EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
TRIPLE CROWN MEDIA, INC.,
BR ACQUISITION CORP.,
AND
BULL RUN CORPORATION,
DATED AS OF AUGUST 2, 2005
TABLE OF CONTENTS
Page
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AGREEMENT AND PLAN OF MERGER............................................. 1
RECITALS................................................................. 1
ARTICLE I. CERTAIN DEFINITIONS........................................... 1
SECTION 1.01 Certain Definitions..................................... 1
ARTICLE II. THE MERGER................................................... 10
SECTION 2.01 The Merger.............................................. 10
SECTION 2.02 Effective Time.......................................... 10
SECTION 2.03 Effect of the Merger.................................... 10
SECTION 2.04 Articles of Incorporation; By-Laws...................... 10
SECTION 2.05 Directors and Officers.................................. 10
SECTION 2.06 Effect on Capital Stock................................. 11
SECTION 2.07 Exchange of Certificates................................ 12
SECTION 2.08 Dissenters' Rights...................................... 15
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF THE COMPANY............... 15
SECTION 3.01 Organization and Qualification; Subsidiaries............ 15
SECTION 3.02 Articles of Incorporation and By-Laws................... 16
SECTION 3.03 Capitalization.......................................... 16
SECTION 3.04 Authority Relative to This Agreement.................... 17
SECTION 3.05 No Conflict; Required Filings and Consents.............. 18
SECTION 3.06 SEC Filings; Financial Statements....................... 19
SECTION 3.07 Proxy Statement......................................... 20
SECTION 3.08 Compliance, Permits..................................... 20
SECTION 3.09 Absence of Certain Changes or Events.................... 21
SECTION 3.10 No Undisclosed Liabilities.............................. 21
SECTION 3.11 Litigation.............................................. 22
SECTION 3.12 Employee Benefit Plans; Employment Agreements........... 22
SECTION 3.13 Employees; Labor Matters................................ 24
SECTION 3.14 Taxes................................................... 24
SECTION 3.15 Environmental Matters................................... 26
SECTION 3.16 Brokers................................................. 27
SECTION 3.17 Material Contracts...................................... 27
SECTION 3.18 Title to Properties; Absence of Encumbrances............ 27
SECTION 3.19 Insurance............................................... 27
SECTION 3.20 Tax Matters............................................. 28
SECTION 3.21 Vote Required........................................... 28
SECTION 3.22 State Takeover Statutes................................. 28
SECTION 3.23 Fairness Opinion........................................ 28
SECTION 3.24 No Other Representations and Warranties................. 29
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF TCM........................ 29
SECTION 4.01 Organization and Qualification.......................... 29
SECTION 4.02 Organizational Documents................................ 30
SECTION 4.03 Capitalization.......................................... 30
SECTION 4.04 Issuance of Merger Consideration........................ 31
SECTION 4.05 Authority Relative to this Agreement.................... 31
SECTION 4.06 No Conflict; Required Filings and Consents.............. 31
SECTION 4.07 Financial Statements.................................... 32
SECTION 4.08 Registration Statement.................................. 33
SECTION 4.09 Compliance, Permits..................................... 33
SECTION 4.10 Absence of Certain Changes or Events.................... 34
SECTION 4.11 No Undisclosed Liabilities.............................. 34
SECTION 4.12 Litigation.............................................. 34
SECTION 4.13 Employees; Labor Matters................................ 34
SECTION 4.14 Taxes................................................... 35
SECTION 4.15 Environmental Matters................................... 36
SECTION 4.16 Brokers................................................. 37
SECTION 4.17 Material Contracts...................................... 37
SECTION 4.18 Title to Properties; Absence of Encumbrances............ 39
SECTION 4.19 Interim Operations of Merger Sub........................ 40
SECTION 4.20 Tax Matters............................................. 40
SECTION 4.21 Employee Benefits....................................... 40
SECTION 4.22 Fairness Opinions....................................... 40
SECTION 4.23 No Other Representations and Warranties................. 40
ARTICLE V. COVENANTS..................................................... 41
SECTION 5.01 Conduct of Business by the Company...................... 41
SECTION 5.02 Form S-4; Company Stockholder Approval.................. 44
SECTION 5.03 Exclusivity; Superior Proposal.......................... 45
SECTION 5.04 Access to Information; Confidentiality.................. 48
SECTION 5.05 Consents and Approvals.................................. 49
SECTION 5.06 Stock Options........................................... 49
SECTION 5.07 Notification of Certain Matters......................... 50
SECTION 5.08 Public Announcements.................................... 51
SECTION 5.09 Expenses................................................ 51
SECTION 5.10 Tax Treatment........................................... 51
SECTION 5.11 Continuing Director and Officer Indemnification......... 51
SECTION 5.12 Certain Tax Matters..................................... 52
SECTION 5.13 Employees and Employee Benefit Matters.................. 53
SECTION 5.14 Listing of TCM Common Stock............................. 53
SECTION 5.15 Necessary Actions....................................... 53
ARTICLE VI. CONDITIONS TO THE MERGER..................................... 53
SECTION 6.01 Conditions to Obligation of Each Party to
Effect the Merger.................................... 53
SECTION 6.02 Additional Conditions to Obligations of TCM and
Merger Sub........................................... 54
SECTION 6.03 Additional Conditions to Obligation of the Company...... 56
SECTION 6.04 Rule 145 Affiliates..................................... 57
ARTICLE VII. TERMINATION................................................. 57
SECTION 7.01 Termination............................................. 57
SECTION 7.02 Effect of Termination................................... 59
ARTICLE VIII. GENERAL PROVISIONS......................................... 59
SECTION 8.01 Survival of Representations and Warranties.............. 59
SECTION 8.01 Notices................................................. 59
SECTION 8.03 Waiver.................................................. 60
SECTION 8.04 Headings................................................ 60
SECTION 8.05 Limited Liability....................................... 61
SECTION 8.06 Severability............................................ 61
SECTION 8.07 Entire Agreement; Amendment............................. 61
SECTION 8.08 Assignment.............................................. 61
SECTION 8.09 Parties in Interest..................................... 61
SECTION 8.10 Failure or Indulgence Not Waiver; Remedies Cumulative... 62
SECTION 8.11 Governing Law........................................... 62
SECTION 8.12 Counterparts............................................ 62
SECTION 8.13 Waiver of Jury Trial.................................... 62
SECTION 8.14 Jurisdiction; Forum..................................... 62
SECTION 8.15 General Interpretative Provisions; Defination of
Knowledge............................................ 62
SECTION 8.16 Specific Performance and Injunctive Relief.............. 63
SECTION 8.17 Attorneys' Fees......................................... 63
SECTION 8.18 Limitation of Liability................................. 63
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of August 2, 2005 (this
"Agreement"), by and among Triple Crown Media, Inc., a Delaware corporation
("TCM"), BR Acquisition Corp., a Georgia corporation and a direct, wholly-owned
subsidiary of TCM ("Merger Sub"), and Bull Run Corporation, a Georgia
corporation (the "Company").
RECITALS
Each of TCM, Merger Sub and the Company has determined that it is advisable
and in the best interests of its stockholders for the parties to enter into a
business combination upon the terms and subject to the conditions set forth
herein;
In furtherance of such combination, each of (i) the special committee of
the board of directors of TCM (the "TCM Special Committee"), (ii) the board of
directors of TCM (the "TCM Board"), (iii) the special committee of the board of
directors of the Company (the "Company Special Committee"), (iv) the board of
directors of the Company (the "Company Board"), (v) the board of directors of
Merger Sub, (vi) the sole stockholder of TCM and (vii) the sole stockholder of
Merger Sub has approved the merger (the "Merger") of the Company with and into
Merger Sub in accordance with the applicable provisions of the Georgia Business
Corporation Code ("Georgia Law") and upon the terms and subject to the
conditions set forth herein;
The Company Special Committee and the Company Board have unanimously
determined that this Agreement, the Merger and the other transactions
contemplated hereby (other than the Spin-off (as defined herein)) are fair to
the stockholders of the Company and has unanimously recommended that the
stockholders of the Company approve and adopt this Agreement, the Merger and the
other transactions contemplated hereby (other than the Spin-off); and
For U.S. federal income tax purposes, it is intended that (a) the Merger
will qualify as a reorganization within the meaning of Section 368(a) of the
Internal Revenue Code of 1986, as amended (the "Code"), (b) this Agreement shall
be, and hereby is, adopted as a plan of reorganization for purposes of Section
368 of the Code and (c) TCM, Merger Sub and the Company will each be a party to
such reorganization within the meaning of Section 368(b) of the Code;
THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements herein contained, and intending to be legally bound hereby, the
parties hereto agree as follows:
ARTICLE I.
