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EXHIBIT 4.8
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TRANSFER AGREEMENT
by and between
NORTH STAR UNIVERSAL, INC.
and
ENSTAR INC.
NOVEMBER _, 1996
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TRANSFER AGREEMENT
This TRANSFER AGREEMENT (this "Agreement"), dated as of November _,
1996, is made and entered into by and between North Star Universal, Inc.
("NSU"), a Minnesota corporation, and ENStar Inc., a Minnesota corporation and
wholly owned subsidiary of NSU ("ENStar").
WHEREAS, NSU owns (i) _____ shares of common stock, par value $.01 per
share, of Americable, Inc. ("Americable"), a Minnesota corporation,
constituting all the issued and outstanding shares of capital stock of
Americable (the "Americable Shares") and (ii) 1,225,000 shares of common stock,
par value $__ per share, of CorVel Corporation, a Delaware corporation
("CorVel"), (the "CorVel Shares" and, together with the Americable Shares, the
"Shares").
WHEREAS, NSU desires to transfer, and ENStar desires to obtain, the
Shares on the terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties and agreements and the conditions set forth in this
Agreement, ENStar and NSU hereby agree as follows:
ARTICLE I
TRANSFER OF SHARES AND CLOSING
1.01 Transfer. NSU agrees to transfer to ENStar as a contribution to
the capital of ENStar (i) all of the right, title and interest of NSU in and to
the Shares at the Closing (as defined in Section 1.03) and (ii) all
inter-company indebtedness owed by Americable or Transition Networks, Inc.
("Transition"), a wholly owned subsidiary of Americable, to NSU at the Closing
(the "Intercompany Indebtedness"), on the terms and subject to the conditions
set forth in this Agreement.
1.02 Consideration. In respect of NSU's contribution to
capital provided for in Section 1.01 above, ENStar agrees to (i) enter into with
NSU, and be bound by the terms of, that certain Distribution Agreement, in the
form attached hereto as Exhibit A (the "Distribution Agreement"), which
provides for, among other things, the indemnification of NSU by ENStar with
respect to the Shares and the other assets and liabilities to be transferred to
ENStar pursuant to the Distribution Agreement and (ii) execute and deliver the
Supplemental Indentures (as defined in Article V hereof).
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1.03 The Closing.
(a) The closing of the transactions contemplated by this
Agreement (the "Closing") will take place at the offices of Xxxxxx & Xxxxxxx at
000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx, at 10:00 a.m. on November _,
1996 (the "Closing Date") or at such other place and on such other date as is
mutually agreeable to ENStar and NSU. The Closing will be effective as of the
close of business on the Closing Date.
(b) Subject to the conditions set forth in this Agreement, on
the Closing Date:
(i) NSU will assign and transfer to ENStar (A) good
and valid title in and to the Shares, free and clear of all
liens, by delivering to ENStar a stock certificate or certificates
representing the Shares, duly endorsed for transfer or accompanied by
duly executed stock powers endorsed in blank with requisite stock
transfer tax stamps, if any, attached (B) the Intercompany
Indebtedness; and
(ii) Each of the parties shall deliver to the other
the documents required to be delivered pursuant to Article VII hereof.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF NSU
NSU hereby represents and warrants to ENStar that:
3.01 Incorporation and Corporate Power. NSU is a corporation
duly incorporated, validly existing and in good standing under the laws of the
State of Minnesota and has all requisite corporate power and authority to
execute and deliver this Agreement and to perform its obligations hereunder
(including, without limitation, the corporate power and authority to sell,
transfer and convey the Shares as provided by this Agreement).
3.02 Execution, Delivery; Valid and Binding Agreement. The
execution, delivery and performance of this Agreement by NSU and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by the Board of Directors of NSU, and no other proceedings on its
part are necessary to authorize the execution, delivery and performance of this
Agreement. This Agreement has been duly executed and delivered by NSU and,
assuming that this Agreement is the valid and binding agreement of ENStar,
constitutes the valid and binding obligation of NSU, enforceable in accordance
with
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its terms, except as such enforcement may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of general application
affecting enforcement of creditors' rights or by general principles of equity.
