EXHIBIT 2(d)
PLAN AND AGREEMENT OF MERGER
BETWEEN
VAUGHN COMMUNICATIONS, INC.
AND
SATASTAR CORPORATE SERVICES, INC.
doing business as
PVS CORPORATE SERVICES
June 7, 1996
TABLE OF CONTENTS
Page #
ARTICLE 1
DEFINITIONS........................................................... 1
ARTICLE 2
MERGER................................................................ 4
2.1 MERGER....................................................... 4
2.3 GOVERNING LAW; RESTATED ARTICLES OF INCORPORATION............ 4
2.4 DIRECTORS AND OFFICERS....................................... 4
2.5 APPROVAL OF SHAREHOLDERS; FILING OF ARTICLES OF
ARTICLE 3
CONVERSION OF SHARES IN THE MERGER.................................... 4
3.1 VAUGHN'S COMMON STOCK........................................ 4
3.2 PVS'S COMMON STOCK........................................... 5
(a) CONVERSION............................................ 5
(b) STOCK CERTIFICATES.................................... 5
3.3 EFFECT OF THE MERGER......................................... 5
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF
PVS AND ITS SHAREHOLDERS.............................................. 6
4.1 ORGANIZATION AND STANDING.................................... 6
4.2 AUTHORITY AND ENFORCEABILITY................................. 6
4.3 COMPLIANCE................................................... 7
4.4 CAPITALIZATION............................................... 7
4.5 FINANCIAL STATEMENTS......................................... 7
4.6 ASSETS....................................................... 8
(a) ACCOUNTS RECEIVABLE.................................. 8
(b) INVENTORY............................................ 8
(c) TANGIBLE PERSONAL PROPERTY EQUIPMENT AND
FIXTURES............................................. 8
(d) INTANGIBLES.......................................... 8
(e) REAL PROPERTY........................................ 9
4.7 UNDISCLOSED LIABILITIES...................................... 9
4.8 CONDUCT OF BUSINESS IN ORDINARY COURSE....................... 9
4.9 ENVIRONMENTAL MATTERS........................................ 11
4.10 EMPLOYEE BENEFIT PLANS; ERISA................................ 11
(a) EXISTENCE OF PLANS..................................... 11
(b) ADMINISTRATION......................................... 12
(c) REPORTING AND DISCLOSURE............................... 12
(d) INSURANCE.............................................. 12
(e) MULTI-EMPLOYER PLANS................................... 12
(f) LIABILITY.............................................. 12
4.11 EMPLOYEES; COLLECTIVE BARGAINING AGREEMENTS; LABOR
RELATIONS.................................................... 12
(a) EMPLOYEES.............................................. 12
(b) EMPLOYMENT AGREEMENTS.................................. 13
4.12 TAXES........................................................ 13
4.13 CONTRACTS.................................................... 14
4.14 COMPLIANCE WITH LAWS; PERMITS AND LICENSES................... 14
4.15 INSURANCE.................................................... 15
4.16 CLAIMS; LEGAL ACTIONS........................................ 15
4.17 POWERS OF ATTORNEY; BANK ACCOUNTS AND SAFE DEPOSIT
BOXES........................................................ 16
4.18 BROKERS..................................................... 16
4.19 ACCOUNTING TREATMENT MATTERS................................ 16
(a) VAUGHN OWNERSHIP........................................ 16
(b) POST-CLOSING ACQUISITIONS............................... 16
(c) CERTAIN PVS TRANSACTIONS................................ 16
4.21 SURVIVABILITY................................................ 17
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF VAUGHN.............................. 17
5.1 ORGANIZATION AND STANDING.................................... 17
5.2 AUTHORITY AND ENFORCEABILITY................................. 17
5.3 COMPLIANCE................................................... 17
5.4 SEC FILINGS; FINANCIAL STATEMENTS............................ 18
5.5 CAPITALIZATION............................................... 18
5.6 CONDUCT OF VAUGHN'S BUSINESS IN ORDINARY COURSE.............. 19
5.7 CLAIMS; LEGAL ACTIONS........................................ 19
5.8 COMPLETE DISCLOSURE.......................................... 19
5.9 SURVIVABILITY................................................ 20
ARTICLE 6
OTHER AGREEMENTS...................................................... 20
6.1 RULE 144 REPORTING........................................... 20
6.2 STOCK PLEDGE AGREEMENT....................................... 20
6.3 RESTRICTIONS ON TRANSFER OF STOCK CONSIDERATION.............. 21
6.4 PUBLIC ANNOUNCEMENT.......................................... 21
6.5 EXHIBITS..................................................... 21
6.6 STALE ACCOUNTS RECEIVABLE.................................... 21
6.8 COSTS AND EXPENSES........................................... 21
ARTICLE 7
CONDITIONS PRECEDENT TO PVS'S OBLIGATIONS............................. 21
7.1 ACCURACY OF VAUGHN'S REPRESENTATIONS AND
WARRANTIES................................................... 22
7.2 PERFORMANCE BY VAUGHN........................................ 22
7.3 DELIVERIES AT CLOSING........................................ 22
7.4 CONSENTS..................................................... 22
7.5 OPINION OF COUNSEL........................................... 22
7.6 CHANGES IN BUSINESS.......................................... 22
7.7 BOARD OF DIRECTOR APPROVAL................................... 22
7.8 EMPLOYMENT AGREEMENTS........................................ 22
ARTICLE 8
CONDITIONS PRECEDENT TO VAUGHN'S OBLIGATIONS.......................... 22
8.1 ACCURACY OF PVS'S REPRESENTATIONS AND WARRANTIES............. 22
8.2 PERFORMANCE BY PVS........................................... 23
8.3 DELIVERIES AT CLOSING........................................ 23
8.4 CONSENTS..................................................... 23
8.5 OPINION OF COUNSEL........................................... 23
8.6 CHANGES IN BUSINESS.......................................... 23
8.7 SHAREHOLDER APPROVAL; DISSENTING SHARES...................... 23
ARTICLE 9
TERMINATION........................................................... 23
9.1 TERMINATION.................................................. 23
9.2 EFFECT OF TERMINATION........................................ 24
ARTICLE 10
CLOSING............................................................... 24
10.1 CLOSING PLACE AND DATE....................................... 24
10.2 DELIVERIES BY PVS............................................ 24
10.3 DELIVERIES BY VAUGHN......................................... 25
ARTICLE 11
INDEMNIFICATION....................................................... 26
11.1 INDEMNIFICATION OF SURVIVING CORPORATION BY PVS
SHAREHOLDERS................................................. 26
11.2 INDEMNIFICATION OF THE PVS SHAREHOLDERS BY VAUGHN............ 27
11.3 CLAIMS PROCEDURE............................................. 27
(a) NOTICE OF CLAIM......................................... 27
(b) INVESTIGATION; PAYMENT.................................. 28
(c) ARBITRATION............................................. 28
(d) PARTICIPATION IN DEFENSE................................ 28
(e) COLLATERAL.............................................. 28
11.4 LIMITATION OF INDEMNIFICATION OBLIGATION..................... 29
11.5 SOLE REMEDY.................................................. 30
ARTICLE 12
POST-CLOSING AGREEMENTS............................................... 30
12.1 FURTHER ASSURANCES........................................... 30
ARTICLE 13
MISCELLANEOUS......................................................... 30
13.1 GOVERNING LAW................................................ 30
13.2 ENTIRE AGREEMENT............................................. 30
13.3 WAIVER AND AMENDMENT......................................... 30
13.4 NOTICES...................................................... 31
13.5 BINDING AGREEMENT............................................ 32
13.6 COUNTERPARTS................................................. 32
13.7 EXHIBITS..................................................... 32
EXHIBIT INDEX
Exhibit 2.3 RESTATED ARTICLES OF INCORPORATION.................... 4
Exhibit 2.5 ARTICLES OF MERGER.................................... 1,4
Exhibit 4.4 PVS SHAREHOLDERS...................................... 3,7
Exhibit 4.5 COPIES OF PVS'S FINANCIAL STATEMENTS.................. 7,8
Exhibit 4.6(a) ACCOUNTS RECEIVABLE OF PVS......................... 8
Exhibit 4.6(c) ALL PERSONAL PROPERTY OWNED OR LEASED BY
PVS............................................... 8
Exhibit 4.6(d) LIST OF INTANGIBLES................................ 9
Exhibit 4.6(e) LIST OF REAL PROPERTY.............................. 9
Exhibit 4.7 UNDISCLOSED LIABILITIES............................... 9
Exhibit 4.8 CONDUCT OF BUSINESS IN ORDINARY COURSE................ 9
Exhibit 4.9 ENVIRONMENTAL MATTERS................................. 11
Exhibit 4.10(a) EXISTENCE OF PLANS................................ 12
Exhibit 4.11(a) EMPLOYEES......................................... 13
Exhibit 4.11(b) WRITTEN EMPLOYMENT AGREEMENTS..................... 13
Exhibit 4.12 AUDITS............................................... 14
Exhibit 4.13 CONTRACTS............................................ 14
Exhibit 4.14 LIST OF ALL PERMITS AND LICENSES..................... 15
Exhibit 4.15 LIST OF ALL INSURANCE................................ 15
Exhibit 4.16 CLAIMS; LEGAL ACTIONS................................ 15,16
Exhibit 4.17 POWERS OF ATTORNEY; BANK ACCOUNTS, ETC............... 16
Exhibit 5.5 CAPITALIZATION........................................ 18
Exhibit 5.6 CONDUCT OF VAUGHN'S BUSINESS IN ORDINARY
COURSE................................................ 18
Exhibit 5.7 CLAIMS; LEGAL ACTIONS................................. 18,19
Exhibit 6.1 STOCK PLEDGE AGREEMENT................................ 24
Exhibit 6.2 STOCK PLEDGE AGREEMENT................................3,21,29
Exhibit 6.3 INVESTMENT LETTER..................................... 2,21
Exhibit 7.5 OPINION OF COUNSEL.................................... 22
Exhibit 8.5 OPINION OF COUNSEL.................................... 23
PLAN AND AGREEMENT OF MERGER
BETWEEN
VAUGHN COMMUNICATIONS, INC.