CERTAIN DEFINITIONS
SECTION 1.01 Certain Definitions. For purposes of this Agreement, the term:
(a) "1994 Directors' Plan" shall have the meaning specified in Section
2.06(d).
(b) "1994 Plan" shall have the meaning specified in Section 2.06(d).
(c) "affiliate" of a person means a person that directly or indirectly,
through one or more intermediaries, controls, is controlled by, or is under
common control with, the first mentioned person.
(d) "Agreement" shall mean this Agreement and Plan of Merger, together with
all exhibits attached hereto, the Company Disclosure Letter and the TCM
Disclosure Letter.
(e) "Ancillary Agreements" means any certificates or supporting documents
contemplated or delivered pursuant thereto and pursuant to this Agreement.
(f) "Articles of Merger" shall have the meaning specified in Section 2.02.
(g) "Assets" means all the properties, assets and contract rights
(including, without limitation, cash, cash equivalents, accounts receivable,
inventory, equipment, office furniture and furnishings, trade names, trademarks
and patents, contracts, agreements, licenses and real estate) of the Company and
its subsidiaries, whether tangible or intangible, real, personal or mixed.
(h) "books and records" means, with respect to any person, all books and
records, including, without limitation, corporate records (such as minute books,
seals, stock ledgers and similar items), manuals, price lists, mailing lists,
lists of customers, slides and promotional materials, purchasing materials,
personnel records, quality control records and procedures, research and
development files, financial and accounting records (exclusive of records
maintained by the Company's independent accountants), environmental records and
litigation files (regardless of the media in which stated), in each case
principally relating to or used by such person.
(i) "Blue Sky Laws" shall have the meaning specified in Section 3.05(b).
(j) "business day" means any day other than a day on which banks in
Atlanta, Georgia are required or authorized to be closed.
(k) "Cash Advance" means the cash advances in the aggregate of $6,050,000
made by J. Xxxx Xxxxxxxx to the Company.
(l) "CERCLA" shall have the meaning specified in Section 3.15(b).
(m) "Certificate" shall have the meaning specified in Section 2.06(c).
(n) "Closing" shall have the meaning specified in Section 2.01.
(o) "Closing Date" shall have the meaning specified in Section 2.01.
(p) "Code" shall have the meaning specified in the Recitals.
(q) "Common Stock Exchange Ratio" shall have the meaning specified in
Section 2.06(c)(i).
(r) "Company" shall mean Bull Run Corporation, a Georgia corporation.
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(s) "Company Articles of Incorporation" means the Articles of Incorporation
of the Company, as amended, in effect as of the date of this Agreement.
(t) "Company Board" shall have the meaning specified in the Recitals.
(u) "Company By-Laws" shall have the meaning specified in Section 3.02.
(v) "Company Capital Stock" means collectively, the Company Common Stock
and the Company Preferred Stock.
(w) "Company Common Stock" shall have the meaning specified in Section
2.06(a).
(x) "Company Disclosure Letter" shall have the meaning specified in Article
III.
(y) "Company ERISA Affiliate" shall have the meaning specified in Section
3.12(a).
(z) "Company Financial Advisor" means SunTrust Xxxxxxxx Xxxxxxxx.
(aa) "Company Material Adverse Effect" means a material and adverse effect
on the operation of the Company taken as a whole; provided, however, that the
following shall not be taken into account in determining whether there has been
or would be a "Material Adverse Effect": (i) any adverse changes or developments
resulting from conditions affecting the United States economy generally; (ii)
any acts of war, insurrection, sabotage or terrorism; (iii) any adverse change
or developments that are primarily caused by conditions affecting the media and
advertising industries generally; and (iv) any adverse changes or developments
arising primarily out of, or resulting primarily from, actions taken by any
party in connection with (but not in breach of) this Agreement and the
transactions contemplated hereunder, or which are primarily attributable to the
announcement of this Agreement and the transactions contemplated hereby or the
identity of TCM.
(bb) "Company Option Plans" shall have the meaning specified in Section
2.06(d).
(cc) "Company Permits" shall have the meaning specified in Section 3.08(b).
(dd) "Company Plan" shall have the meaning specified in Section 3.12(a).
(ee) "Company Preferred Stock" means collectively, the Series D Preferred,
the Series E Preferred and the Series F Preferred.
(ff) "Company Proxy Statement" shall have the meaning specified in Section
3.07.
(gg) "Company Real Property" shall have the meaning set forth in Section
3.15(a).
(hh) "Company Representatives" shall have the meaning specified in Section
5.03(a).
(ii) "Company SEC Reports" shall have the meaning specified in Section
3.06(a).
(jj) "Company Special Committee" shall have the meaning specified in the
Recitals.
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(kk) "Company Stockholder" means each holder of record (as of the Effective
Time) of the Company Capital Stock.
(ll) "Company Stockholders' Action" shall have the meaning specified in
Section 3.04(a).
(mm) "Company Stockholders' Meeting" shall have the meaning specified in
Section 5.02(c).
(nn) "Company Stockholders' Vote Condition" shall have the meaning
specified in Section 3.21.
(oo) "Company Terminating Breach" shall have the meaning specified in
Section 7.01(c).
(pp) "control" (including the terms "controlled by" and "under common
control with") means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a person, whether
through the ownership of voting securities or debt which is convertible into
voting securities, by contract, credit arrangement or otherwise; provided,
however, that the ownership, either alone or through or together with any
subsidiary, directly or indirectly, of more than 10% of the stock or other
equity interests the holders of which are generally entitled to vote for the
election of the board of directors or other governing body of a corporation or
other legal entity shall be deemed to constitute "control" of such corporation
or other legal entity.
(qq) "D&O Insurance" shall have the meaning specified in Section 5.11(b).
(rr) "Dissenting Stockholder" means any Company Stockholder exercising
dissenters' rights pursuant to Article 13 of Georgia Law.
(ss) "Effective Time" shall have the meaning specified in Section 2.02.
(tt) "Encumbrances" means any lien, pledge, hypothecation, claim,
infringement, charge, mortgage, security interest, encumbrance, prior
assignment, infringement, interference, option, right of first refusal,
preemptive right, community property interest or restriction of any nature
whatsoever (including any restriction on the voting of any security, any
restriction on the transfer of any security or other asset, any restriction on
the receipt of any income derived from any asset, any restriction on the use of
any asset and any restriction on the possession, exercise or transfer of any
other attribute of ownership of any asset).
(uu) "Environment" means any surface or subsurface physical medium or
natural resource, including, air, land, soil, surface waters, ground waters,
stream and river sediments, and biota.
(vv) "Environmental Laws" means any federal, state, local or common law,
rule, regulation, ordinance, code, order or judgment (including the common law
and any judicial or
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administrative interpretations, guidances, directives, policy statements or
opinions) relating to the injury to, or the pollution or protection of human
health and safety or the Environment.
(ww) "Environmental Liabilities" means any liability or obligation arising
under Environmental Laws to the extent arising from any condition existing or
any act or omission occurring prior to the Effective Time, including, without
limitation, any claims, demands, assessments, judgments, orders, causes of
action, notices of actual or alleged violations or liability (including such
notices regarding the disposal or release of Hazardous Substances on the Real
Property or elsewhere), proceedings and any associated costs, assessments,
investigations, losses, damages (including punitive damages), obligations,
liabilities, awards, fines, sanctions, penalties, or amounts paid in settlement
(including reasonable costs, fees and expenses of attorneys, accountants,
consultants and other agents of such person).
(xx) "ERISA" shall have the meaning specified in Section 3.12(a).
(yy) "Exchange Act" shall have the meaning specified in Section 3.05(b).
(zz) "Exchange Agent" shall have the meaning specified in Section 2.07(a).
(aaa) "Existing Stockholder Agreement" means that certain Stockholders'
Agreement dated as of December 17, 1999 by and among Hilton X. Xxxxxx, Xx.,
Xxxxxxx X. Xxxxxx, Xxxxxxxx-Xxxxxxx Partnership, X. Xxxxx Host and Xxxxxxx X.
Xxxxxx.
(bbb) "Form S-4" shall have the meaning specified in Section 5.02(a).
(ccc) "GAAP" means generally accepted accounting principles.
(ddd) "Georgia Law" shall have the meaning specified in the Recitals.
(eee) "Governmental Entity" means any foreign governmental or United States
federal, state or local governmental, administrative or regulatory authority,
commission, body, agency, court or any judicial body or other authority.
(fff) "Xxxx" means Xxxx Television, Inc., a Georgia corporation.
(ggg) "Xxxx Side Letter" means the letter agreement dated August 2, 2005
between Xxxx and the Company.
(hhh) "Hazardous Substances" means any materials or substances, pollutants,
contaminants, contaminants or wastes regulated by or defined under any
Environmental Law, including, without limitation, petroleum, petroleum products,
petroleum derived substances, radioactive materials, asbestos, polychlorinated
biphenyls, radon and lead based paint.
