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EXHIBIT (c)
Paying Agent Agreement
September 27, 1995
LaSalle National Bank
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Re: Merger of PXYZ Corporation with and into Pacific Telecom, Inc.
Ladies and Gentlemen:
This letter sets forth our agreement relating to the services
to be performed by you as Paying Agent in connection with the
merger (the "Merger") of PXYZ Corporation, a Washington
corporation ("Transitory Subsidiary"), with and into Pacific
Telecom, Inc., a Washington corporation ("Pacific Telecom"),
pursuant to an Agreement and Plan of Merger, dated as of March 9,
1995 (the "Merger Agreement"), by and among PacifiCorp Holdings,
Inc., a Delaware corporation, ("Holdings"), Transitory Subsidiary
and Pacific Telecom. Capitalized terms not otherwise defined
herein shall have the meanings assigned to them in the Merger
Agreement.
The Merger Agreement provides that each holder other than
Holdings (each a "Minority Shareholder") of Pacific Telecom Common
Stock ("PTI Common Stock") may surrender the certificate(s)
theretofore representing such PTI Common Stock to you as Paying
Agent and, in accordance with the Merger Agreement, shall, upon
the proper surrender of such certificate(s), be entitled to
receive an amount equal to $30.00 multiplied by the number of
shares of PTI Common Stock theretofore represented by such
certificate(s).
As Paying Agent, you shall pay to the Minority Shareholders
surrendering certificate(s) theretofore representing shares of PTI
Common Stock the amount set forth above and, in connection
therewith, the following procedures shall apply:
1. Notification of the Merger
Pacific Telecom has delivered to you a list of the
shareholders as of the date of such list, setting forth the number
of shares held, the certified tax identification numbers, the
certificate numbers of such shares, and the mailing address of
each such shareholder (the "Shareholders List"). Prior to the
Effective Time, Pacific Telecom shall deliver to you written
notice of any changes to the Shareholders List as soon as Pacific
Telecom becomes aware of such change.
Upon notification by Holdings that the Effective Time has
occurred, you shall send to each Minority Shareholder on the
Shareholders List a copy of the Letter to Shareholders attached
hereto as Exhibit A ("Letter to Shareholders"), the Letter of
Transmittal attached hereto as Exhibit B ("Letter of
Transmittal"), including Substitute Form W-9 and Guidelines
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for Certification of Taxpayer Identification Number, and a return
envelope. You shall furnish upon request of any Minority
Shareholder additional copies of such materials.
2. Receipt of Letters of Transmittal, Affidavits and
Related Items.
From and after the Effective Time, as to which you will be
advised, and until termination of your appointment as Paying
Agent, you are hereby authorized and directed to examine each
Letter of Transmittal and certificate representing shares of PTI
Common Stock delivered or mailed to you to determine whether or
not all requirements necessary to constitute a valid surrender, as
set forth in the Letter of Transmittal and in the Merger
Agreement, have been met. All certificates for shares of PTI
Common Stock must be surrendered on the terms and conditions set
forth in the Letter of Transmittal and in the Merger Agreement,
unless waived by an authorized officer of Holdings. You shall be
entitled to rely upon any notice, document, security or signature
which you believe in good faith to be genuine and upon an opinion
of counsel as to any matter of law. When there is a deficiency of
any such item(s), you shall promptly inform the presenter(s) of
such item(s) of the non-compliance. You shall inform Holdings and
its counsel of any item(s) which, after two weeks of their
receipt, continue to have a deficiency in their execution. You
shall make such items available for the review of Holdings and its
counsel and you shall follow the instructions of Holdings
regarding the disposition of such item(s) and such determination
shall be final and binding.
3. Deposit and Application of Funds.
(a) Not later than 2:00 p.m. Central Daylight Time on the
date that the Effective Time occurs, Holdings shall cause to be
deposited with you as Paying Agent a corpus (the "Payment Funds")
sufficient for you as Paying Agent to make full payment of the
Merger Consideration to the Minority Shareholders (other than
those holding Dissenting Shares).