AND
SATASTAR CORPORATE SERVICES, INC.
doing business as
PVS CORPORATE SERVICES
June 7, 1996
THIS AGREEMENT is dated effective as of the 7th day of June, 1996 by and
between VAUGHN COMMUNICATIONS, INC., a Minnesota corporation ("Vaughn"),
SATASTAR CORPORATE SERVICES, INC., doing business as PVS CORPORATE SERVICES, an
Illinois corporation ("PVS") (both Vaughn and PVS may collectively be referred
to as the "Merging Corporations"), and the PVS SHAREHOLDERS as such term is
defined in Article I hereof.
RECITALS
Both of the Merging Corporations are engaged in the business of
videotape duplication. The Merging Corporations and their respective
shareholders desire to adopt and implement this Agreement providing
for the Merger of the Merging Corporations pursuant to the provisions
of Section 368(a)(1)(A) of the Code, and in accordance with the laws
of the States of Minnesota and Illinois, in accordance with the terms
of this Agreement.
ARTICLE 1
DEFINITIONS
Agreement means this agreement and all of the Exhibits attached hereto.
ARTICLES OF MERGER means the articles of merger described in Section 2.5
and attached as Exhibit 2.5.
BOOK VALUE means the book value of the PVS Shares, as defined in Section
3.2(a); provided, however, that accounts receivable in excess of ninety (90)
days old shall be valued at zero (0).
CLOSING DATE means June 28, 1996, or such other date as the parties may
mutually agree.
CLOSING means the closing of the transactions contemplated by this
Agreement.
CODE means the Internal Revenue Code of 1986, as amended from time to time.
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EFFECTIVE DATE means the date this Agreement is executed.
EMPLOYMENT AGREEMENTS mean the agreements described in Section 6.7 and
attached as Exhibit 6.7.
ENVIRONMENTAL LAW means any law, statute, regulation, rule, order,
consent, decree, settlement agreement or governmental requirement, which
imposes liability for or standards of conduct concerning discharges,
emissions, releases or threatened releases of noises, odors or any
pollutants, contaminants or hazardous or toxic wastes, substances or
materials into ambient air, water or land, or otherwise imposes liability for
or standards of conduct concerning the manufacture, processing, generation,
distribution, use, treatment, storage, disposal, cleanup, transport or
handling of pollutants, contaminants, or hazardous toxic wastes, substances,
materials or containers, including the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, the Resources
Conservation and Recovery Act of 1976, as amended, any other so-called
"Superfund" or "Superlien" law, the Toxic Substances Control Act, or any
other similar federal, state or local statutes, laws or ordinances.
ERISA means the Employee Retirement Income Security Act of 1974, as
amended.
EXHIBITS means the exhibits referred to and attached to this Agreement.
INDEMNIFYING PARTY means the party indemnifying the Surviving Corporation
or the Surviving Corporation (as successor to Vaughn) with respect to
indemnification of the PVS Shareholders, all pursuant to Article 11 hereof.
INTANGIBLES means copyrights, trademarks, trade names, service marks,
licenses, patents, permits, jingles, privileges, franchises, computer software
and licenses, and other similar intangible property rights and interests.
INVESTMENT LETTER means the agreement described in Section 6.3 and attached
as Exhibit 6.3.
MATERIAL ADVERSE EFFECT means an event that has such an effect as described
in the context of the reference, either individually or in the aggregate, when
such individual events or circumstances are based upon, arise from or are
related to the same or substantially similar underlying facts, circumstances or
situations.
MERGER means the merger of PVS into Vaughn in accordance with the laws of
the States of Minnesota and Illinois and Section 368(a)(1)(A) of the Code, all
pursuant to the terms of this Agreement.
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MERGING CORPORATIONS means Vaughn and PVS.
PVS means Satastar Corporate Services, Inc. doing business as PVS Corporate
Services.
PVS SHAREHOLDERS means the individuals referred to in Exhibit 4.4.
PVS SHARES means the shares of common voting stock of PVS as issued and
outstanding on the Closing Date prior to the Closing.
PVS'S BUSINESS means the business assets, liabilities and operations of
PVS, as conducted prior to Closing.
PVS'S FINANCIAL STATEMENTS means the financial statements of PVS, including
the year end balance sheet, statement of operations and statement of financial
position, of PVS for the previous two fiscal years of PVS, as reviewed by Wolf &
Company, LLP, and the interim statements up to the Closing Date.
SEC means the Securities and Exchange Commission.
SEC FILINGS means complete copies of each report, schedule, registration
statement and definitive proxy statement (including copies of all amendments and
supplements and all exhibits set forth or incorporated by reference therein)
filed by Vaughn with the Securities and Exchange Commission since January 1,
1994.
STOCK CONSIDERATION means the shares of common voting stock of the
Surviving Corporation received by the PVS Shareholders pursuant to the terms of
the Merger.
STOCK PLEDGE AGREEMENT means the agreement described in Section 6.2 and
attached as Exhibit 6.2
SURVIVING CORPORATION means Vaughn, after the merger of PVS into Vaughn on
the Closing Date, pursuant to the terms of this Agreement.
VAUGHN means Vaughn Communications, Inc., a Minnesota corporation.
VAUGHN SHARES means the shares of common voting stock of Vaughn as issued
and outstanding on the Closing Date prior to the Closing.
VAUGHN'S BUSINESS means the business assets, liabilities and operations of
Vaughn, as conducted prior to Closing.
VAUGHN'S FINANCIAL STATEMENTS means the financial statements of Vaughn,
including the year end balance sheet, statement of income and statement of cash
flow, of Vaughn for the previous two
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fiscal years of Vaughn, as audited by Ernst & Young, LLP, and the interim
unaudited statements up to the Closing Date.
ARTICLE 2
MERGER
2.1 MERGER. In consideration of the representations, warranties and mutual
promises set forth in this Agreement, the parties agree, in accordance with the
applicable provisions of the laws of the States of Minnesota and Illinois, that
PVS shall be merged into Vaughn, which shall continue its corporate existence
and be the corporation surviving the Merger, all in accordance with Section
368(a)(1)(A) of the Code and subject to the terms of this Agreement.
2.2 NAME. The name of the Surviving Corporation shall be Vaughn
Communications, Inc.
2.3 GOVERNING LAW; RESTATED ARTICLES OF INCORPORATION. The laws of the
State of Minnesota shall govern the Surviving Corporation and the interpretation
and enforcement of this Agreement. The Restated Articles of Incorporation of
the Surviving Corporation shall be in the form attached as Exhibit 2.3.
2.4 DIRECTORS AND OFFICERS. As of the Closing Date, the directors of the
Surviving Corporation shall be the existing directors of Vaughn. The officers of
the Surviving Corporation shall be the existing officers of Vaughn.
2.5 APPROVAL OF SHAREHOLDERS; FILING OF ARTICLES OF MERGER. This Agreement,
together with the Articles of Merger, shall be submitted to the Board of
Directors of Vaughn and the shareholders of PVS as provided by law at a meeting
which shall be held on or before June 28, 1996, or at such later date as the
Boards of Directors of the Merging Corporations shall mutually approve. Upon
adoption and approval of this Agreement, and subject to the conditions contained
in this Agreement, the Articles of Merger, attached as Exhibit 2.5, shall be
executed, acknowledged and delivered to the Secretaries of State of the States
of Minnesota and Illinois for filing as provided by law.
ARTICLE 3
CONVERSION OF SHARES IN THE MERGER
The manner of carrying into effect the Merger, and the manner and basis of
converting the shares of PVS into shares of the Surviving Corporation are as
follows:
3.1 VAUGHN'S COMMON STOCK. No shares of common stock of Vaughn issued as
of the Effective Date shall be converted as a
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result of the Merger, but all of such shares shall remain issued shares of
common stock of the Surviving Corporation.
3.2 PVS'S COMMON STOCK.
(a) CONVERSION. On the Closing Date, each share of common stock of
PVS issued and outstanding shall be converted into the number of shares of
common stock of the Surviving Corporation as determined by the following
formula;
1 PVS share = [($2,500,000 + $BV) DIVIDED BY 1000 DIVIDED BY $MP] Vaughn shares
Total Vaughn shares issued = ($2,500,000 + $BY) DIVIDED BY $MP
where 1000 is the number of outstanding shares of PVS at the Closing
Date, "BY" represents the Book Value of PVS on the Closing Date and
"MP" represents the market price of one share of Vaughn's common stock
which for this purpose shall be the average of the closing NASDAQ
price published in the Wall Street Journal for the seven trading days
ending one week prior to the Closing Date.