(iii) "Indebtedness for Borrowed Money" means with respect to any person,
all indebtedness in respect of money borrowed, including without limitation all
capital leases, and the deferred purchase price of any property or asset,
evidenced by a promissory note, bond,
5
indenture or similar written obligation for the payment of money, other than
trade payables and accrued expenses incurred in the ordinary course of business.
(jjj) information "made available" shall be limited to that information to
which access has been granted by the applicable party for review by another
party to this Agreement, by placing such information in a data room or
otherwise, and shall not include information obtained or discovered through
channels other than the providing party such as the Internet or public filings.
(kkk) "IRS" shall have the meaning specified in Section 3.12(c).
(lll) "Laws" shall have the meaning specified in Section 3.08(a).
(mmm) "Merger" shall have the meaning specified in the Recitals.
(nnn) "Merger Consideration" means, collectively, (i) the aggregate number
of shares of TCM Common Stock to be issued in exchange for the Company Common
Stock and to be reserved for Options in accordance with Section 5.06, (ii) the
aggregate number of shares of TCM Series A Preferred Stock to be issued in
exchange for the Series D Preferred and the Series E Preferred held by the
Series E Affiliated Stockholders, (iii) the aggregate amount of cash to be paid
in exchange for the Series E Preferred held by Series E Preferred stockholders
(other than Series E Affiliated Stockholders); (iv) the aggregate number of
shares of TCM Series A Preferred Stock to be issued in exchange for the accrued
and unpaid dividends (through July 1, 2005) on the Series D Preferred and Series
E Preferred held by Series E Affiliated Stockholders; (v) the repayment of the
Cash Advance; and (vi) the aggregate number of shares of TCM Common Stock to be
issued in exchange for the Series F Preferred Stock and all accrued and unpaid
dividends thereon (through July 1, 2005).
(ooo) "Merger Sub" shall have the meaning specified in the Introduction.
(ppp) "Nasdaq" means the Nasdaq National Market.
(qqq) "Option" shall have the meaning specified in Section 2.06(d).
(rrr) "ordinary course of business" means any action taken by a person
that: (i) is consistent in nature, scope and magnitude with the past practices
of such person and is taken in the ordinary course of the normal, day-to-day
operations of such person; and (ii) does not require authorization by the board
of directors or stockholders of such person (or by any person or group of
persons exercising similar authority).
(sss) "Permitted Encumbrance" shall have the meaning specified in Section
3.18.
(ttt) "person" means an individual, corporation, partnership, association,
trust, unincorporated organization or other entity or group (as defined in
Section 13(d)(3) of the Exchange Act).
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(uuu) "Refinancing" means a financing in which TCM receives funded debt of
at least $120.0 million.
(vvv) "Rule 145 Affiliate" shall have the meaning specified in Section
6.04.
(www) "Rule 145 Affiliate Agreement" shall have the meaning specified in
Section 6.04.
(xxx) "SEC" shall have the meaning specified in Section 3.06(a).
(yyy) "Securities Act" shall have the meaning specified in Section 3.05(b).
(zzz) "Separation and Distribution Agreement" means that certain Separation
and Distribution Agreement dated as of August 2, 2005 by and among Xxxx and TCM
attached hereto as Exhibit A.
(aaaa) "Series D Preferred" means the Series D Convertible Preferred Stock,
par value $0.01 per share, of the Company.
(bbbb) "Series E Affiliated Stockholder" means J. Xxxx Xxxxxxxx and any
transferee of J. Xxxx Xxxxxxxx.
(cccc) "Series E Preferred" means the Series E Convertible Preferred Stock,
par value $0.01 per share, of the Company.
(dddd) "Series E Preferred Stockholder" mean a holder of Series E
Preferred.
(eeee) "Series F Dividend Amount" means the aggregate of $290,000.
(ffff) "Series F Preferred" means the Series F Convertible Preferred Stock,
par value $0.01 per share, of the Company.
(gggg) "Solvency Opinion" shall have the meaning specified in Section
6.02(g).
(hhhh) "Spin-off" means the separation of Xxxx'x newspaper publishing
business and Graylink Wireless business from its other businesses, which result
will be accomplished by: (i) Xxxx contributing all of the membership interests
of Xxxx Publishing, LLC to TCM; and (ii) Xxxx subsequently distributing all of
the shares of TCM Common Stock to its stockholders, in each case in accordance
with the Separation and Distribution Agreement.
(iiii) "subsidiary" or "subsidiaries" of any person means any corporation,
partnership, joint venture or other legal entity of which such person (either
alone or through or together with any other subsidiary) owns, directly or
indirectly, more than 50% of the stock or other equity interests the holders of
which are generally entitled to vote for the election of the board of directors
or other governing body of such corporation or other legal entity.
(jjjj) "Superior Proposal" shall have the meaning specified in Section
5.03(b).
(kkkk) "Surviving Corporation" shall have the meaning specified in Section
2.01.
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(llll) "Surviving Corporation Common Stock" shall have the meaning
specified in Section 2.06(b).
(mmmm) "Takeover Proposal" shall have the meaning specified in Section
5.03(b).
(nnnn) "Takeover Proposal Interest" shall have the meaning specified in
Section 5.03(a).
(oooo) "Tax" or "Taxes" shall mean taxes, fees, levies, duties, tariffs,
imposts and governmental impositions or charges of any kind in the nature of (or
similar to) taxes, payable to any federal, state, provincial, local or foreign
taxing authority, including, without limitation, (i) income, franchise, profits,
gross receipts, ad valorem, net worth, value added, sales, use, service, real or
personal property, special assessments, capital stock, license, payroll,
withholding, employment, social security, workers' compensation, unemployment
compensation, utility, severance, production, excise, stamp, occupation,
premiums, windfall profits, transfer and gains taxes and (ii) interest,
penalties, additional taxes and additions to tax imposed with respect thereto.
(pppp) "Tax Sharing Agreement" means that certain Tax Sharing Agreement
dated as of August 2, 2005 by and among Xxxx and TCM attached hereto as Exhibit
B.
(qqqq) "Tax Returns" shall mean returns, reports and information statements
with respect to Taxes required to be filed with the IRS or any other taxing
authority, domestic or foreign, including, without limitation, consolidated,
combined and unitary tax returns.
(rrrr) "TCM" means Triple Crown Media, Inc., a Delaware corporation.
(ssss) "TCM Audited Financial Statements" shall have the meaning specified
in Section 4.07.
(tttt) "TCM Board" shall have the meaning specified in the Recitals.
(uuuu) "TCM Capital Stock" means the TCM Common Stock and the TCM Preferred
Stock.
(vvvv) "TCM Common Stock" means the common stock of TCM, par value $0.001
per share.
(wwww) "TCM Confidentiality Agreement" shall mean the confidentiality
agreement dated June 1, 2005 between TCM, Xxxx and the Company.
(xxxx) "TCM Disclosure Letter" shall have the meaning specified in Article
IV.
(yyyy) "TCM Financial Advisor" means Xxxxxxxx Xxxxx Xxxxxx & Xxxxx
Financial Advisors, Inc. and its affiliates.
(zzzz) "TCM Financial Statements" shall have the meaning specified in
Section 4.07.
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(aaaaa) "TCM Interim Financial Statements" shall have the meaning specified
in Section 4.07.
(bbbbb) "TCM Material Adverse Effect" means a material and adverse effect
on the operation of TCM taken as a whole; provided, however, that the following
shall not be taken into account in determining whether there has been or would
be a "Material Adverse Effect": (i) any adverse changes or developments
resulting from conditions affecting the United States economy generally; (ii)
any acts of war, insurrection, sabotage or terrorism; (iii) any adverse changes
or developments that are primarily caused by conditions affecting the newspaper
publishing and paging industries generally; and (iv) any adverse changes or
developments arising primarily out of, or resulting primarily from, actions
taken by any party in connection with (but not in breach of) this Agreement and
the transactions contemplated hereunder, or which are primarily attributable to
the announcement of this Agreement and the transactions contemplated hereby or
the identity of the Company.
(ccccc) "TCM Material Contracts" shall have the meaning specified in
Section 4.17.
(ddddd) "TCM Permits" shall have the meaning specified in Section 4.09(b).
(eeeee) "TCM Preferred Stock" means collectively, the TCM Series A
Preferred Stock and the TCM Series B Preferred Stock.
(fffff) "TCM Real Property" shall have the meaning specified in Section
4.15(a).
(ggggg) "TCM Representatives" shall have the meaning specified in Section
5.03(e).
(hhhhh) "TCM Series A Preferred Stock" mean the Series A convertible
preferred stock of TCM, par value $0.001 per share.