(b) The Payment Funds shall be invested pursuant to written
instructions from Holdings in Permitted Investments (as defined in
Section 3(d) below), and such funds shall be held by you from and
after the Effective Time and until disbursed by you pursuant to
and in accordance with the terms of this Agreement for the benefit
of the holders of shares of Minority Stock. You shall at all time
maintain records evidencing the segregated amounts invested and
the proceeds of the investment of such funds. You shall not be
liable for any losses with respect to investments made by you in
accordance with this Section 3.
Upon termination of this Paying Agency Agreement, you shall
deliver to Holdings any remaining funds held by you as Paying
Agent pursuant to the terms of Section 14 of this Agreement, and
thereafter, unless as Paying Agent you have retained funds as
provided below, any holder of certificates representing shares of
PTI Common Stock shall look only to the Surviving Corporation for
payment of any check drawn on the funds deposited with you and
presented to you as Paying Agent; provided, however, that
notwithstanding anything to the contrary contained in this
Agreement, you may retain an amount equal to the aggregate amount
payable in checks drawn on the funds deposited with you through
such date which have not yet been presented for payment.
(c) Any interest earned on the Payment Funds ("Interest")
shall be distributed to the Surviving Corporation as directed by
Holdings. The Surviving Corporation shall bear all federal, state
and local income tax liability on the Interest earned on the
Payment Funds.
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(d) For purposes of this Section 3, Permitted Investments
means:
(i) bills, notes and other direct obligations issued by
the United States of America or by any agency thereof;
(ii) repurchase agreements collateralized by bills,
notes and other direct obligations issued by the United
States of America or by any agency thereof;
(iii) obligations issued by any state or political
subdivision thereof, which are rated within the highest
category by at least two nationally recognized statistical
rating organizations;
(iv) certificates of deposits, bankers acceptances and
time deposits issued or supported by the credit of domestic
or foreign banks with assets in excess of $1 billion;
(v) commercial paper rated in the highest category by
at least two nationally recognized statistical rating
organizations.
The term of any of the above investments shall not
exceed sixty (60) days.
4. Payment.
(a) At any time after the Effective Time, and upon receipt
by you of certificates therefore representing shares of Minority
Stock, together with a Letter of Transmittal, each properly
completed and executed in accordance with Paragraph 2 hereunder,
you are hereby directed to deliver a bank or certified check (or,
if the amount exceeds $100,000, a wire transfer of immediately
available funds) as instructed by such Minority Shareholder in the
Letter of Transmittal in an amount equal to $30.00 multiplied by
the number of shares of Minority Stock therefore represented by
such certificate(s) less any required federal income tax
withholding, such deliveries of bank or certified checks by you to
be made by first-class mail, postage prepaid, and to be made by
you as promptly as practicable as surrenders of stock certificates
and Letters of Transmittal are received by you.
(b) The Surviving Corporation shall be liable for all
transfer documentary, sales, use, stamp, registration or other
such taxes and fees. The Paying Agent shall prepare and deliver
tax reports on IRS Form 1099B with respect to any payments to the
Minority Shareholders pursuant to this Section 4.
(c) If payment for any shares of PTI Common Stock is to be
made in a name other than that of the registered holder of the
shares of PTI Common Stock, you are hereby directed to determine
that the following requirements are fulfilled:
(i) surrendered certificates must be duly endorsed by
he registered holder thereof in exactly the same way as the
name appears on the face thereof without any change or
alteration, or must be accompanied by proper stock powers so
endorsed, except as provided in subparagraph (iii) hereof;
(ii) the signature of the endorser must be guaranteed
as specified in the Letter of Transmittal;
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(iii) when the endorsement is executed by an officer of
a corporation, attorney, executor, administrator, trustee,
guardian or other person acting in a fiduciary or
representative capacity, the person signing the endorsement
must give such person's full title in such capacity, and
proper evidence of the appointment and authority of such
person must be forwarded with the certificate(s) for the
shares;
(iv) in case of joint ownership, all joint owners must
sign; and
(v) no stock transfer taxes will arise by reason of
the Merger or will be collectible by you; provided, however,
that it will be a condition to the issuance of any check or
wire transfer in any name other than the name in which the
surrendered certificate for the shares is registered that the
person requesting the issuance of such check or wire transfer
either pay to you any transfer or other taxes required by
reason of such issuance, or establish to your satisfaction
that such tax has been paid or is not applicable or, if the
foregoing conditions are waived by Holdings, you shall deduct
the amount of such tax from the amount of any payment to be
made hereunder and make payment of the net amount as set
forth in the Letter of Transmittal.