Certificates representing fractional shares will not be issued. Each issued
share of common stock of PVS held in the PVS's treasury at the Effective Date
shall be canceled and shall not be converted. The preliminary Book Value of PVS
shall be determined at the Closing Date based on the books and records of PVS,
following review by Wolf & Company, LLP and such Book Value shall thereafter be
adjusted as necessary to conform to generally accepted accounting principles,
including any adjustments resulting from the special procedures (including
observation of inventory, review of receivables and liabilities and such other
procedures as may be requested by the Surviving Corporation) performed by
certified public accountants selected by the Surviving Corporation, all within
forty-five (45) days thereafter. Wolf & Company, LLP shall complete its review
of the Book Value of PVS within thirty (30) days after the Closing Date so that
the accountants selected by the Surviving Corporation will have an additional
fifteen (15) days to complete their procedures.
(b) STOCK CERTIFICATES. Within forty-five (45) days after the Closing
Date, after determination of Book Value in accordance with Section 3.2(a), the
PVS Shareholders shall surrender their certificates representing such shares for
cancellation and, subject to the Stock Pledge Agreement, shall receive
certificates representing the Stock Consideration.
3.3 EFFECT OF THE MERGER. At the Closing Date, the Surviving Corporation
shall succeed to, without other transfer, act or deed of any person, and shall
possess and enjoy all the rights, privileges, immunities, powers and franchises
both of a public and private nature, and be subject to all the restrictions,
5
disabilities and duties of each of the Merging Corporations, and all property,
real, personal and mixed, including patents, trademarks, trade names, and all
debts due to any of the Merging Corporations shall be vested in the Surviving
Corporation; and all such property, rights, privileges, immunities, powers and
franchises, and all and every other interest shall be thereafter the property of
the Surviving Corporation, and the title of any real estate vested by deed or
otherwise in any of said Merging Corporations shall not revert or be in any way
impaired by reason of the Merger; provided, however, that all rights of
creditors and all liens upon any property of any of said Merging Corporations
shall be preserved unimpaired, and all debts, liabilities and duties of the
Merging Corporations, respectively, shall attach to the Surviving Corporation
and may be enforced against it to the same extent as if said debts, liabilities
and duties had been incurred or contracted by the Surviving Corporation.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF
PVS AND ITS SHAREHOLDERS
PVS and its Shareholders jointly and separately make the following
representations and warranties to Vaughn with the intention that Vaughn may rely
upon the same and acknowledge that the same shall be true on the Effective Date
and as of the Closing Date and that such representations and warranties shall
survive the Closing of this transaction.
4.1 ORGANIZATION AND STANDING. PVS is a corporation duly organized, validly
existing and in good standing under the laws of the State of Illinois and is
duly qualified to do business in all other states in which a failure to qualify
would have a Material Adverse Effect on PVS's Business. PVS has the requisite
corporate power and authority to own, lease and use its properties and assets
and is entitled to operate its business as and in the places where such
properties and assets are now owned, leased or operated as such business is now
conducted.
4.2 AUTHORITY AND ENFORCEABILITY. PVS has all requisite corporate power and
authority to enter into this Agreement and to perform all of its obligations
under this Agreement. The execution, delivery and performance of this Agreement
have been duly authorized by all necessary corporate action on the part of PVS
and has been approved by the unanimous vote of PVS's Shareholders. This
Agreement constitutes the valid and binding agreement of PVS enforceable in
accordance with its terms except as may be limited by bankruptcy, moratorium and
insolvency laws and other laws affecting the rights of creditors generally and
except as may be limited by the availability of equitable remedies.
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4.3 COMPLIANCE. Except as shown in Exhibit 4.3, neither the execution,
delivery or performance of this Agreement by PVS or the PVS Shareholders nor
the consummation of the transactions contemplated hereby will, with or
without the giving of notice or the passage of time, or both, conflict with,
result in a default or loss of rights (or give rise to any right of
termination, cancellation or acceleration) under, or result in the creation
of any lien, charge or encumbrance pursuant to any;
(i) provision of the Articles of Incorporation or Bylaws of PVS;
(ii) note, bond, indenture, mortgage, deed of trust, contract,
agreement, lease or other instrument or obligation to which
either PVS or the PVS Shareholders are a party or by which any of
them may be bound or affected which is material to PVS; or
(iii) law, order, judgment, ordinance or decree to which PVS or the PVS
Shareholders are a party or by which they may be bound or
affected.
4.4 CAPITALIZATION. The authorized capital stock of PVS is held as set
forth in Exhibit 4.4. All issued and outstanding shares of PVS are owned of
record and beneficially by the PVS Shareholders in amounts specified in
Exhibit 4.4. Other than the PVS Shares identified in Exhibit 4.4, there are
no other issued or outstanding capital stock or other equitable securities,
or options or warrants to acquire the same, of PVS. All of the PVS Shares are
validly issued, fully paid and non-assessable, free of preemptive rights or
rights of first refusal as of the Closing and have not been issued in
violation of federal or state securities laws. Except as described in Exhibit
4.4 and excepting agreements which will terminate on or before the Closing
Date, there are no subscriptions, options, warrants, calls, rights,
agreements or commitments relating to the sale, delivery or transfer by PVS
or the PVS Shareholders of any PVS Shares. Except as described in
Exhibit 4.4 and excepting agreements which will terminate on or before the
Closing Date, there are no voting agreements, voting trust agreements,
shareholder agreements or similar agreements relating to the voting of the
PVS Shares. Effective as of the Closing, each PVS Shareholder shall have
good and valid title to the PVS Shares owned by him and to be transferred
pursuant to this Agreement, free and clear of all pledges, security
interests, liens, charges, encumbrances, agreements, equities, claims and
options of whatever nature.
4.5 FINANCIAL STATEMENTS. Exhibit 4.5 contains copies of PVS's Financial
Statements, all of which have been prepared from the books and records of PVS
in accordance with generally accepted accounting principles, consistently
applied and maintained throughout the periods indicated. The Financial
Statements accurately reflect in all material respects the books, records and
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accounts of PVS, and fairly present the financial condition, assets,
liabilities and results of operation of PVS as of and at their respective
dates (except for the absence of footnotes and year-end adjustments in the
case of unaudited interim financial statements). Exhibit 4.5 also contains a
breakdown of PVS's sales by major customers for the three (3) fiscal years
DEG. ending prior to the date of this Agreement.
4.6 ASSETS.
(a) ACCOUNTS RECEIVABLE. Exhibit 4.6(a) lists all accounts receivable
of PVS as of April 3O, 1996. Except to the extent reserved against in PVS's
Financial Statements, all accounts receivable of PVS which are less than
ninety (90) days old as of the Closing Date are collectable at the aggregate
face amounts of such receivables recorded on PVS's books. All such accounts,
notes or other receivables are valid, legal and binding obligations owing to
PVS enforceable against the respective obligors.
(b) INVENTORY. All inventories of raw material, work in process and
finished goods included in PVS's Financial Statements are valued at the lower
of cost or market, first-in first-out basis. Except to the extent reserved
against in PVS's Financial Statements, PVS's inventory is and will be, as of
the Closing Date, good, merchantable and saleable at customary prices in the
ordinary course of business and is and will be, as of the Closing Date, of a
quality, quantity and mix consistent with PVS's past business practices and
the demands of its customers.
(c) TANGIBLE PERSONAL PROPERTY. EQUIPMENT AND FIXTURES.
Exhibit 4.6(c) accurately describes all personal property owned or leased by
PVS (including motor vehicles and property or equipment owned by third
parties) which is material to the operation or conduct of PVS's Business.
PVS owns and has good title to all such owned personal property and,
effective as of the Closing, will own and have good title to such owned
property and, except as shown on Exhibit 4.6(c) or the other Exhibits hereto,
none of such personal property is subject to any security interest, mortgage,
pledge, conditional sales agreement or other lien or encumbrances. PVS has
delivered to Vaughn true and complete copies of all leases and other
agreements affecting personal property, all of which are valid and
enforceable against the respective lessors in accordance with their
respective terms. PVS is not in default under any such leases and other
agreements affecting personal property. Except as shown on Exhibit 4.6(c),
each item of personal property is in good operating condition and repair in
all material respects as of the date hereof (ordinary wear and tear excepted)
and is available on the Effective Date and on the Closing Date for immediate
use in PVS's Business.
(d) INTANGIBLES. Exhibit 4.6(d) is a true and complete list of all
Intangibles applied for, issued to or owned by PVS or
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under which PVS is licensed or franchised. All of the Intangibles are valid
and in good standing with respect to PVS and uncontested. PVS has delivered
to Vaughn copies of all documents establishing those Intangibles with respect
to PVS. PVS is not infringing upon or otherwise acting adversely in any
material respect to any Intangibles owned by any other person or persons. No
employee of PVS has any ownership right in or to PVS's proprietary
information, including, without limitation, computer programs used in PVS's
Business.
(e) REAL PROPERTY. Exhibit 4.6(e) contains a complete list and
description of all real property leased by PVS. Each of the real property
leases reflected on Exhibit 4.6(e) is in full force and effect. Accurate and
complete copies of such leases have been delivered by PVS to Vaughn. PVS has
complied with all material commitments and material obligations on its part
to be performed or observed pursuant to the terms of such leases. No event or
condition has happened or presently exists which constitute a default or,
after notice or lapse of time or both, would constitute a default under any
such lease. All real property leased by PVS is in condition and repair
adequate for its current use, is suitable for the purposes for which it is
presently being used and is adequate to meet all present requirements of
PVS's Business as currently conducted.
4.7 UNDISCLOSED LIABILITIES. Except as disclosed in Exhibit 4.7, PVS has
no liabilities or obligations of any nature, either individually or in the
aggregate, matured or unmatured, fixed or contingent, except such liabilities
and obligations which are;
(i) accrued or reserved against in PVS's Financial Statements or the notes
thereto or in the Book Value as adjusted pursuant to Section 3.2(a);
or
(ii) expressly disclosed in this Agreement or Exhibit 4.7, attached.