(iiiii) "TCM Series B Preferred Stock" mean the Series B convertible
preferred stock of TCM, par value $0.001 per share.
(jjjjj) "TCM Special Committee" shall have the meaning specified in the
Recitals.
(kkkkk) "TCM Superior Proposal" shall have the meaning specified in Section
5.03(f).
(lllll) "TCM Takeover Proposal" shall have the meaning specified in Section
5.03(f).
(mmmmm) "TCM Takeover Proposal Interest" shall have the meaning specified
in Section 5.03(e).
(nnnnn) "TCM Terminating Breach" shall have the meaning specified in
Section 7.01(d).
(ooooo) "Transaction" means the Spin-off and the Merger.
(ppppp) "Transaction Expenses" shall have the meaning specified in Section
5.09(a).
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ARTICLE II.
THE MERGER
SECTION 2.01 The Merger. Upon the terms and subject to the conditions set
forth in this Agreement, and in accordance with Georgia Law, at the Effective
Time, the Company shall be merged with and into Merger Sub. As a result of the
Merger, the separate corporate existence of the Company shall cease and Merger
Sub shall continue as the surviving corporation of the Merger (the "Surviving
Corporation") and shall succeed to and assume all the rights and obligations of
the Company in accordance with Georgia Law. Unless this Agreement has been
terminated pursuant to Article VII, and subject to the satisfaction or waiver of
the conditions set forth in Article VI, the consummation of the Merger (the
"Closing") will take place as promptly as practicable (and in any event within
three business days) after satisfaction or waiver of the conditions set forth in
Article VI, at the offices of Proskauer Rose LLP, 0000 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, unless another date, time or place is agreed to in writing by TCM
and the Company (the "Closing Date").
SECTION 2.02 Effective Time. As promptly as practicable after the
satisfaction or waiver of the conditions set forth in Article VI, the parties
hereto shall file articles of merger (the "Articles of Merger") with the
Secretary of State of the State of Georgia, in such form as required by, and
executed in accordance with the relevant provisions of, Georgia Law. The Merger
shall become effective at such time as the Articles of Merger are duly filed
with such Secretary of State, or at such other time as TCM and the Company shall
agree and specify in the Articles of Merger (the time the Merger becomes
effective being the "Effective Time").
SECTION 2.03 Effect of the Merger. At the Effective Time, the effect of the
Merger shall be as provided in this Agreement, the Articles of Merger and the
applicable provisions of Georgia Law. Without limiting the generality of the
foregoing, at the Effective Time, all the property, rights, privileges, powers
and franchises of the Company and Merger Sub shall vest in the Surviving
Corporation, and all debts, liabilities and duties of the Company and Merger Sub
shall become the debts, liabilities and duties of the Surviving Corporation.
SECTION 2.04 Articles of Incorporation; By-Laws.
(a) At the Effective Time, the Articles of Incorporation of Merger Sub, as
in effect immediately prior to the Effective Time, shall be the Articles of
Incorporation of the Surviving Corporation.
(b) The By-Laws of Merger Sub, as in effect immediately prior to the
Effective Time, shall be the By-Laws of the Surviving Corporation.
SECTION 2.05 Directors and Officers. The individuals named on Schedule 2.05
hereto shall be the initial directors of the Surviving Corporation, each to hold
office in accordance with the Articles of Incorporation and By-Laws of the
Surviving Corporation. The individuals named on Schedule 2.05 hereto shall be
the initial officers of the Surviving Corporation, each to hold office in
accordance with the Articles of Incorporation and By-Laws of
10
the Surviving Corporation until their respective successors are duly elected or
appointed and qualified.
SECTION 2.06 Effect on Capital Stock. At the Effective Time, by virtue of
the Merger and without any action on the part of any Company Stockholder or the
holder of any shares of the capital stock of Merger Sub:
(a) Cancellation of Shares of Company Common Stock and Company Preferred
Stock. Each share of common stock, par value $0.01 per share of the Company
("Company Common Stock") held by the Company as treasury stock (or by any
subsidiary of the Company) and each share of Company Preferred Stock held by the
Company as treasury stock (or by any subsidiary of the Company) immediately
prior to the Effective Time shall automatically be canceled and retired and
cease to exist, and no consideration or payment shall be delivered therefor or
in respect thereof.
(b) Capital Stock of Merger Sub. Each share of capital stock of Merger Sub
issued and outstanding immediately prior to the Effective Time shall be
converted into one fully paid and non-assessable share of common stock, par
value $0.001 per share of the Surviving Corporation ("Surviving Corporation
Common Stock"), with the same rights, powers and privileges as the shares so
converted and shall constitute the only outstanding shares of capital stock of
the Surviving Corporation. Each stock certificate of Merger Sub evidencing
ownership of any such shares shall remain outstanding and evidence ownership of
shares of Surviving Corporation Common Stock.
(c) Conversion of Company Capital Stock. Subject to Sections 2.08 and 5.06,
pursuant to this Agreement and by virtue of the Merger and without any action on
the part of the Company, Merger Sub, TCM or the holders of the Company Capital
Stock:
(i) each share of Company Common Stock outstanding immediately prior
to the Effective Time shall be cancelled and extinguished and thereafter
represent the right to receive 0.0289 of a share of TCM Common Stock (the
"Common Stock Exchange Ratio");
(ii) each share of Series D Preferred outstanding immediately prior to
the Effective Time shall be cancelled and extinguished and thereafter represent
the right to receive one share of TCM Series A Preferred Stock;
(iii) each share of Series E Preferred held by a Series E Affiliated
Stockholder and outstanding immediately prior to the Effective Time shall be
cancelled and extinguished and thereafter represent the right to receive one
share of TCM Series A Preferred Stock;
(iv) each share of Series E Preferred held by a Series E Preferred
stockholder (other than a Series E Affiliated Stockholder) and outstanding
immediately prior to the Effective Time shall be cancelled and extinguished and
thereafter represent the right receive $1,000; and
(v) each share of Series F Preferred Stock outstanding immediately
prior to Effective Time shall be cancelled and extinguished and thereafter
represent the right to receive 22.56 shares of TCM Common Stock.
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As of the Effective Time, all such shares shall no longer be outstanding
and shall automatically be cancelled and shall cease to exist, and each holder
of a certificate that immediately prior to the Effective Time represented any
such shares (a "Certificate") shall cease to have any rights with respect
thereto, except the right to receive the applicable Merger Consideration with
respect thereto and any cash in lieu of fractional shares of TCM Capital Stock
upon surrender of such Certificate in accordance with Section 2.07, without
interest. The right of any Company Stockholder to receive its portion of the
Merger Consideration in accordance with this Section 2.06(c) shall be subject to
and reduced by the amount of any withholding that is required under applicable
tax law.
(d) Stock Options. All options to purchase Company Common Stock granted
pursuant to the Company's 1994 Long Term Incentive Plan, as amended (the "1994
Plan"), or the Company's Non-Employee Directors' 1994 Stock Option Plan (the
"1994 Directors' Plan") (collectively, the "Company Option Plans") or pursuant
to any other arrangement adopted by the Company Board to provide options or
other rights to purchase Company Common Stock to directors, officers, employees
or consultants of the Company (in any such case, an "Option") then outstanding
(whether vested or unvested) shall be subject to the provisions of Section 5.06.
(e) Accrued and Unpaid Dividends. Pursuant to this Agreement, (i) at the
Effective Time, the Surviving Corporation shall pay each Series E Preferred
stockholder (other than a Series E Affiliated Stockholder) an amount equal to
the accrued and unpaid dividends due to each such stockholder, (ii) all accrued
and unpaid dividends (through July 1, 2005) on each outstanding share of Series
D Preferred and Series E Preferred held by a Series E Affiliated Stockholder
shall be converted at the Effective Time into the number of shares of TCM Series
A Preferred Stock determined by dividing the accrued and unpaid dividends due on
such shares by 1,000; provided that no fractional shares of TCM Series A
Preferred Stock shall be issued upon conversion and, upon such conversion, the
actual number of shares of TCM Series A Preferred Stock ultimately issued to any
holder shall have been rounded down to the nearest whole number of shares, and
(iii) all accrued and unpaid dividends (through July 1, 2005) on the outstanding
Series F Preferred shall be converted at the Effective Time into the number of
shares of TCM Common Stock determined by multiplying 0.0289 by the product of
the Series F Dividend Amount divided by $0.66; provided that no fractional
shares of TCM Common Stock shall be issued upon conversion and, upon such
conversion, the actual number of shares of TCM Common Stock ultimately issued to
any holder shall have been rounded down to the nearest whole number of shares.
(f) Cash Advance. Pursuant to this Agreement, at the Effective Time, the
Cash Advance shall be converted into 6,050 shares of TCM Series B Preferred
Stock.