3.03 Authority; No Breach. NSU has the requisite corporate power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder. The execution, delivery and performance of this Agreement by NSU
and the consummation of the transactions contemplated hereby do not conflict
with or result in any breach of any of the provisions of, or constitute a
default under, result in a violation of, result in the creation of a right of
termination or acceleration or any lien, security interest, charge or
authorization, consent, approval, exemption or other action by or notice to any
court or other governmental body, under the provisions of the Articles of
Incorporation or Bylaws of NSU or any indenture, mortgage, lease, loan
agreement or other agreement or instrument by which NSU, Americable,
Transition or the Shares are bound or affected, or any law, statute, rule or
regulation or order, judgment or decree to which NSU, Americable, Transition or
the Shares are subject. No consent, approval or authorization of any
governmental or regulatory authority is required to be obtained by NSU,
Americable or Transition in connection with its execution, delivery and
performance of this Agreement.
3.04 Ownership of Capital Stock. NSU owns, beneficially and of
record, all right, title and interest in and to the Shares free and clear of
any security interests, claims, liens, pledges, options, encumbrances, charges,
agreements, voting trusts, proxies or other arrangements, restrictions
or limitations of any kind, and, on the Closing Date, the delivery by NSU of a
certificate or certificates in the manner set forth in Section 1.03(b) hereof
will transfer good and valid title to the Shares to Buyer, free and clear of
any security interests, claims, liens, pledges, options, encumbrances, charges,
agreements, voting trusts, proxies or other arrangements, restrictions or other
legal or equitable limitations of any kind.
3.05 Capital Stock. The authorized capital stock of Americable
consists of 1,000,000 shares of Common Stock, par value $.01 per share, of
which, as of the date hereof, 20,000 shares are issued and outstanding, all of
which Americable Shares are owned beneficially and of record by NSU, free and
clear of any security interests, claims, liens, pledges, options, encumbrances,
charges, agreements, voting trusts, proxies or other arrangements, restrictions
or other legal or equitable limitations of any kind. All of the shares of
Americable Common Stock have been duly authorized and are validly issued, fully
paid and nonassessable.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF ENSTAR
ENStar hereby represents and warrants to NSU that:
4.01 Incorporation and Corporate Power. ENStar is a corporation
duly incorporated, validly existing and in good standing under the laws of the
State of Minnesota, with the requisite corporate power and authority to enter
into this Agreement and perform its obligations hereunder.
4.02 Execution, Delivery; Valid and Binding Agreement. The
execution, delivery and performance of this Agreement by ENStar and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by all requisite corporate action, and no other corporate
proceedings on its part are necessary to authorize the execution, delivery or
performance of this Agreement. This Agreement has been duly executed and
delivered by ENStar and constitutes the valid and binding obligation of ENStar,
enforceable in accordance with its terms, except as such enforcement may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other laws of general application affecting enforcement of creditors' rights or
by general principles of equity.
4.03 No Breach. The execution, delivery and performance of this
Agreement by ENStar and the consummation by ENStar of the transactions
contemplated hereby do not conflict with or result in any breach of any of the
provisions of, constitute a default under, result in a violation of, result in
the creation of a right of termination or acceleration or any lien, security
interest, charge or encumbrance upon any assets of ENStar, or require any
authorization, consent, approval, exemption or other action by or
notice to any court or other governmental body, under the provisions of the
Articles of Incorporation or Bylaws of ENStar or any indenture, mortgage,
lease, loan agreement or other agreement or instrument by which ENStar is bound
or affected, or any law, statute, rule or regulation or order, judgment or
decree to which ENStar is subject.
ARTICLE V
COVENANT OF ENSTAR
ENStar covenants and agrees with NSU that it will execute and deliver
(a) the Distribution Agreement at the request and upon the direction of NSU, (b)
a supplemental indenture, substantially in the form attached hereto as Exhibit
B (the "1986 Supplemental Indenture"), to that certain Indenture, dated as of
December 1, 1986 (the "1986 Indenture"), between NSU and National City Bank of
Minneapolis,
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as trustee, pursuant to which ENStar agrees to assume the indebtedness
of NSU under the 1986 Indenture and (c) a supplemental indenture,
substantially in the form attached hereto as Exhibit C (the "1989
Supplemental Indenture" and, together with the 1986 Supplemental
Indenture, the "Supplemental Indentures"), to that certain Indenture,
dated as of April 26, 1989, as supplemented on March 16, 1992, and
March 16, 1995 (the "1989 Indenture"), between NSU and National City
Bank of Minneapolis, as trustee, pursuant to which ENStar agrees to
assume the indebtedness of NSU (the "NSU Assumed Indebtedness") under
the 1986 Indenture and the 1989 Indenture.