4.8 CONDUCT OF BUSINESS IN ORDINARY COURSE. Since December 31, 1995,
except as either disclosed on Exhibit 4.8 or in the other Exhibits hereto,
PVS has conducted its business only in the ordinary course and has not;
(i) sold, transferred, leased to others or otherwise disposed of any
assets, except for inventory and/or services sold in the ordinary
course of business, or assets which are not material to the
operation of PVS's Business;
(ii) canceled or compromised any material debt or claim or waived,
compromised or released any right, except for rights which are
not material to the operation of PVS's Business;
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(iii) suffered any damage, destruction or loss (whether or not covered
by insurance) that has materially and adversely affected the
assets, PVS or PVS's Business or prospects;
(iv) encountered any labor union organizing activity or had any actual
or known threatened employee strike, work stoppage, slow down or
lockout;
(v) transferred or granted any right under, or entered into any
settlement regarding the breach or infringement of any license,
patent, copyright, trademark, trade name, invention, franchise or
similar rights, or modified any existing right with respect
thereto;
(vi) instituted, been named as a party, settled or agreed to settle
any litigation, action or proceeding before any court or
governmental body;
(vii) failed to replenish PVS's inventories and supplies in a normal
and customary manner consistent with PVS's ordinary business
practices, nor made any purchase commitments in excess of the
normal, ordinary and usual requirements of PVS's Business or at
any price materially in excess of the then current market price,
or upon terms and conditions more onerous in any material respect
than those usual and customary in PVS's Business (given then
current industry conditions and circumstances), nor made any
material changes in PVS's marketing, selling, pricing,
advertising or personnel practices inconsistent with PVS's past
practices (other than price increases consistent with then
current industry conditions and circumstances);
(viii) failed to pay its liabilities as and when due in the ordinary
course of PVS's Business;
(ix) suffered any change, event or condition which has materially and
adversely affected PVS's condition (financial or otherwise),
properties, assets, liabilities or business;
(x) failed to maintain its facilities and equipment in a commercially
prudent and reasonable manner, other than any such failure which
would not materially and adversely affect PVS;
(xi) entered into any transaction, contract or commitment other than
in the ordinary course of PVS's Business;
10
(xii) created or assumed any mortgage, pledge, lien or encumbrance upon
any of PVS's assets other than liens reflected in the Exhibits
attached to this Agreement;
(xiii) made any material write down of the value of any of its assets;
(xiv) made any increase in the compensation of the employees of PVS, or
any increase in compensation payable to any officer or director
of PVS; or
(xv) canceled, compromised, excused, forgiven, postponed or applied
any portion of a customer deposit to any account receivable,
except for adjustments or credit vouchers in the ordinary course.
4.9 ENVIRONMENTAL MATTERS. Except as disclosed in Exhibit 4.9, PVS has not
received notice of any violation by PVS of any Environmental Law, and no
condition or event has occurred in the conduct of PVS's Business which, with
notice or passage of time or both, would constitute a violation of any
Environmental Law. Except as disclosed in Exhibit 4.9, no pollutants,
contaminants or hazardous or toxic wastes, substances or materials, as
defined by the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, the Resource Conservation and Recovery Act
of 1976, as amended, the Toxic Substances Control Act, or any other similar
federal, state or local statute applicable to PVS, have been manufactured,
generated, stored, handled, disposed, buried, dumped or used on, at or in
connection with any real property owned or leased by PVS during the use or
occupancy of said premises by PVS nor, to the knowledge of PVS, prior
thereto. Except as disclosed in Exhibit 4.9, no asbestos, asbestos containing
materials, polychlorinated biphenyls (PCBs), PCB compounds, or other
pollutants, contaminants, hazardous or toxic wastes, substances or materials,
to the knowledge of PVS, have been placed on any real property owned or
leased by PVS, nor have they been used, to the knowledge of PVS, in the
construction, repair or alteration of any portion of such real property by
PVS. Except as disclosed in Exhibit 4.9, there are no above-ground or
underground storage tanks, wells, pools, settling ponds, traps, drains or
other similar above-ground or subsurface structures present on or under the
real property owned or leased by PVS.
4.10 EMPLOYEE BENEFIT PLANS; ERISA.
(a) EXISTENCE OF PLANS. All "Employee Benefit Plans" as defined in
Section 3(3) of ERISA, sponsored, maintained or contributed to by PVS are
listed on Exhibit 4.10(a), and complete and accurate copies of the plans (or
related insurance policies) have been furnished to Vaughn. Except as
disclosed in Exhibit 4.10(a), PVS is not a party to, does not have in effect
or to become
11
effective after the date of this Agreement, any bonus, cash or deferred
compensation, severance, medical, health or hospitalization, pension, profit
sharing or thrift, retirement, stock option, employee stock ownership, life
or group insurance, death benefit, welfare, salesmen incentive, vacation,
sick leave, disability, trust agreement, arrangement or other welfare or
pension benefit plan (as such terms are defined by ERISA).
(b) ADMINISTRATION. Each employee benefit plan required to be listed
in Exhibit 4.10(a) has been administered in all material respects in compliance
with applicable provisions of ERISA and the Code.
(c) REPORTING AND DISCLOSURE. All reporting and disclosure
requirements under ERISA and the Code for the plans listed in Exhibit 4.10(a)
hereto have been complied with.
(d) INSURANCE. All benefits provided under all employee benefit plans
listed in Exhibit 4.10(a) are covered by insurance, other than the plans for
profit sharing, sick leave, personal leave, incentive pay and vacation.
(e) MULTI-EMPLOYER PLANS. PVS does not contribute to and is not
required to contribute to any "Multi-Employer Plan," as defined in
Section 414(f) of the Code and Section 3(37) of ERISA, and PVS has not
incurred or does not reasonably expect to incur any 'withdrawal liability"
under Section 4201, ET. SEQ. of ERISA.
(f) LIABILITY. Neither PVS, Vaughn, the Surviving Corporation, nor
any trade or business under common control with any of the foregoing (within
the meaning of Sections 414(b) and 414(c) of the Code), or any officers,
directors, employees or affiliates of the same shall, from and after the date
hereof, have any liability, obligation or responsibility with respect to any
Employee Benefit Plan maintained or provided by PVS, or any affiliate
thereof, before the date hereof as a result of PVS's noncompliance with
applicable law or plan provision with respect thereto prior to the Closing
Date.
4.11 EMPLOYEES; COLLECTIVE BARGAINING AGREEMENTS; LABOR RELATIONS.
(a) EMPLOYEES. Exhibit 4.11 (a) contains, as of the date shown on the
Exhibit, accurate and complete information as to the names of all employees
and rates of compensation currently and for the two calendar years prior
hereto including the date and amount of each change in such rate (whether in
the form of salaries, bonuses, commissions or other supplemental compensation
now or hereafter payable in group by categories as indicated on the Exhibit),
together with information as to any employment contracts or severance
arrangements involving the indebtedness of such employees to PVS and any
arrangements involving the indebtedness of PVS to
12
such employees in any amount. Except as described on Exhibit 4.11 (a), there
has been no strike or labor disturbance by any such employees affecting PVS
or PVS's Business and PVS does not know of any planned or impending imminent
departure from employment expressed to them by any key employee of PVS. PVS
maintains a workforce adequate to carry on its business as presently
conducted.
(b) EMPLOYMENT AGREEMENTS. PVS is not a party to any collective
bargaining agreement or any employment agreement with any employee of PVS, other
than the written Agreements with the PVS Shareholders attached as Exhibit
4.11(b). PVS has complied in all material respects with all laws and regulations
relating to the employment of labor, including those related to wages, hours,
collective bargaining, discrimination and the payment of Social Security or
similar taxes. There are no unfair labor practice charges or claims pending
against PVS nor any pending or threatened charges against PVS with respect to
any wage and hour, employment discrimination or other statutory violation by
PVS. There is no union campaign being conducted to solicit cards from employees
to authorize the union to request an NLRB certification election with respect to
any employees of PVS.
4.12 TAXES. PVS has filed all federal, state and local income tax returns
due prior to the Closing Date, and all other federal, state and local tax
returns due prior to the date hereof which are required to be filed by it, or
has appropriate, effective and unexpired extensions therefor and has timely paid
all estimated taxes required to be paid prior to the date hereof in connection
with such extensions, and has timely paid or caused to be paid all taxes shown
on those returns or on any assessment therefor received by PVS to the extent
that such taxes have become due and has timely paid all required estimated
taxes, or has set aside on its books reserves (segregated to the extent required
by sound accounting practice) adequate with respect thereto. Such returns have
been prepared in accordance with the applicable provisions of the Code and the
rules and regulations thereunder and with the applicable provisions of the state
and local laws, rules and regulations concerning taxation. PVS has delivered
true and complete copies of all such tax returns and requests for extension for
the tax years ended December 31, 1995 to Vaughn. To the extent that any of PVS's
tax returns have been audited by any taxing authority, any matters raised during
such audits have been resolved to the satisfaction of such taxing authority.
Except as reflected on Exhibit 4.12, there have been no such audits since
January 1, 1985. No deficiencies that have been assessed against PVS by any
federal, state or local taxing authority are outstanding. PVS has not granted
any extension of the limitation period applicable to any claim for taxes or
assessments for any tax year. PVS has never filed, or otherwise made and as of
the Closing Date, shall have never filed, or otherwise made, a consent under
Section 341(f) of the Code or an election under Section 338 of the Code. PVS
files its federal, state, local and other tax returns on the basis of a fiscal
year ending December 31.
