PAI or PAS
pending or threatened before any court, arbitrator or governmental
authority which may have a material adverse effect on the financial
position or operations of PAI or PAS or on their respective ability
to enter into or perform any of its obligations under the Merger
Agreement, the Assignment and Assumption Agreement or the Escrow
Agreement.
This opinion is subject to the qualification that enforcement may be
limited or affected by bankruptcy, insolvency, reorganization, arrangement,
moratorium or other similar laws relating to or affecting the rights of
creditors generally and by general principles of equity, regardless of whether
such enforceability is considered in a proceeding in equity or at law.
This opinion is strictly limited to the matters addressed herein and is
not to be read as an opinion with respect to any other matter. This opinion is
being delivered solely to the addressees hereof and may not be delivered to or
relied upon by any other party.
Very truly yours,
ECKERT SEAMANS CHERIN & MELLOTT