ARTICLE VI
COVENANT OF ENSTAR
NSU covenants and agrees that it will pay in full, when due and
in accordance with its terms, and hold ENStar harmless from, all
amounts due in respect of the NSU Assumed Indebtedness issued and
outstanding under the 1986 Indenture or the 1989 Indenture,
notwithstanding that ENStar has agreed to assume such NSU Assumed
Indebtedness pursuant to its execution of the Supplemental Indentures
with respect to such NSU Assumed Indebtedness.
ARTICLE VII
CONDITIONS TO CLOSING
7.01 Conditions to ENStar's Obligations. The obligation of ENStar to
consummate the transactions contemplated by this Agreement is subject to the
satisfaction of the following conditions on or before the Closing Date:
(a) The representations and warranties set forth in Article
IV hereof shall be true and correct in all material respects at and as
of the Closing as though then made;
(b) NSU shall have delivered to ENStar the stock
certificates issued to NSU representing the Shares, duly endorsed for
transfer or accompanied by a duly executed stock power, with requisite
stock transfer stamps, if any, attached; and
(c) NSU shall have delivered to ENStar the minute books,
stock transfer records, corporate seal and other materials of each of
Americable and Transition related to Americable's and Transition's
corporate administration;
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(d) NSU shall have entered into each of the Supplemental
Indentures with ENStar and the trustee named therein; and
(e) NSU shall have performed in all material respects all the
covenants and agreements required to be performed by it under this
Agreement prior to the Closing.
7.02 Conditions to NSU's Obligations. The obligations of NSU to
consummate the transactions contemplated by this Agreement are subject to
the satisfaction of the following conditions on or before the Closing Date:
(a) The representations and warranties set forth in Article III
hereof shall be true and correct in all material respects at and as of
the Closing as though then made;
(b) ENStar shall have entered into Supplemental Indentures; and
(c) ENStar shall have performed in all material respects all the
covenants and agreements required to be performed by it under this
Agreement prior to the Closing.
ARTICLE VIII
TERMINATION
This Agreement may be terminated at any time prior to the Closing
by the mutual consent of ENStar and NSU.
ARTICLE IX
MISCELLANEOUS
9.01 Further Assurances. NSU agrees that, on and after the
Closing Date, it shall take all appropriate action (without incurring any
out-of-pocket expenses) and execute any documents, instruments or
conveyances of any kind which may be reasonably necessary or advisable to
carry out any of the provisions hereof, including, without limitation,
putting ENStar in possession and operating control of the Shares.
9.02 Assignment. This Agreement and all of the provisions
hereof will be binding upon and inure to the benefit of the parties hereto
and their
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respective successors and permitted assigns, except that neither this Agreement
nor any of the rights, interests or obligations hereunder may be assigned by
either party hereto without the prior written consent of the other party hereto.
9.03 Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Agreement.
9.04 Complete Agreement. This Agreement and the Exhibits hereto,
the Disclosure Schedule and the other documents referred to herein contain the
complete agreement between the parties and supersede any prior
understandings, agreements or representations by or between the parties,
written or oral, which may have related to the subject matter hereof in any
way.
9.05 Counterparts. This Agreement may be executed in one or more
counterparts, any one of which need not contain the signatures of more than one
party, but all such counterparts taken together will constitute one and the same
instrument.
9.06 Governing Law. The internal law, without regard to conflicts
of laws principles, of the State of Minnesota will govern all questions
concerning the construction, validity and interpretation of this Agreement
and the performance of the obligations imposed by this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
ENSTAR INC.
By___________________________
Its_________________________
NORTH STAR UNIVERSAL, INC.
By___________________________
Its_________________________
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