13
4.13 CONTRACTS. Exhibit 4.13 lists all contracts to which PVS is a party or
by which it is bound, including contracts to supply products or service at
specified price or contracts to purchase or lease equipment, real property,
computers and systems, and which are material to PVS. The term "material," as
used in the previous sentence shall exclude contracts involving less than Five
Thousand Dollars ($5,000) in costs to PVS, except if such contracts excluded in
the aggregate exceed Ten Thousand Dollars ($10,000). All such contracts are
valid, binding and enforceable against the other contracting parties thereto in
accordance with their respective terms, and in full force and effect. Except as
noted on Exhibit 4.13, there is not under any such contract any default by PVS,
or to the knowledge of PVS, any other party thereto or, to the knowledge of PVS,
has any event occurred which, after notice or lapse of time or both, would
result in a default which would enable any party thereto to terminate such
contract. Except as set forth on Exhibit 4.13, PVS has not been advised of any
intention by any party to a customer or supply contract to;
(i) terminate or amend the terms thereof;
(ii) refuse to renew the same (if renewable) upon expiration of its
terms; or
(iii) renew the same (if renewable) upon expiration only on terms and
conditions which are more onerous than those in the existing
contract.
True and complete copies of all contracts listed on Exhibit 4.13 (together with
any and all amendments thereto) have been delivered to Vaughn. Except as
reflected in Exhibit 4.13, none of the contracts relating to personal property
would be classified for accounting purposes as capital or financing leases. None
of the listed contracts would be breached by virtue of the consummation of the
transactions contemplated hereby, and the consummation of the transactions
contemplated hereby will not affect the contractual validity or enforceability
of any of the contracts.
4.14 COMPLIANCE WITH LAWS; PERMITS AND LICENSES. Exhibit 4.14 is an
accurate and complete list of all permits and licenses currently issued to or
held by PVS as of the date hereof which are material to the operation of PVS's
Business. PVS has complied with all such permits and licenses and all laws,
rules, regulations and ordinances of any government or governmental agency
applicable to PVS or PVS's Business. Neither the ownership nor use of PVS's
properties nor the conduct of PVS's Business conflicts in any material respect
with the rights of any other person, firm or corporation. PVS is not in
violation of, or in default under, any terms or provisions of any lien,
mortgage, lease, license, permit, deed of trust, agreement, instrument, order,
judgment or decree. All of the licenses and permits listed on Exhibit 4.14 are
in full force and effect. PVS has delivered true and complete copies of all
14
licenses and permits listed on Exhibit 4.14 (together with any and all
amendments thereto) to Vaughn. All reports of PVS to municipal authorities are
true in all material respects and have been duly filed when due. Other than the
licenses and permits listed on Exhibit 4.14, PVS requires no other license,
franchise or permit to carry on PVS's Business as now conducted. None of the
licenses or permits listed on Exhibit 4.14 will be breached by virtue of the
transactions contemplated by this Agreement.
4.15 INSURANCE. Exhibit 4.15 is an accurate and complete list of all fire,
theft, casualty, liability and other insurance policies insuring PVS and PVS's
Business, specifying the type and amount of coverage, the name of the insurance
carrier, policy number and expiration dates. All such policies are in full force
and effect. Except as set forth on Exhibit 4.15, no insurance policy of PVS has
been canceled and, no application of PVS for an insurance policy has been
rejected during the past five years. The policies listed on Exhibit 4.15 insure
PVS's tangible, real and personal property and assets, whether owned or leased,
against loss or damage by fire or other casualty amounts equal to or in excess
of 100% of the replacement value thereof. PVS has promptly and adequately
notified its insurance carriers of any and all claims known to PVS with respect
to the operations or products of PVS for which PVS is insured.
4.16 CLAIMS; LEGAL ACTIONS. Except as set forth on Exhibit 4.16, there is
no claim, legal action, counterclaim, suit, arbitration, governmental
investigation or other legal, administrative or tax proceeding, nor any order,
decree or judgment in progress or pending, or to the knowledge of PVS,
threatened against or relating to PVS or PVS's Business, any employee benefit
plans described in any Exhibits to this Agreement, or to the transactions
contemplated by this Agreement, nor does PVS know of any basis for the same.
Except as set forth in Exhibit 4.16, there are no applications, complaints or
proceedings pending, or to the knowledge of PVS, threatened;
(i) before any federal or state agency involving charges of illegal
discrimination by PVS under any federal or state employment, civil
rights, disability discrimination or other similar laws or
regulations; or
(ii) before any federal, state or local agency involving environmental or
zoning issues relating to PVS under any federal, state or local
environmental or zoning law or regulation.
Except as set forth on Exhibit 4.16, no order, writ, injunction or decree is in
effect or, to the knowledge of PVS, is threatened with respect to PVS or the PVS
Shares. To the knowledge of PVS, there is no basis for any legal proceeding
against PVS that, if adversely
15
determined, would have a Material Adverse Effect on PVS or the PVS Shares.
4.17 POWERS OF ATTORNEY; BANK ACCOUNTS AND SAFE DEPOSIT BOXES. Exhibit 4.17
lists all powers of attorney, all bank accounts and all safe deposit boxes of
PVS, and the names of all persons authorized to draw thereon or to have access
thereto.
4.18 BROKERS. Neither PVS nor the PVS Shareholders have incurred any
liability for any finders or brokerage fees or commissions in connection with
this Agreement.
4.19 ACCOUNTING TREATMENT MATTERS.
(a) VAUGHN OWNERSHIP. Except as shown in Exhibit 4.19(a), neither PVS
nor the PVS Shareholders own or are the beneficial owners of any Vaughn
securities or common stock as of the date hereof and continuing until the
Closing Date.
(b) POST-CLOSING ACQUISITIONS. For one year after the Closing Date,
no PVS Shareholder may acquire or commit to acquire any additional shares of the
Surviving Corporation from any other PVS Shareholder.
(c) CERTAIN PVS TRANSACTIONS. Except as disclosed on Exhibit 4.19(c),
for a period of two (2) years prior to the Closing Date;
(i) there shall have been no change in ownership, new issuances or
transfers of any PVS Shares;
(ii) there shall have been no PVS stock splits or stock dividends;
(iii) there shall have been no changes in PVS's cash dividend policy;
(iv) there shall have been no issuance of any PVS options, warrants or
other residual equity interests by PVS;
(v) PVS shall have not operated any employee stock award programs;
(vi) neither PVS nor the PVS Shareholders have been a party to any
so-called "standstill agreement" or "lock-up arrangements" with
respect to any PVS Shares; or
(vii) there shall not have been any acquisitions by PVS of treasury
shares or any sales of treasury shares by PVS.
16
4.20 COMPLETE DISCLOSURE. No representation, warranty or statement made by
PVS or the PVS Shareholders in this Agreement, the Exhibits attached hereto, or
in any other material furnished or to be furnished by PVS to Vaughn or the
Surviving Corporation, pursuant to this Agreement or the transactions
contemplated hereby, contains or shall contain any untrue statement of a
material fact, or omits or shall omit to state a material fact required to be
stated or necessary to make such representations, warranties or statements, in
the light of the circumstances under which they were made, not misleading.
4.21 SURVIVABILITY. The representations, warranties and agreements of PVS
made in this Article and throughout this Agreement shall survive the Closing and
shall remain in full force and effect thereafter until expiration in accordance
with the applicable statutes of limitations pursuant to Minnesota and, if
applicable, federal law.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF VAUGHN
Vaughn makes the following representations and warranties to PVS with the
intention that PVS may rely upon the same and acknowledge that the same shall be
true on the Effective Date and as of the Closing Date and that such
representations and warranties shall survive the Closing of this transactIon.
5.1 ORGANIZATION AND STANDING. Vaughn is a corporation duly organized,
validly existing and in good standing under the laws of the State of Minnesota
and is duly qualified to do business in all other states in which a failure to
qualify would have a Material Adverse Effect on Vaughn's Business. Vaughn has
the requisite corporate power and authority to own, lease and use its properties
and assets and is entitled to operate its business as and in the places where
such properties and assets are now owned, leased or operated as such business is
now conducted.
5.2 AUTHORITY AND ENFORCEABILITY. Vaughn has all requisite corporate power
and authority to enter into this Agreement and to perform all of its obligations
under this Agreement. The execution, delivery and performance of this Agreement
have been duly authorized by all necessary corporate action on the part of
Vaughn and has been approved by the Board of Directors of Vaughn. This Agreement
constitutes the valid and binding agreement of Vaughn enforceable in accordance
with its terms except as may be limited by bankruptcy, moratorium and insolvency
laws and other laws affecting the rights of creditors generally and except as
may be limited by the availability of equitable remedies.
5.3 COMPLIANCE. Neither the execution, delivery or performance of this
Agreement by Vaughn nor the consummation of the transactions
17
contemplated hereby will, with or without the giving of notice or the passage
of time, or both, conflict with, result in a default or loss of rights (or
give rise to any right of termination, cancellation or acceleration) under,
or result in the creation of any lien, charge or encumbrance pursuant to any;
(i) provision of the Articles of Incorporation or Bylaws of Vaughn;
(ii) note, bond, indenture, mortgage, deed of trust, contract,
agreement, lease or other instrument or obligation to which
Vaughn is a party or by which it may be bound or affected which
is material to Vaughn; or
(iii) law, order, judgment, ordinance or decree to which Vaughn is a
party or by which it may be bound or affected.