SECTION 2.07 Exchange of Certificates. The procedures for exchanging
outstanding shares of Company Capital Stock for the applicable Merger
Consideration pursuant to the Merger are as follows:
(a) Exchange Agent. At or promptly following the Effective Time, TCM shall
deposit with Mellon Investor Services, LLC (the "Exchange Agent"), for the
benefit of the Company Stockholders, for exchange in accordance with this
Section 2.07, through the Exchange Agent, (i)
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the certificates representing shares of TCM Common Stock issuable pursuant to
Section 2.06(c)(i) in exchange for outstanding shares of Company Common Stock,
(ii) the certificates representing shares of TCM Series A Preferred Stock
issuable pursuant to Section 2.06(c)(ii), Section 2.06(c)(iii) and 2.06(e)(ii),
(iii) the cash payable pursuant to Section 2.06(c)(iv), (iv) the TCM Common
Stock issuable pursuant to Section 2.06(c)(v) and Section 2.06(e)(iii), and (v)
the TCM Series B Preferred Stock issuable pursuant to Section 2.06(f).
(b) Exchange Procedures. As soon as reasonably practicable after the
Effective Time and in any event no later than five (5) business days thereafter,
the Exchange Agent shall mail to each holder of record (as of the Effective
Time) of a Certificate whose shares were converted pursuant to Section 2.06(c)
into the applicable Merger Consideration (plus cash in lieu of fractional
shares, if any, of TCM Common Stock as provided in Section 2.07(e)) (i) a letter
of transmittal (which shall specify that delivery shall be effected, and risk of
loss and title to the Certificates held by such person shall pass, only upon
delivery of the Certificates to the Exchange Agent and shall be in such form and
have such other provisions as TCM may reasonably specify), and (ii) instructions
for effecting the surrender of the Certificates in exchange for the applicable
Merger Consideration (plus cash in lieu of fractional shares, if any, of TCM
Common Stock as provided in Section 2.07(e)). Upon surrender of a Certificate
for cancellation to the Exchange Agent or to such other agent or agents as may
be appointed by TCM, together with such letter of transmittal, duly completed
and validly executed, and such other documents as may reasonably be required by
the Exchange Agent, the holder of such Certificate shall be entitled to receive
in exchange therefor the applicable Merger Consideration plus cash in lieu of
fractional shares, if any, pursuant to Section 2.07(e), and the Certificate so
surrendered shall immediately be cancelled. In the event of a transfer of
ownership of Company Capital Stock that is not registered in the transfer
records of the Company, the applicable Merger Consideration issued (and if
applicable, paid) in exchange therefor plus cash in lieu of fractional shares,
if any, pursuant to Section 2.07(e) may be issued and paid to a person other
than the person in whose name the Certificate so surrendered is registered, if
such Certificate is presented to the Exchange Agent, accompanied by all
documents required to evidence and effect such transfer and by evidence that any
applicable stock transfer taxes with respect to such transfer have been paid.
Until surrendered as contemplated by this Section 2.07(b), each Certificate
shall be deemed at any time after the Effective Time to represent only the right
to receive upon such surrender the applicable Merger Consideration plus cash in
lieu of fractional shares, if any, pursuant to Section 2.07(e).
(c) Distributions with Respect to Unexchanged Shares. No dividends or other
distributions declared or made after the Effective Time with respect to shares
of TCM Capital Stock with a record date after the Effective Time shall be paid
to the holder of any unsurrendered Certificate with respect to the shares of TCM
Capital Stock represented thereby until the holder of record of such Certificate
surrenders such Certificate. Subject to applicable Law, following surrender of
any such Certificate, there shall be issued and paid to the record holder of the
Certificate, (i) the applicable Merger Consideration, (ii) the amount of any
cash payable in lieu of a fractional share of TCM Common Stock to which such
holder is entitled pursuant to Section 2.07(e), without interest and (iii) the
amount of dividends or other distributions with a record date after the
Effective Time payable with respect to such whole shares of TCM Capital Stock,
without interest.
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(d) No Registration of Transfers. From and after the Effective Time there
shall be no further registration of transfers on the stock transfer books of the
Surviving Corporation of any Company Capital Stock that was outstanding
immediately prior to the Effective Time. If, after the Effective Time,
Certificates are presented to the Surviving Corporation or the Exchange Agent
for any reason, they shall be cancelled and exchanged as provided in this
Article II.
(e) No Fractional Shares. No certificate or scrip representing fractional
shares of TCM Common Stock shall be issued upon the surrender for exchange of
Certificates, and such fractional share interests will not entitle the owner
thereof to vote or to any other rights of a stockholder of TCM. Fractional
shares of TCM Common Stock will be aggregated and sold in the market by the
Exchange Agent at the then prevailing prices. The aggregated net cash proceeds
of those sales will be distributed ratably to each holder of shares of Company
Common Stock exchanged pursuant to the Merger who would otherwise have been
entitled to receive a fraction of a share of TCM Common Stock (after taking into
account all Certificates delivered by such holder). No interest will be payable
upon any such cash payment. The parties acknowledge that payment of the cash
consideration in lieu of issuing fractional shares of TCM Common Stock was not
separately bargained for consideration but merely represents a mechanical
rounding off for purposes of simplifying the corporate and accounting problems
that would otherwise be caused by the issuance of fractional shares of TCM
Common Stock.
(f) Return of Merger Consideration. Subject to Section 2.07(g), any portion
of the Merger Consideration that remains undistributed to the Company
Stockholders for 180 days after the Effective Time shall be delivered to TCM,
upon demand, and any Company Stockholder who has not exchanged such Company
Stockholder's shares of Company Capital Stock for such Company Stockholder's
portion of the applicable Merger Consideration shall thereafter look only to
TCM, as an unsecured creditor for payment of its claim for the applicable Merger
Consideration or any cash in lieu of fractional shares and any dividends or
distributions with respect thereto.
(g) No Liability. To the extent permitted by applicable Law, none of TCM,
Merger Sub, the Company, the Surviving Corporation or the Exchange Agent shall
be liable to any Person for any portion of the Merger Consideration payable at
Closing (or dividends or distributions with respect thereto) required to be
delivered to a public official pursuant to any applicable abandoned property,
escheat or similar law.
(h) Withholding Rights. Each of TCM, the Surviving Corporation and the
Exchange Agent shall be entitled to deduct and withhold from the Merger
Consideration otherwise payable pursuant to this Agreement such amounts as it is
required to deduct and withhold with respect to the making of such payment under
the Code or any provision of state, local, provincial or foreign tax law. To the
extent that amounts are so withheld, such withheld amounts shall be treated for
all purposes of this Agreement as having been paid to the holder of Company
Capital Stock in respect of which such deduction and withholding was made.
(i) Lost, Stolen or Destroyed Certificates. If any Certificate shall have
been lost, stolen or destroyed, the Exchange Agent shall issue in exchange for
such lost, stolen or destroyed Certificate, upon the making of an affidavit of
that fact by the holder thereof, such portion of the
14
applicable Merger Consideration; provided, however, that the Surviving
Corporation may, in its sole discretion and as a condition precedent to the
issuance and delivery thereof, require the owner of such lost, stolen or
destroyed Certificate to deliver a bond in such sum as it may reasonably direct
as indemnity against any claim that may be made against the Surviving
Corporation with respect to the Certificate alleged to have been lost, stolen or
destroyed.
SECTION 2.08 Dissenters' Rights. Notwithstanding Section 2.06(c), if any
Dissenting Stockholder that is entitled to dissenters' rights demands to be paid
the "fair value" of such holder's shares of Company Capital Stock (as provided
in Section 14-2-1323 of Georgia Law) and complies with all conditions and
obligations necessary to perfect dissenters' rights in accordance with Article
13 of Georgia Law, such shares of Company Capital Stock shall not be converted
into the right to receive the Merger Consideration except as provided in this
Section 2.08, and the Company shall give TCM prompt (and in any event no later
than the second business day after receipt thereof) notice thereof and TCM shall
have the right to participate in all negotiations and proceedings with respect
to any such demands and to receive any related notices. Without limiting the
generality of the foregoing, the Company shall promptly (and in any event no
later than the second business day after receipt thereof) deliver to TCM a copy
of all notices of intent to demand payment delivered to the Company in
compliance with Section 14-2-1321 of Georgia Law. Neither the Company nor the
Surviving Corporation shall, except with the prior written consent of TCM,
voluntarily make any payment with respect to, or settle or offer to settle, any
such demand for payment. If any Dissenting Stockholder shall fail to perfect or
shall have effectively withdrawn or lost the right to dissent, the shares of
Company Capital Stock held by such Dissenting Stockholder shall thereupon be
treated as though such shares had been converted into the Merger Consideration
pursuant to Section 2.06.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to TCM and Merger Sub, subject to such
qualifications and exceptions as are disclosed in writing in the applicable
parts of the disclosure letter delivered by the Company to TCM and Merger Sub
concurrently herewith (the "Company Disclosure Letter"). The Company Disclosure
Letter shall be arranged in paragraphs corresponding to the numbered and
lettered paragraphs in this Article III and the disclosure in any paragraph
shall qualify other paragraphs in this Article III only to the extent that it is
specifically indicated in such paragraph.