(d) The Paying Agent shall return to the surrendering
holders, in accordance with the provisions of the Letter of
Transmittal, any shares that were not properly surrendered as to
which the irregularities or defects were not cured or waived.
5. Cancellation.
Upon termination of this Agreement or as soon as practicable
thereafter, you shall deliver to the Surviving Corporation for
cancellation all certificates formerly representing PTI Common
Stock tendered by Minority Shareholders and received by you.
6. Lost Certificates.
In the case of persons or entities alleging theft,
destruction or loss of certificate(s) representing shares of
Minority Stock, you are authorized to require in your discretion
provision of a bond representing the value of such shares and
identifying Holdings and you as "obligees," along with an
Affidavit of Loss and indemnity in the form attached hereto as
Exhibit C. At any time after the Effective Time, and upon receipt
by you of such bond and Affidavit of Loss and Indemnity, in either
case together with a Letter of Transmittal, each duly completed
and executed, you are hereby directed to pay such holder as
provided in Section 4.
7. Requests for Information.
You shall accept and comply with telephone, mail and in-
person requests for information concerning the proper surrender of
certificates formerly representing PTI Common Stock and the
payment therefor.
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8. Reports.
You will furnish a weekly report concerning the number of
certificates formerly representing PTI Common Stock and the total
funds disbursed to Minority Shareholders by telecopy to:
Pacific Telecom, Inc.
Attn: Xxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
PacifiCorp Holdings, Inc.
Attention: Xxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Each telecopied report shall cover all transactions through
the immediately preceding business day.
Upon termination of this Agreement and upon request prior to
termination, you will furnish to the persons named above a report
showing the disposition of the Payment Funds pursuant to this
Agreement, together with the names and addresses of all persons on
the Shareholders List who have not properly surrendered their
certificates formerly representing Minority Stock or properly
completed Affidavits of Loss and Indemnity.
9. Paying Agent Duties.
The Paying Agent shall be obligated to perform only such
duties as are expressly set forth in this Agreement. The Paying
Agent shall have no liability for any investment losses resulting
from investment of the Payment Funds in accordance with Section 3
hereof. The Paying Agent shall not be liable for any mistake of
fact or error of judgment or for any acts or omissions of any kind
(including, without limitation, any distribution hereunder) unless
caused by its bad faith, gross negligence or willful misconduct.
The Paying Agent may consult with counsel of its own choosing, and
any opinion of counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in accordance with such opinion.
The Paying Agent may act in reliance upon any written notice,
request, or other document specifically provided for in this
Agreement which the Paying Agent in good faith believes to be
genuine and to have been signed or presented by the proper party
or parties whether or not that is in fact the case.
The Paying Agent shall not be obligated to take any action
hereunder that might in its reasonable judgment involve any
expense or liability to it unless it has been furnished with
reasonable indemnity.
10. Fees and Expenses.
All fees and expenses (including fees and expenses of legal
counsel) of the
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Paying Agent shall be paid by the Surviving Corporation. Paying
Agent's fees shall be as set forth on Exhibit "D", which may be
amended from time to time, subject to approval by Holdings.
11. Right to Resign.
The Paying Agent may resign and be discharged from its duties
or obligations hereunder by giving 30 days prior written notice of
such resignation to Holdings and the Surviving Corporation
specifying a date when such resignation shall take effect;
provided, however, that no such resignation shall be effective
until a successor Paying Agent shall have been appointed and the
Paying Agent shall have delivered the Payment Funds hereunder to
such successor Paying Agent. In the event of the Paying Agent's
resignation, Holdings shall promptly select a new Paying Agent.
If no successor Paying Agent shall have been appointed within 30
days of Paying Agent's notice of resignation, Paying Agent may
petition any court of competent jurisdiction to appoint a
successor.
12. Exculpation and Indemnification of Paying Agent.
(a) The Paying Agent shall have no duty to enforce any
obligation of any person to make any payment or delivery, or to
direct or cause any payment or delivery to be made, or to enforce
any obligation of any person to perform any other act. The Paying
Agent shall be under no liability to the other parties hereto or
to anyone else by reason of any failure on the part of any party
hereto or any maker, guarantor, endorser or other signatory of any
document or any other person to perform such person's obligations
under any such document. Except for amendments to this Agreement
referred to below and except for instructions given to the Paying
Agent by Holdings relating to the Payment Funds, the Paying Agent
shall not be obligated to recognize any other agreement between
any or all of the persons party hereto or referred to herein,
notwithstanding that references thereto may be made herein and
whether or not it has knowledge thereof.