5.4 SEC FILINGS; FINANCIAL STATEMENTS. Vaughn has made available to PVS the
SEC Filings which are all the documents that Vaughn was required to file with
the SEC since January 1, 1994. As of their respective dates, the SEC Filings
complied in all material respects with the applicable requirements of the
Securities Act of 1933 and the Securities Exchange Act of 1934 and the rules and
regulations promulgated thereunder applicable to such SEC Filings. The
financial statements of Vaughn included in the SEC Filings complied as to form
with the regulations of the SEC with respect thereto, were prepared in
accordance with generally accepted accounting principles applied on a consistent
basis during such periods (except as may be indicated in the notes thereto or,
in the case of the unaudited statements, as permitted by Form 10-0), accurately
reflect in all material respects the books, records and accounts of Vaughn and
present fairly (subject, in the case of the unaudited statements, for year end
adjustments of a normal recurring nature) the financial condition, assets and
liabilities of Vaughn as of the dates thereof and the results of operations and
cash flows for the periods then ended.
5.5 CAPITALIZATION. The authorized capital stock of Vaughn and all
outstanding securities including all warrants, options or other right to acquire
securities of Vaughn are fully and accurately disclosed in the SEC filings or
other materials furnished by Vaughn to PVS. Exhibit 5.5 accurately summarizes
the number of shares of such capital stock of Vaughn and all warrants and
options for capital stock of Vaughn which are currently outstanding. All of the
Vaughn shares presently issued or to be issued pursuant to this Agreement are
and will be validly issued, fully paid and nonassessable, free of preemptive
rights and rights of first refusal as of the Closing and have not been and will
not be issued at Closing in violation of federal or state securities laws.
Effective as of Closing, the PVS Shareholders shall have good and valid title
18
to the shares of the Surviving Corporation issued to them free and clear of
all pledges, security interests, liens, charges, encumbrances, agreements,
equities, claims and options of any nature.
5.6 CONDUCT OF VAUGHN'S BUSINESS IN ORDINARY COURSE. Except as disclosed
in Exhibit 5.6, Vaughn has conducted its business since January 31, 1996, in
the ordinary course of business and has not taken any action or suffered any
change, event or condition which has or could have any Material Adverse
Effect on the value of Vaughn, the Surviving Corporation, or their shares.
5.7 CLAIMS; LEGAL ACTIONS. Except as set forth on Exhibit 5.7, there is
no claim, legal action, counterclaim, suit, arbitration, governmental
investigation or other legal, administrative or tax proceeding, nor any
order, decree or judgment in progress or pending, or to the knowledge of
Vaughn threatened, relating to Vaughn or Vaughn's Business, any employee
benefit plans of Vaughn, or to the transactions contemplated by this
Agreement, nor does Vaughn know of any basis for the same. Except as set
forth in Exhibit 5.7, there are no applications, complaints or proceedings
pending, or to the knowledge of Vaughn, threatened;
(i) before any federal or state agency involving charges of illegal
discrimination by Vaughn under any federal or state employment, civil
rights, disability discrimination or other similar laws or
regulations; or
(ii) before any federal, state or local agency involving environmental or
zoning issues relating to Vaughn under any federal, state or local
environmental or zoning law or regulation.
Except as set forth on Exhibit 5.7, no order, writ, injunction or decree is in
effect or, to the knowledge of Vaughn, is threatened with respect to Vaughn or
Vaughn's Business. To the knowledge of Vaughn, there is no basis for any legal
proceeding against Vaughn that, if adversely determined, would have a Material
Adverse Effect on Vaughn.
5.8 COMPLETE DISCLOSURE. No representation, warranty or statement made by
Vaughn in this Agreement, the Exhibits attached hereto, or in any other material
furnished or to be furnished by Vaughn to PVS or the Surviving Corporation,
pursuant to this Agreement or the transactions contemplated hereby, contains or
shall contain any untrue statement of a material fact, or omits or shall omit to
state a material fact required to be stated or necessary to make such
representations, warranties or statements, in the light of the circumstances
under which they were made, not misleading. Except as disclosed to PVS in the
Vaughn SEC filings and except as otherwise disclosed in this Agreement or the
Exhibits hereto, there are no conditions that exist as of the date of this
Agreement which
19
would cause Vaughn to be in violation of any of its representations or
warranties contained herein.
5.9 SURVIVABILITY. The representations, warranties and agreements of
Vaughn made in this Article and throughout this Agreement shall survive the
Closing and shall remain in full force and effect thereafter until expiration
in accordance with the applicable statutes of limitations pursuant to
Minnesota and, if applicable, federal law.
ARTICLE 6
OTHER AGREEMENTS
6.1 RULE 144 REPORTING. With a view to make available the benefits of
certain rules and regulations of the Securities and Exchange Commission which
may permit the sale of restricted securities (as that term is used in the
Securities Act) to the public without registration, Vaughn or (after the
Closing) the Surviving Corporation shall;
(i) make its best efforts to make and keep available "adequate
current public information" as those terms are understood and
defined in Rule 144(c) under the Securities Act, at all times
from and after the Closing Date;
(ii) use its best efforts to file with the Securities and Exchange
Commission in a timely manner all reports and other documents
required of the Surviving Corporation under the Securities Act
and the Exchange Act; and
(iii) so long as a PVS Shareholder owns any restricted securities of
the Surviving corporation, furnish to such PVS Shareholder
forthwith upon request a written statement by the Surviving
Corporation as to its compliance with the reporting requirements
of Rule 144 and of the Securities Act and Exchange Act, a copy of
the most recent annual or quarterly report of the Surviving
Corporation, and such other reports and documents so filed as a
PVS Shareholder may reasonably request in order to avail himself
of any rule or regulation of the Securities and Exchange
Commission allowing a PVS Shareholder to sell any such restricted
securities without registration.
6.2 STOCK PLEDGE AGREEMENT. On or before the Closing Date, the PVS
Shareholders and the Surviving Corporation shall execute a Stock Pledge
Agreement in the form of Exhibit 6.2.
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6.3 RESTRICTIONS ON TRANSFER OF STOCK CONSIDERATION. PVS and the PVS
Shareholders acknowledge and agree that the Stock Consideration has not been and
will not be registered with the SEC or any state securities regulatory agency
and as such may not be sold, pledged or otherwise transferred without such
registration or an appropriate exemption therefrom. PVS and the PVS Shareholders
also acknowledge and agree that, except as provided in Section 6.3, Vaughn and
the Surviving Corporation shall have no obligation to register the shares of
common stock of Vaughn comprising the Stock Consideration. On or before the
Closing Date, PVS and the PVS Shareholders agree to execute an Investment Letter
in the form of Exhibit 6.3.
6.4 PUBLIC ANNOUNCEMENT. The parties shall cooperate in developing a public
announcement announcing the transactions contemplated by this Agreement. Neither
party shall make any public announcement without the advance consent of the
other party, which shall not be unreasonably withheld.
6.5 EXHIBITS. All Exhibits called for in this Agreement shall be provided
to the appropriate party at least twenty (20) days prior to Closing.
6.6 STALE ACCOUNTS RECEIVABLE. Accounts receivable in excess of ninety (90)
days old not reflected in the computation of Book Value shall remain assets of
the Surviving Corporation and the Surviving Corporation shall use its best
efforts to collect such accounts. To the extent the Surviving Corporation
collects such accounts, net proceeds collected (net of costs of collection)
shall be distributed pro-rata to the PVS Shareholders. The PVS Shareholders
shall receive accountings at least quarterly showing all collections and all
remaining receivables which are being collected for their benefit.
6.7 EMPLOYMENT AGREEMENTS. On or before the Closing Date, the PVS
Shareholders and the Surviving Corporation shall have executed the Employment
Agreements in the form attached as Exhibit 6.7 providing for the employment of
each of the PVS Shareholders as employees of the Surviving Corporation.
6.8 COSTS AND EXPENSES. Each party shall bear the costs of its own due
diligence, attorneys' fee and all other expenses incurred by such party in
connection with the negotiation and consummation of this Agreement.
ARTICLE 7
CONDITIONS PRECEDENT TO PVS'S OBLIGATIONS
The obligations of PVS are subject to the satisfaction, at or before the
Closing, of the conditions set forth below. The benefit
21
of these conditions is for PVS only and may be waived by PVS in writing at
anytime in its sole discretion.
7.1 ACCURACY OF VAUGHN'S REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Vaughn in this Agreement are true and correct
in all material respects as of the date hereof and as of the Closing Date.
7.2 PERFORMANCE BY VAUGHN. Vaughn shall have performed, satisfied and
complied in all material respects with all covenants, agreements and conditions
required to be performed by it.
7.3 DELIVERIES AT CLOSING. At the Closing, Vaughn shall have delivered
all instruments and agreements required to be delivered by it pursuant to the
terms of this Agreement.
7.4 CONSENTS. Vaughn shall have obtained and delivered to PVS all consents
required by any party in order to consummate the transactions contemplated by
this Agreement.
7.5 OPINION OF COUNSEL. PVS shall have received the favorable opinion,
dated the date of Closing, of Vaughn's counsel, in the form of Exhibit 7.5.
7.6 CHANGES IN BUSINESS. From and after the date hereof, there shall have
occurred or be threatened no event relative to Vaughn's Business not disclosed
in the Exhibits hereto which is reasonably likely to have a Material Adverse
Effect.