SECTION 3.01 Organization and Qualification; Subsidiaries. Each of the
Company and its subsidiaries is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation and
has the requisite corporate power and authority necessary to own, lease and
operate the properties it purports to own, lease or operate and to carry on its
business as it is now being conducted. Each of the Company and its subsidiaries
is duly qualified or licensed as a foreign corporation to do business, and is in
good standing, in each jurisdiction where the character of its properties owned,
leased or operated by it or the nature of its activities makes such
qualification or licensing necessary, except for such failures to be so duly
qualified or licensed and in good standing that could not reasonably be expected
to have, individually or in the aggregate, a Company Material Adverse Effect. A
true
15
and complete list of all of the Company's subsidiaries, together with the
jurisdiction of incorporation of each subsidiary and the percentage of each
subsidiary's outstanding capital stock owned by the Company or another
subsidiary, is set forth in Section 3.01 of the Company Disclosure Letter. Other
than the Company's subsidiaries listed in Section 3.01 of the Company Disclosure
Letter, neither the Company nor its subsidiaries owns, directly or indirectly,
any equity or similar interest in, or any interest convertible into or
exchangeable or exercisable for any equity or similar interest in, any
corporation, partnership, joint venture, limited liability company or other
business association or entity, whether incorporated or unincorporated.
SECTION 3.02 Articles of Incorporation and By-Laws. The Company has
heretofore furnished or made available to TCM a complete and correct copy of the
Company Articles of Incorporation and By-Laws (the "Company By-Laws"), and a
complete and correct copy of the equivalent organizational documents of each of
the Company's subsidiaries, each as amended to date. The Company Articles of
Incorporation and Company By-Laws, and the equivalent organizational documents
of each of the Company's subsidiaries, are in full force and effect. The Company
is not in violation of any of the provisions of the Company Articles of
Incorporation or Company By-Laws and none of the Company's subsidiaries is in
violation of any of the provisions of its equivalent organizational documents.
SECTION 3.03 Capitalization.
(a) The authorized capital stock of the Company consists of 100,000,000
shares of Company Common Stock and 5,000,000 shares of Company Preferred Stock,
of which 100,000 shares are designated as Series D Preferred, 25,000 shares are
designated as Series E Preferred, and 25,000 shares are designated as Series F
Preferred. As of the date hereof, (i) 6,889,767 shares of Company Common Stock
are issued and outstanding, (ii) no shares of Company Common Stock are held in
the treasury of the Company, (iii) 293,437 shares of Company Common Stock are
reserved for issuance pursuant to outstanding Options granted under the Company
Option Plans, (iv) 12,496.71233 shares of Series D Preferred are issued and
outstanding, (v) 7,584.815 shares of Series E Preferred are issued and
outstanding, (vi) 2,000 shares of Series F Preferred are issued and outstanding,
(vii) no shares of Company Preferred Stock are held in the treasury of the
Company, (viii) 1,249,671 shares of Company Common Stock are reserved for
issuance upon conversion of issued and outstanding shares of Series D Preferred,
(ix) 1,083,545 shares of Company Common Stock are reserved for issuance upon
conversion of issued and outstanding shares of Series E Preferred and (x)
1,562,500 shares of Company Common Stock are reserved for issuance upon
conversion of issued and outstanding shares of Series F Preferred. As of the
date hereof, there are no other shares of Company Capital Stock issued and
outstanding or reserved for future issuance. All of the issued and outstanding
shares of Company Capital Stock are duly authorized, validly issued, fully paid,
non-assessable and free of preemptive rights. None of the issued and outstanding
shares of Company Capital Stock has been issued in violation of any applicable
federal or state Law or any preemptive rights or rights to subscribe for or
purchase securities. All shares of Company Capital Stock subject to issuance as
aforesaid in clauses (iii) and (viii) through (x), upon issuance on the terms
and conditions specified in the instruments pursuant to which they are issuable,
will be duly authorized, validly issued, fully paid, non-assessable and free of
preemptive rights and, assuming such issuance prior to the Effective Time, will
not have been issued in violation of the Company
16
Articles of Incorporation, any applicable federal or state Law or any preemptive
rights or rights to subscribe for or purchase securities. Except as set forth in
this Section 3.03 or Section 3.12, there are no options, warrants, calls or
preemptive rights relating to the issued or unissued capital stock of the
Company or any of its subsidiaries or obligating the Company or any of its
subsidiaries to issue, transfer, deliver or sell, or cause to be issued,
transferred, delivered or sold, any shares of capital stock of, or any
securities directly or indirectly convertible into or exercisable or
exchangeable for any shares of capital stock of, the Company or any of its
subsidiaries. Neither the Company nor any of its subsidiaries has issued and
outstanding any stock appreciation rights, phantom stock, performance based
rights or similar rights or obligations. There are no obligations, contingent or
otherwise, of the Company or any of its subsidiaries to repurchase, redeem or
otherwise acquire any shares of Company Capital Stock or capital stock of any
subsidiary or to provide funds to or make any investment (in the form of a loan,
capital contribution or otherwise) in the Company, any subsidiary or any other
entity, other than guarantees of bank obligations of subsidiaries entered into
in the ordinary course of business. Except for the Existing Stockholder
Agreement, there are no voting trusts, proxies or other agreements or
understandings with respect to any Company Capital Stock to which the Company
or, to the knowledge of the Company, any other person is a party or by which the
Company or any such other person is bound. All of the outstanding shares of
capital stock of each of the Company's subsidiaries are duly authorized, validly
issued, fully paid, non-assessable and free of preemptive rights, and all such
shares are owned of record and beneficially by the Company or another subsidiary
free and clear of any and all Encumbrances.
(b) Section 3.03(b) of the Company Disclosure Letter lists all holders of
Company Preferred Stock as of the date hereof, as well as the number, class and
series of shares of Company Preferred Stock held by each such holder.
(c) Section 3.03(c) of the Company Disclosure Letter sets forth a true and
complete list of each current or former employee, officer, director or
consultant of the Company or any of its subsidiaries that holds an Option as of
the date of this Agreement, together with the number of shares of Company Common
Stock subject to such Option, the date of grant of such Option, the exercise
price of such Option, the expiration date of such Option, the vesting schedule
for such Option and whether or not such Option is intended to qualify as an
"incentive stock option" within the meaning of Section 422(b) of the Code.
Section 3.03(c) of the Company Disclosure Letter also sets forth the total
number of outstanding Options. No awards of stock purchase rights have been
granted under the Company Option Plans.
SECTION 3.04 Authority Relative to This Agreement.
(a) The Company has all necessary corporate power and authority to execute
and deliver this Agreement and each of the Ancillary Agreements to which the
Company is a party (subject to the receipt of the consents described in Section
3.05(b)) and to perform its obligations hereunder and thereunder and to
consummate the transactions contemplated hereby and thereby (other than the
approval and adoption of this Agreement, the Merger and the other transactions
contemplated hereby by the stockholders of the Company in accordance with
Georgia Law and the Company Articles of Incorporation (the "Company
Stockholders' Action"). The execution and delivery of this Agreement and the
Ancillary Agreements by the Company and the
17
consummation by the Company of the transactions contemplated hereby and thereby
have been duly and validly authorized by all necessary corporate action on the
part of the Company, and no other corporate proceedings on the part of the
Company are necessary to authorize this Agreement or any of the Ancillary
Agreements or to consummate the transactions so contemplated, other than the
Company Stockholders' Action. This Agreement has been, and the Ancillary
Agreements will be, duly and validly executed and delivered by the Company and,
assuming the due authorization, execution and delivery of this Agreement and the
Ancillary Agreements by each of the other parties hereto and thereto,
constitutes, or, in the case of the Ancillary Agreements, will constitute,
legal, valid and binding obligations of the Company, enforceable against the
Company in accordance with their respective terms, except to the extent such
enforceability may be subject to applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws relating to or affecting creditors
generally or by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(b) The Company Special Committee and the Company Board (i) have
unanimously declared that this Agreement, the Merger and the other transactions
contemplated hereby (other than the Spin-off) and thereby are advisable, fair to
and in the best interests of the stockholders of the Company, (ii) have
unanimously authorized, approved and adopted this Agreement, the Ancillary
Agreements, the Merger and the other transactions contemplated hereby and
thereby and (iii) have recommended that the stockholders of the Company
authorize, approve and adopt this Agreement, the Merger and the other
transactions contemplated hereby (other than the Spin-off) and thereby.