(b) The Paying Agent shall have no duties or obligations
other than those specifically set forth herein. The Paying Agent
shall not be liable to the other parties hereto or to anyone else
for any action taken or omitted by it or any action suffered by it
to be taken or omitted, in good faith and in the exercise of its
own reasonable judgment. The Paying Agent may rely conclusively
and shall be protected in acting upon any, statement, instrument,
report or other paper or document (not only as to its due
execution and the validity and effectiveness of its provisions,
but also as to the truth and acceptability of any information
therein contained) which is reasonably believed by the Paying
Agent to be genuine and to be signed or presented by the proper
person or persons whether or not that is in fact the case. The
Paying Agent shall not be bound by any notice or demand, or any
waiver, modification, termination or rescission of this agreement
or any of the terms hereof, unless evidenced by a writing
delivered to the Paying Agent signed by the proper party or
parties and, if the duties or rights of the Paying Agent are
affected, unless it shall deliver its prior written consent
thereto.
(c) Subject to the Paying Agent's obligations pursuant to
Sections 2 and 4(c) of this Agreement, the Paying Agent shall not
be responsible for the sufficiency or accuracy of the form of, or
the execution, validity, accuracy, or genuineness of any document
received, held or delivered by it hereunder, or of any signature
or endorsement thereon, or for any lack of endorsement thereon, or
for any description therein, nor shall the Paying Agent be
responsible or liable to the other parties hereto or to anyone
else in any respect on account of the
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identity, authority or rights of the persons executing or
delivering or purporting to execute or deliver any document or
property or this Agreement. The Paying Agent shall have no
responsibility with respect to the use or application of any funds
or other property paid or delivered by the Paying Agent pursuant
to the provisions hereof. The Paying Agent shall not be liable to
the other parties hereto or to anyone else for any loss which may
be incurred by reason of any investment of any monies which it
holds hereunder, except for any loss arising out of the Paying
Agent's gross negligence or willful misconduct.
(d) The Paying Agent shall have the right to assume, in the
absence of written notice to the contrary from the proper person
or persons, that a fact or an event by reason of which an action
would or might be taken by the Paying Agent does not exist or has
not occurred, without incurring liability to the other parties
hereto or to anyone else for any action taken or omitted, or any
action suffered by it to be taken or omitted, in good faith and in
the exercise of its own best judgment, in reliance upon such
assumption.
(e) The Paying Agent shall be indemnified and held harmless
jointly and severally by the other parties hereto from and against
any and all expenses, including reasonable counsel fees and
disbursements, or loss suffered by the Paying Agent in connection
with any action, suit or other proceeding involving any claim, or
in connection with any claim or demand, which in any way, directly
or indirectly arises out of or relates to this Agreement, the
services of the Paying Agent hereunder, the monies or other
property held by it hereunder or any income earned from investment
of such monies; provided, however, that the Paying Agent shall not
be entitled to indemnification hereunder for any loss, liability,
cost or expense arising out of the Paying Agent's bad faith, gross
negligence or willful misconduct. The Paying Agent shall have a
lien for the amount of any such expense or loss on the monies and
other property held by it hereunder and shall be entitled to
reimburse itself from such monies or property for the amount of
any such expense or loss. Promptly after the receipt by the
Paying Agent of notice of any demand or claim or the commencement
of any action, suit or proceeding, the Paying Agent shall, if a
claim in respect thereof is to be made against any of the other
parties hereto, notify such other parties thereof in writing; but
the failure by the Paying Agent to give such notice shall not
relieve any party from any liability which such party may have to
the Paying Agent hereunder. For the purposes hereof, the term
"expense or loss" shall include all amounts paid or payable to
satisfy any claim, demand or liability, or in settlement of any
claim, demand, action, suit or proceeding settled with the express
written consent of the Paying Agent (which shall not be
unreasonably withheld), and all costs and expenses, including, but
not limited to, counsel fees and disbursements, reasonably paid or
incurred in investigating or defending against any such claim,
demand, action, suit or proceeding.