7.7 BOARD OF DIRECTOR APPROVAL. This Agreement and the transactions
contemplated hereby shall have been adopted and approved by the Board of
Directors of Vaughn.
7.8 EMPLOYMENT AGREEMENTS. The Employment Agreements in the form of
Exhibit 6.7 shall have been duly executed and delivered.
ARTICLE 8
CONDITIONS PRECEDENT TO VAUGHN'S OBLIGATIONS
The obligations of Vaughn are subject to the satisfaction, at or before the
Closing, of the conditions set forth below. The benefit of these conditions is
for Vaughn only and may be waived by Vaughn in writing at anytime in its sole
discretion.
8.1 ACCURACY OF PVS'S REPRESENTATIONS AND WARRANTIES. The representations
and warranties of PVS and the PVS Shareholders in this Agreement as supplemented
and modified through the Closing Date are true and correct in all material
respects as of the date hereof and as of the Closing Date.
22
8.2 PERFORMANCE BY PVS. PVS shall have performed, satisfied and complied
in all material respects with all covenants, agreements and conditions required
to be performed by it.
8.3 DELIVERIES AT CLOSING. At the Closing, PVS shall have delivered all
instruments and agreements required to be delivered by it pursuant to the terms
of this Agreement.
8.4 CONSENTS. PVS shall have obtained and delivered to Vaughn all consents
required by any party in order to consummate the transactions contemplated by
this Agreement.
8.5 OPINION OF COUNSEL. Vaughn shall have received the favorable opinion,
dated the date of Closing, of PVS's counsel, in the form of Exhibit 8.5.
8.6 CHANGES IN BUSINESS. From and after the date hereof, there shall have
occurred or be threatened no event relative to PVS's Business not disclosed in
the Exhibits hereto which is reasonably likely to have a Material Adverse
Effect.
8.7 SHAREHOLDER APPROVAL; DISSENTING SHARES. This Agreement and the
transactions contemplated hereby shall have been adopted and approved by the
holders of 100% of the PVS Shares. There shall be no dissenting PVS
Shareholders.
ARTICLE 9
TERMINATION
9.1 TERMINATION. This Agreement may be terminated and the Merger abandoned
at anytime on or before the Closing Date, whether before or after adoption by
the Shareholders of PVS or the Board of Directors of Vaughn;
(i) by mutual consent of PVS and Vaughn;
(ii) by PVS or Vaughn, if any governmental authority shall have
enacted, issued, promulgated, enforced or entered any law or
judgment which has the effect of prohibiting consummation of the
transactions contemplated by this Agreement;
(iii) by PVS or Vaughn, if any of the conditions precedent to their
respective obligations contained in Articles 7 and 8 of this
Agreement required to have been met have not been met as of the
Closing Date and such breach or failure has not been waived by
the non-breaching party or cured by the breaching party; or
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(iv) by PVS or Vaughn if, subsequent to delivery of the Exhibits
hereto, such Exhibits, individually or collectively, disclose
events or conditions which have or which are reasonably likely to
have a Material Adverse Effect.
9.2 EFFECT OF TERMINATION. Upon the termination of this Agreement for the
reasons set forth in Section 9.1, this Agreement shall become null and void and
the parties will have no remedies against, and will have no liability to, each
other or their respective officers, directors, shareholders, partners,
representatives or agents. The Confidentiality Agreement previously executed by
the parties shall continue in full force and effect without regard to
termination of this Agreement.
ARTICLE 10
CLOSING
10.1 CLOSING PLACE AND DATE. The Closing shall take place on June 28, 1996
at the offices of Rider, Bennett, Egan & Arundel, LLP, 2000 Metropolitan Centre,
333 South Seventh Street, Minneapolis, Minnesota 55402, or such other place and
time as the parties shall mutually agree.
10.2 DELIVERIES BY PVS. PVS shall deliver to Vaughn and the Surviving
Corporation the following, executed where appropriate by PVS and the PVS
Shareholders:
(i) certificates of Merger, certified by the Secretaries of State of
Illinois and Minnesota, with respect to the Merger of PVS into
Vaughn;
(ii) within forty-five (45) days, after the Closing Date, after
determination of Book Value, in accordance with Section 3.2(a),
stock certificates of PVS held by the PVS Shareholders
representing 100% of the issued and outstanding common stock of
PVS, duly endorsed for transfer;
(iii) resolutions adopted by the Board of Directors of PVS and the PVS
Shareholders authorizing and approving the Merger and the other
transactions contemplated by this Agreement;
(iv) certificates of the Chief Executive Officer and the PVS
Shareholders of PVS certifying as to the accuracy of the
representations and warranties of PVS set forth in Article 4
hereof;
(v) the consents described in Section 8.4 hereof;
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(vi) the Other Agreements contemplated by Article 6 hereof;
(vii) the stock books, stock ledgers, minute books, corporate seals and
all other corporate records of PVS;
(viii) PVS's Articles of Incorporation, certified by the Secretary of
State -of Illinois as of a date within three days of the Closing
Date, and PVS's Bylaws, certified by the Secretary of PVS as of
the Closing Date;
(ix) a letter executed by a duly authorized representative of Wolf &
Company, LLP authorizing Vaughn and the Surviving Corporation to
rely on its Independent Accountant's Review relating to the
Financial Statements of PVS as of December 31, 1996;
(x) the Opinion of Counsel described in Section 8.5; or
(xi) all other documents, certificates, instruments and writings
required to be delivered by PVS or that may be reasonably
requested by Vaughn a reasonable time prior to the Closing.
10.3 DELIVERIES BY VAUGHN. Vaughn shall deliver to PVS and the PVS
Shareholders the following, executed where appropriate by duly authorized
officers of Vaughn:
(i) certificate of Merger, certified by the Secretary of State of
Minnesota, with respect to the Merger of PVS into Vaughn;
(ii) within forty-five (45) days after the Closing Date, after
determination of Book Value in accordance with Section 3.2(a),
certificates representing the Stock Consideration to be issued
and delivered pro rata to the PVS Shareholders or, to the extent
provided in Section 11.4,, delivered to the Surviving Corporation
pursuant to the terms of the Stock Pledge Agreement;
(iii) resolutions adopted by the Board of Directors of Vaughn
authorizing and approving the Merger and the other transactions
contemplated by this Agreement;
(iv) certificates of the Chief Executive Officer and Chief Financial
Officer of Vaughn certifying as to the accuracy of the
representations and warranties of Vaughn set forth in Article 5
hereof;
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(v) the consents described in Section 7.4 hereof;
(vi) the Other Agreements contemplated by Article 6 hereof;
(vii) the Opinion of Counsel described in Section 7.5; or
(viii) all other documents, certificates, instruments and writings
required to be delivered by Vaughn or that may be reasonably
requested by PVS or the PVS Shareholders a reasonable time prior
to the Closing.
ARTICLE 11
INDEMNIFICATION
11.1 INDEMNIFICATION OF SURVIVING CORPORATION BY PVS SHAREHOLDERS.
Notwithstanding the Closing, the PVS Shareholders shall jointly and severally
indemnify and hold Surviving Corporation harmless against and in respect of, and
shall reimburse Surviving Corporation for:
(i) any and all losses, liabilities or damages, including all
reasonable attorneys' fees, court costs, and costs of collection,
resulting from any untrue representation, breach of warranty or
non-fulfillment of any covenant or agreement by PVS or the PVS
Shareholders contained in this Agreement after giving effect to
additional disclosure made by PVS and the PVS Shareholders by
delivery of the Exhibits hereunder;
(ii) any claims for finders fees or brokerage or other commission by
any person, firm or corporation, including all reasonable
attorneys fees, court costs and costs of collection, arising by
reason of any services alleged to have been rendered to or at the
instance of PVS or the PVS Shareholders with respect to this
Agreement or any of the transactions contemplated by this
Agreement; and
(iii) any and all actions, suits, proceedings, claims, demands,
assessments, judgments, reasonable costs and expenses, including
all reasonable attorneys' fees, court costs and costs of
collection, incident to any of the foregoing or incurred in
investigating or attempting to avoid the same or to oppose the
imposition thereof consistent with the other terms of this
Agreement.
(iv) the failure to collect any and all accounts receivable of PVS
which were less than ninety (90)
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days old as of the Closing Date (net of reserve reflected in the
final determination of Book Value in accordance with
Section 3.2(a)) within ninety (90) days of their respective due
dates.
11.2 INDEMNIFICATION OF THE PVS SHAREHOLDERS BY VAUGHN. Notwithstanding the
Closing, Vaughn and the Surviving Corporation, as successor to Vaughn's
obligations, shall indemnify and hold the PVS Shareholders harmless against and
in respect of, and shall reimburse the PVS Shareholders for:
(i) any and all losses, liabilities or damages, including all
reasonable attorneys' fees, court costs, and costs of collection,
resulting from any untrue representation, breach of warranty or
non-fulfillment of any covenant or agreement by Vaughn contained
in this Agreement;
(ii) any claims for finders fees or brokerage or other commission by
any person, firm or corporation, including all reasonable
attorneys fees, court costs and costs of collection, arising by
reason of any services alleged to have been rendered to or at the
instance of Vaughn with respect to this Agreement or any of the
transactions contemplated by this Agreement; and
(iii) any and all actions, suits, proceedings, claims, demands,
assessments, judgments, reasonable costs and expenses, including
all reasonable attorneys' fees, court costs and costs of
collection, incident to any of the foregoing or incurred in
investigating or attempting to avoid the same or to oppose the
imposition thereof consistent with the other terms of this
Agreement.