SECTION 3.05 No Conflict; Required Filings and Consents.
(a) Except as set forth in Section 3.05 of the Company Disclosure Letter,
the execution and delivery of this Agreement and the Ancillary Agreements by the
Company do not, and the performance of this Agreement and the Ancillary
Agreements by the Company and the consummation by the Company of the
transactions contemplated hereby and thereby will not (i) conflict with or
violate the Company Articles of Incorporation or Company By-Laws or the
equivalent organizational documents of any of the Company's subsidiaries, (ii)
conflict with or violate any Law applicable to the Company or any of its
subsidiaries or by which any of its or any of its subsidiaries' properties or
operations is bound or affected or (iii) conflict with, result in any breach of,
or constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or impair the Company's or any of its
subsidiaries' rights or entitle any party to rights or privileges that such
party was not entitled to receive immediately before this Agreement or the
Ancillary Agreements were executed, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of an
Encumbrance (other than a Permitted Encumbrance) on any of the properties or
assets of the Company or any of its subsidiaries pursuant to, any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries, or any of its or
any of its subsidiaries' properties, is bound or affected, except in the case of
clauses (ii) and (iii), as would not, individually or in the aggregate, have a
Company Material Adverse Effect.
18
(b) The execution and delivery of this Agreement and the Ancillary
Agreements by the Company do not, and the performance of this Agreement and the
Ancillary Agreements by the Company and the consummation by the Company of the
transactions contemplated hereby and thereby will not, require any waiver,
consent, approval, authorization or permit of, or filing with or notification
to, any Governmental Entity or other third party, except (i) for applicable
requirements of the Securities Act of 1933, as amended (the "Securities Act"),
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and state
securities laws ("Blue Sky Laws"), (ii) for the filing of the Articles of Merger
as required by Georgia Law, and (iii) where the failure to obtain such consents,
approvals, authorizations or permits, or to make such filings or notifications,
would not prevent or delay consummation of the Merger, otherwise prevent or
delay the Company from performing its obligations under this Agreement.
SECTION 3.06 SEC Filings; Financial Statements.
(a) The Company has filed all forms, reports and documents required to be
filed by it pursuant to the Securities Act or the Exchange Act with the
Securities and Exchange Commission (the "SEC") since August 31, 2003
(collectively, the "Company SEC Reports"). The Company SEC Reports (i) were
prepared in compliance in all material respects with the requirements of the
Securities Act or the Exchange Act, as the case may be, and (ii) did not at the
time they were filed (or if amended or superseded by a filing prior to the date
of this Agreement, then on the date of such filing) contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. None of the
Company's subsidiaries is required to file any forms, reports or other documents
with the SEC.
(b) The consolidated financial statements (including, in each case, the
related notes thereto) contained in the Company SEC Reports were prepared in
accordance with GAAP applied on a consistent basis throughout the periods
involved (except as may be indicated therein or in the notes thereto), and
fairly present in all material respects the consolidated financial position of
the Company and its subsidiaries as at the respective dates thereof and the
consolidated results of its operations and cash flows for the periods indicated,
except that the unaudited interim financial statements were or are subject to
normal and recurring year-end adjustments which were not, or are not expected to
be, material in amount and such statements do not contain notes required by
GAAP.
(c) Since the date of the latest Company SEC Report that included the
certifications required by Rule 13a-14(a) of the Exchange Act, the Company has
not materially and adversely amended its disclosure controls and procedures (as
defined in Rule 13a-15(e) of the Exchange Act) or its internal controls over
financial reporting (as defined in Rule 13a-15(f) of the Exchange Act), as
previously described in its Company SEC Reports. The Company has made available
to TCM, complete and correct copies of, all formal written descriptions of, and
all policies, manuals and other documents promulgating, such disclosure controls
and procedures.
(d) Since the date of the latest Company SEC Report that included the
certifications required by Rule 13a-14(a) of the Exchange Act, neither the
Company nor any subsidiary nor, to the Company's knowledge, any member of the
audit committee or executive officer of the
19
Company or any subsidiary, has received any complaint, allegation, assertion or
claim, whether made in writing or orally to any such person, regarding the
accounting, internal accounting controls or auditing matters of the Company or
any subsidiary, including any complaint, allegation, assertion or claim that the
Company or any Subsidiary has engaged in questionable accounting or auditing
matters. Since the date of the latest Company SEC Report that included the
certifications required by Rule 13a-14(a) of the Exchange Act, no attorney
representing the Company or any subsidiary has reported evidence of a material
violation of the U.S. securities laws, or a material breach of fiduciary duty by
the Company or any of its officers or directors to the Company Board or any
committee thereof or to any executive officer of the Company. Since the date of
the latest Company SEC Report that included the certifications required by Rule
13a-14(a) of the Exchange Act, there have been no internal investigations
regarding improper accounting or revenue recognition initiated at the direction
of the chief executive officer, chief financial officer, general counsel, the
Company Board or any committee thereof.
(e) Except as provided in the Company SEC Reports, there are no material
off balance sheet arrangements (as defined in Item 303 of Regulation S-K) that
have or are reasonably likely to have a material current or future effect on the
Company's financial liquidity, capital expenditures or capital resources.
(f) The Company is in compliance in all material respects with the
applicable provisions of the Sarbanes Oxley Act of 2002 in effect as of the date
hereof.
SECTION 3.07 Proxy Statement. The Company Proxy Statement will comply in
all material respects with the Exchange Act. The Company Proxy Statement shall
not, at the time the Proxy Statement is mailed or at the time of the Company
Stockholder's Meeting or at the Effective Time, contain any untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that the Company makes no representation or warranty as to any of the
information supplied by or on behalf of TCM and Merger Sub specifically for
inclusion in the Company Proxy Statement. The letter to stockholders, notice of
meeting, proxy statement and form of proxy contained in the Form S-4, to be
distributed to stockholders in connection with the Merger, or any schedule
required to be filed with the SEC in connection therewith, together with any
amendments or supplements thereto, are collectively referred to herein as the
"Company Proxy Statement."
SECTION 3.08 Compliance, Permits.
(a) Each of the Company and its subsidiaries, and each of its and its
subsidiaries' properties and operations, are in compliance with all foreign,
federal, state and local statutes, laws, rules, regulations, ordinances, orders,
judgments, decrees and other authorizations and approvals of Governmental
Entities (collectively, "Laws"), applicable to the Company or any of its
subsidiaries or by which any of its or any of its subsidiaries' properties or
operations is bound or affected, except where any such non-compliance would not
have a Company Material Adverse Effect. Neither the Company nor any of its
subsidiaries has received any notice or other communication (whether written or
oral) from any Governmental Entity regarding any actual,
20
alleged, possible or potential violation of, or any failure to comply with, any
Law, except where any such violation or failure to comply would not have a
Company Material Adverse Effect.
(b) Each of the Company and its subsidiaries possesses all permits,
licenses, consents, franchises, orders, approvals, certifications, registrations
and authorizations from Governmental Entities necessary to enable it to continue
to own, lease, operate and use its assets and properties and conduct its
business as presently conducted, including all permits, licenses, consents,
franchises, orders, approvals, certifications, registrations and authorizations
required under applicable Environmental Laws (collectively, the "Company
Permits"), except where the failure to possess any of the foregoing would not
have a Company Material Adverse Effect. All of the Company Permits are valid and
in full force and effect, except where any such invalidity would not have a
Company Material Adverse Effect, and there is no proceeding pending to revoke,
cancel, rescind, refuse to renew in the ordinary course or modify any of the
Company Permits. Each of the Company and its subsidiaries is in compliance with
the terms and conditions of the Company Permits and with all material
requirements, standards and procedures of the Governmental Entities that issued
them, and with any limitation or, to the knowledge of the Company, proposed
limitation on any Company Permit, except where such non-compliance would not
have a Company Material Adverse Effect, and the Company has no reasonable basis
to believe that the business will not remain capable of continued operation
consistent with past practice and in compliance with the terms and conditions of
the Company Permits following consummation of the transactions contemplated by
this Agreement.
SECTION 3.09 Absence of Certain Changes or Events. Except as set forth in
Section 3.09 of the Company Disclosure Letter and to the extent specifically
disclosed in the Company SEC reports, since August 31, 2004, each of the Company
and its subsidiaries has conducted its business in the ordinary course
consistent with past practice and there has not been: (i) any Company Material
Adverse Effect; (ii) any damage to, destruction or loss of any material assets
of the Company or any of its subsidiaries (whether or not covered by insurance);
(iii) any declaration, setting aside or payment of any dividend or other
distribution in respect of the Company Capital Stock or any repurchase,
redemption or other acquisition by the Company or any of its subsidiaries of any
Company Capital Stock; (iv) any change in accounting methods, principles or
practices by the Company affecting the consolidated assets, liabilities, results
of operations or business of the Company, except insofar as have been required
by a change in GAAP; or (v) any action that, if it had been in effect, would
have been prohibited by Section 5.01.