13. Supplemental Instructions.
In the event that any circumstances arise which are not
addressed in the foregoing sections, and in all instances
mentioned herein requiring written authorization by Holdings, you
shall consult with, shall be entitled to rely upon and shall act
in accordance with written instructions or directions signed by
with respect to any matter relating to your actions as Paying
Agent specifically covered by this Agreement, or amending,
supplementing or qualifying all such actions, which shall be
approved, in writing by Xxxxx X. Xxxxxxxx. You shall be entitled
to treat as genuine and as the document it purports to be, and
shall be protected under Section 12 in acting upon, any letter,
paper or other documents furnished to you by any person purporting
to be an authorized representative of Holdings.
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14. Termination.
Your duties as Paying Agent shall terminate on March 31, 1996
unless otherwise extended by agreement of the parties, whereupon
you shall deliver all funds remaining on deposit with you
hereunder and all other items and materials accumulated by you in
your capacity as Paying Agent, together with the final report
referred to in Section 8 of this Agreement, to the Surviving
Corporation or as you may be otherwise instructed by the person
identified in Section 13 of this Agreement. In the event that any
certificates theretofore representing PTI Common Stock, Letters of
Transmittal or other documents are surrendered to you for payment
after termination of this Agreement, you will promptly forward
such documents to the Surviving Corporation or as Holdings may
direct.
15. Notice.
Any notice, request, instruction or other documents to be
given hereunder by any party to any other party shall be in
writing and shall be deemed to have been duly given (i) on the
date of delivery if delivered personally, by telecopy or by
facsimile, (ii) on the first business day following the date of
dispatch if delivered by Federal Express or other next-day courier
service, or (iii) on the third business day following the date of
mailing if delivered by registered or certified mail, return
receipt requested, postage prepaid. All notices hereunder shall
be delivered as set forth below, or pursuant to such other
instructions as may be designated in writing by the party to
receive such notice.
If to Paying Agent, to:
LaSalle National Bank
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxx X. Xxxxxx
If to Holdings, to:
PacifiCorp Holdings, Inc.
000 X.X. Xxxxxxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx
with a copy to:
Stoel Rives
000 X.X. Xxxxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxx X. Xxxxxxxxx
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If to the Surviving Corporation, to:
Pacific Telecom, Inc.
000 Xxxxxxxx
Xxxxxxxxx, XX 00000-0000
Telecopier: (360) - 000-0000
Telephone: (360) - 000-0000
Attention: Xxxxx X. Xxxxxxxx
16. Miscellaneous.
(a) Counterparts. This Agreement may be executed in any
number of counterparts, each such counterpart being deemed an
original instrument, and all such counterparts shall together
constitute the same agreement.
(b) Governing Law. This Agreement shall be governed by and
construed
in accordance with the laws of Illinois.
(c) Entire Agreement. This Agreement and the Merger
Agreement constitute the entire agreement and supersede all other
prior agreements, understandings, representations and warranties,
both written and oral, among the parties, with respect to the
subject matter hereof and shall be binding upon and inure to the
benefit of the parties hereto, their respective successors, heirs,
estate and assigns.
(d) Captions. The section and paragraph captions herein are
for convenience of reference only, do not constitute part of this
Agreement and shall not be deemed to limit or otherwise affect any
of the provisions hereof.
(e) Amendment: Waiver. Except as provided in Section 13,
any provision of this Agreement may be amended or waived if, and
only if, such amendment or waiver is in writing and signed, in the
case of any amendment, by each of the parties hereto, or in the
case of a waiver, by the party or parties against whom the waiver
is to be effective. No waiver shall be effective without the
Paying Agent receiving written notice thereof. No failure or
delay by any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single
or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
(f) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and their
respective successors and permitted assigns.
(g) Assignment. Neither this Agreement nor any of the
rights, interest or obligations hereunder, shall be assigned or
delegated by any party hereto except as expressly provided in this
Agreement or with the prior written consent of the other parties.
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LaSalle National Bank
By:______________________________
Its:______________________________
PacifiCorp Holdings, Inc.
By:______________________________
Its:______________________________
Pacific Telecom, Inc.
By:______________________________
Its:______________________________