11.3 CLAIMS PROCEDURE. The following exclusive procedure shall govern any
and all indemnity claims which may be brought pursuant to the terms of this
Agreement.
(a) NOTICE OF CLAIM. The PVS Shareholders may seek indemnification
from Vaughn, or the Surviving Corporation, as successor to Vaughn. The Surviving
Corporation may seek indemnification from the PVS Shareholders. The party
seeking indemnification shall promptly give written notice to the Indemnifying
Party of all claims whether between the parties or raised by a third party, that
could constitute a claim for indemnification. The written notice shall specify
to the extent known by the party seeking indemnification:
(i) the factual basis for such claim and the alleged violation of this
Agreement, and
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(ii) the amount of the claim.
(b) INVESTIGATION: PAYMENT. Following receipt of notice from the
party seeking indemnification, the Indemnifying Party shall have 30 days to make
such investigation of the claim as the Indemnifying Party deems necessary or
desirable. For the purposes of such investigation, the party seeking
indemnification agrees to make available to the Indemnifying Party and/or its
authorized representatives the information relied upon by the party seeking
indemnification to substantiate the claim, as well as any other information
bearing thereon reasonably requested by the Indemnifying Party. If the party
seeking indemnification and the Indemnifying Party agree at or prior to the
expiration of the 30 day period (or any mutually agreed upon extension thereof)
to the validity and amount of such claim, the Indemnifying Party shall
immediately pay to the party seeking indemnification the full amount of the
claim.
(c) ARBITRATION. If the party seeking indemnification and the
Indemnifying Party do not agree within 30 days from the date of a claim (or any
mutually agreed upon extension thereof) the dispute shall be settled by
arbitration in accordance with the commercial rules of the American Arbitration
Association, such arbitration to be venued in Chicago, Illinois. The decision of
the Arbitrator(s) shall be final and binding upon the parties. Any expenses of
such arbitration including, without limitation, the fees of the arbitrators,
shall be paid as determined appropriate by the arbitrators. Third party claims
shall be settled by such means as may be appropriate subject to the terms of
11.3(d), below.
(d) PARTICIPATION IN DEFENSE. With respect to any claim made by a
third party as to which any party is entitled to indemnification, the
Indemnifying Party shall have the right, at its own expense, to participate
in or assume control of the defense of such claim, and the party seeking
indemnification shall cooperate fully with the Indemnifying Party. If the
Indemnifying Party elects to assume control of the defense of any such
third-party claim, the party seeking indemnification shall have the right to
participate in the defense of such claim at its own expense and, if it so
elects, the Indemnifying Party shall have no right to settle or compromise
such third-party claim. If the Indemnifying Party does not elect to assume
control or otherwise participate in the defense of any such third-party
claim, it shall be bound by the results obtained by the party seeking
indemnification with respect to such claim.
(e) COLLATERAL. If an indemnification amount owing by the PVS
Shareholders is determined by mutual agreement or by arbitration as provided in
this Section and not satisfied by the PVS Shareholders within 15 days after such
a determination, then such claim shall be satisfied by:
(i) offset against payments otherwise due the PVS Shareholders and, if
such offset is not sufficient to satisfy the
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indemnification obligation; or
(ii) pursuant to the terms of the Stock Pledge Agreement attached as
Exhibit 6.2.
11.4 LIMITATION OF INDEMNIFICATION OBLIGATION. Notwithstanding any other
provisions in this Agreement, the liabilities of the parties under this
Agreement shall be limited as follows:
(i) Except as provided in Section 11.4(iv), a party's aggregate
liability for any and all claims (including, without limitation,
claims of any regulatory authority) shall be limited to the sum
obtained by multiplying the value of the Stock Consideration as
of the Closing Date by Ten Percent (10%).
(ii) Except as provided in Section 11.4(iv),a party's aggregate
liability for any and all claims (limited as provided in Section
11.4(i)) shall continue until issuance of the independent audit
report on the Surviving Corporation for the Surviving
Corporation's fiscal year ending January 31, 1997.
(iii) The provisions of Section 11.4(ii) notwithstanding, a party
shall remain liable for all claims brought pursuant to this
Section prior to the date specified in Section 11.4(ii) until
resolution and satisfaction of such claim in accordance with this
Section.
(iv) Between the date hereof and the Closing Date, the parties shall
conduct such diligence as they consider necessary and
appropriate. To the extent that the parties discover specific
contingent liabilities of any party during the diligence process,
the parties shall use their best efforts to quantify the
potential exposure associated with such contingent liability and
the potential liability of the obligated party for
indemnification claims shall increase by a percentage of the
value of the Stock Consideration equal to the agreed value of
such contingent liability. At closing, such Stock Consideration
shall be subject to the terms of the Stock Pledge Agreement
pending resolution of such contingencies. If the parties cannot
agree upon the value of such contingent liability or if such
value exceeds an additional Ten Percent (10%) of the Stock
Consideration hereunder, either party may elect to cancel and
terminate this Agreement and elect not to proceed with the
Merger.
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(v) The parties intend that the Merger contemplated by this Agreement
shall be treated as a "pooling of interests" in accordance with
generally accepted accounting principles and rules and
regulations promulgated by the SEC. To the extent that any
provision of this Section is deemed, by the SEC or in the
judgment of the Surviving Corporation, to make the "pooling of
interests" method of accounting unavailable, such provision shall
be deemed null and void and the indemnification provisions of
this Section shall be deemed amended to the extent required to
qualify for "pooling of interests" accounting treatment.
11.5 SOLE REMEDY. The rights of the Surviving Corporation and the rights of
the PVS Shareholders as set forth and as limited in this Article Il, shall be
the sole and exclusive remedies of Vaughn, or the Surviving Corporation as its
successor, and of PVS and the PVS Shareholders hereunder.
ARTICLE 12
POST-CLOSING AGREEMENTS
12.1 FURTHER ASSURANCES. Subsequent to the Closing Date, to the extent that
any additional instruments, agreements or consents are reasonably necessary to
consummate the transactions contemplated by this Agreement, the parties agree to
cooperate fully and to execute such instruments, agreements or consents in a
timely fashion upon request by another party hereto.
ARTICLE 13
MISCELLANEOUS
13.1 GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the laws of the State of Minnesota, excluding any choice of law
rules that may direct the application of the laws of another jurisdiction.
13.2 ENTIRE AGREEMENT. This Agreement and the exhibits and agreements
attached hereto constitute the entire agreement of the parties with respect to
the subject matter hereof and may not be modified, amended, or terminated except
by a written agreement signed by all of the parties hereto. The Confidentiality
Agreement previously executed by the parties shall remain in full force and
effect notwithstanding the Closing of the transactions contemplated by this
Agreement, except as may be required by law or generally accepted accounting
principles.
13.3 WAIVER AND AMENDMENT. Any party may waive any provision, breach or
default of this Agreement; provided, however, that no
30
waiver of any provision, breach or default hereunder shall be considered
valid unless in writing and signed by the party giving such waiver, and no
waiver shall be deemed a waiver of any other provision or any subsequent
breach or default of the same or similar nature.
13.4 NOTICES. Any notices or other communications to any parties hereto
shall be deemed given when delivered by hand, facsimile transmission with
receipt confirmed, or certified mail, return receipt requested, to the
addresses set forth below, or to such other address as the parties may
designate from time to time, by written notice to the other parties:
to PVS: Satastar Corporate Services, Inc.
Attn: Robert J. Vavra
130 East St. Charles Road
Carol Stream, Illinois 60188
with a copy to: Wilbert F. Crowley
Cowen, Crowley & Nord, P.C.
55 West Monroe Street, Suite 500
Chicago, Illinois 60603
to Vaughn and/or Vaughn Communications, Inc.
Surviving Corporation: Attn: E. David Willette
5050 West Seventy-Eighth Street
Minneapolis, MN 55435
with a copy to: Vaughn Communications, Inc.
Attn: Charles Reinhart
5050 West Seventy-Eighth Street
Minneapolis, MN 5543
with an additional Barry F. Clegg, Esq.
copy to: Rider, Bennett, Egan & Arundel,
P.L.L.P.
2000 Metropolitan Centre
333 South Seventh Street
Minneapolis, Minnesota 55402
to PVS Shareholders: Robert J. Vavra
(home address)
Carl R. Birns
(home address)
Richard J. Polizzi
(home address)
with a copy to: Wilbert F. Crowley
Cowen, Crowley & Nord, P.C.
55 West Monroe Street, Suite 500
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Chicago, Illinois 60603
13.5 BINDING AGREEMENT. This Agreement shall be binding upon and inure to
the benefit of each party hereto, and its successors, assigns and transferees.
Other than as provided herein, neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto without the prior written consent of the other parties.
13.6 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original but which when taken
together, including counterpart signature pages signed separately but by all
parties in total, shall be deemed one instrument.
13.7 EXHIBITS. The Exhibits to this Agreement shall be deemed to be
incorporated by reference in this Agreement as if fully set forth herein.
[Remainder of this page intentionally left blank.]
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IN WITNESS WHEREOF, the parties have executed this Agreement on the day and
year first above written.
VAUGHN COMMUNICATIONS, INC.
By
-----------------------------------
Its
--------------------------------
SATASTAR CORPORATE SERVICES, INC.
d/b/a PVS CORPORATE SERVICES
By
-----------------------------------
Its
--------------------------------
PVS SHAREHOLDERS
-------------------------------------
-------------------------------------
-------------------------------------
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