SECTION 3.10 No Undisclosed Liabilities. At May 31, 2005, the Company and
each of its subsidiaries did not have any liabilities or obligations of any
nature (whether absolute, contingent or otherwise) other than those that would
be required to be and were reflected on a balance sheet prepared in accordance
with GAAP or for which adequate reserves are reflected in the Company's
financial statements. Since May 31, 2005, except (i) as and to the extent
specifically disclosed in the Company SEC Reports or accrued on the May 31, 2005
balance sheet, (ii) as set forth in Section 3.10 of the Company Disclosure
Letter, (iii) for liabilities incurred in the ordinary course of business and
otherwise not in contravention of this Agreement and (iv) where any liability,
individually or in the aggregate, would not have a Company Material Adverse
Effect, the Company and each of its subsidiaries does not have any liabilities
or
21
obligations of any nature (whether absolute, contingent or otherwise) other than
liabilities and obligations under this Agreement or incurred in connection with
the transactions contemplated by this Agreement.
SECTION 3.11 Litigation. Except as disclosed in Section 3.11 of the Company
Disclosure Letter, there is no claim, suit, action or proceeding pending or, to
the knowledge of the Company, threatened against the Company or any of its
subsidiaries that individually or in the aggregate has had or could reasonably
be expected to have a Company Material Adverse Effect, or which questions or
challenges the validity of this Agreement, the transactions contemplated by this
Agreement or any action taken or to be taken by the Company or which attempts to
restrain, enjoin or prohibit the transactions contemplated by this Agreement.
Except as disclosed in the Company Disclosure Letter, there is no judgment,
decree, injunction, rule or order of any Governmental Entity or arbitrator
outstanding against the Company or any of its subsidiaries which individually or
in the aggregate has had or could reasonably be expected to have a Company
Material Adverse Effect.
SECTION 3.12 Employee Benefit Plans; Employment Agreements.
(a) Section 3.12(a) of the Company Disclosure Letter sets forth a true and
complete list of all "employee benefit plans" within the meaning of Section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
and any other material bonus, profit sharing, compensation, pension, severance,
deferred compensation, fringe benefit, insurance, welfare, post-retirement,
health, life, stock option, stock purchase, restricted stock, tuition refund,
service award, company car, scholarship, relocation, disability, accident, sick,
vacation, holiday, termination, unemployment, individual employment, consulting,
executive compensation, incentive, commission, retention, change in control,
noncompetition and other plans, agreements, policies, trust funds or
arrangements (whether written or unwritten, insured or self-insured, domestic or
foreign) (1) established, maintained, sponsored or contributed to (or with
respect to which any obligation to contribute has been undertaken) by the
Company or any entity that would be deemed a "single employer" with the Company
under Section 414(b), (c), (m) or (o) of the Code or Section 4001 of ERISA (a
"Company ERISA Affiliate") on behalf of any employee, officer, director,
consultant or stockholder of the Company or any of its subsidiaries (whether
current, former or retired) or their beneficiaries or (2) with respect to which
the Company or any Company ERISA Affiliate has or has had any obligation on
behalf of any such employee, officer, director, consultant, stockholder or
beneficiary (each a "Company Plan" and, collectively, the "Company Plans"). True
and complete copies of each of the Company Plans and related documents have been
delivered or made available to TCM.
(b) None of the Company (including any subsidiary thereof), any Company
ERISA Affiliate or any of their respective predecessors has within the past six
years contributed to, contributes to, has within the past six years been
required to contribute to, or otherwise participated in or participates in or in
any way, directly or indirectly, has any liability with respect to any plan
subject to Section 412 of the Code, Section 302 of ERISA or Title IV of ERISA,
including, without limitation, any "multiemployer plan" (within the meaning of
Sections 3(37) or 4001(a)(3) of ERISA or Section 414(f) of the Code) or any
single employer pension plan (within
22
the meaning of Section 4001(a)(15) of ERISA) which is subject to Sections 4063
and 4064 of ERISA.
(c) Except as set forth in Section 3.12(c) of the Company Disclosure
Letter, With respect to each of the Company Plans: (1) each Company Plan
intended to qualify under Section 401(a) of the Code has received a favorable
opinion letter or advisory letter of the master and prototype plan sponsor of
such plan in accordance with Announcement 2001-77 by the United States Internal
Revenue Service (the "IRS") and nothing has occurred or, is expected to occur
through the date of the Effective Time that caused or is reasonably likely to
cause the loss of such qualification or the imposition of any penalty or tax
liability; (2) all payments required by such Company Plan, any collective
bargaining agreement or other agreement, or by Law (including, without
limitation, all contributions, insurance premiums or intercompany charges) with
respect to all prior periods have been made or provided for by the Company as
applicable, in accordance with the provisions of such Company Plan, applicable
Law and United States GAAP; (3) no claim, lawsuit, arbitration or other action
has been asserted, instituted or, to the knowledge of the Company, is threatened
against such Company Plan (other than routine claims for benefits and appeals of
such claims), any trustee or fiduciaries thereof, the Company (including any
subsidiary thereof), any Company ERISA Affiliate, any director, officer or
employee thereof, or any of the assets of any trust of such Company Plan; (4)
such Company Plan complies and has been maintained and operated in all material
respects in accordance with its terms and applicable Law, including, without
limitation, ERISA and the Code; (5) no non-exempt "prohibited transaction,"
within the meaning of Section 4975 of the Code and Section 406 of ERISA, has
occurred or is reasonably expected to occur with respect to such Company Plan
that could result in the imposition of any penalty or tax on the Company or any
Company ERISA Affiliate; and (6) such Company Plan is not under, and the Company
has not received any notice of, an audit or investigation by the IRS, U.S.
Department of Labor or any other Governmental Entity and no such completed
audit, if any, has resulted in the imposition of any tax or penalty.
(d) Except as set forth in Section 3.12(d) of the Company Disclosure
Letter, the consummation of the transactions contemplated by this Agreement
alone, or in combination with a termination of any employee, director or
stockholder of the Company or any of its subsidiaries (whether current, former
or retired), will not give rise to any liability under any Company Plan,
including, without limitation, liability for severance pay, or accelerate the
time of payment or vesting or increase the amount of compensation or benefits
due to any employee, director or stockholder of the Company or any of its
subsidiaries (whether current, former or retired) or their beneficiaries. No
amounts payable under any Company Plan will fail to be deductible for federal
income tax purposes by virtue of Sections 280G or 162(m) of the Code. Neither
the Company (including any subsidiary thereof) nor any Company ERISA Affiliate
maintains, contributes to or in any way provides for any benefits of any kind
whatsoever (other than under Section 4980B of the Code, the Federal Social
Security Act or a plan qualified under Section 401(a) of the Code) to any
current or future retiree or terminee. Any individual who performs services for
the Company or any of its subsidiaries and who is not treated as an employee for
federal income tax purposes by the Company or any of its subsidiaries is not an
employee under applicable Law or for any purpose including, without limitation,
for tax withholding purposes or Company Plan purposes.
23
(e) None of the Company, its subsidiaries and their respective Company
ERISA Affiliates have any unfunded liabilities pursuant to any Company Plan that
is not intended to be qualified under Section 401(a) of the Code and is an
employee pension benefit plan within the meaning of Section 3(2) of ERISA, a
nonqualified deferred compensation plan or an excess benefit plan. Each Company
Plan that is a "nonqualified deferred compensation plan" (as defined under
Section 409A(d)(1) of the Code) has been operated and administered in good faith
compliance with Section 409A of the Code from the period beginning January 1,
2005 through the date hereof and has not been materially modified since October
2, 2004.
SECTION 3.13 Employees; Labor Matters.
(a) No employee or former employee of the Company or any of its
subsidiaries is owed any wages, benefits or other compensation for past services
(other than wages, benefits and compensation accrued in the ordinary course of
business during the current pay period and accrued vacation).
(b) There are no labor disputes, including, without limitation, charges of
unfair labor practices within the meaning of the National Labor Relations Act,
pending or, to the knowledge of the Company, threatened against the Company or
any of its subsidiaries by any of its employees. Neither the Company nor any of
its subsidiaries, within the past five years, has or is knowingly engaged in any
unfair labor practices within the meaning of the National Labor Relations Act,
except where such actions would not have a Company Material Adverse Effect.
Neither the Company nor any of its subsidiaries is presently a party to, or is
bound by, any collective bargaining agreement or union contract with respect to
any persons employed by the Company or any of its subsidiaries, and no
collective bargaining agreement is being negotiated by the Company or any of its
subsidiaries. To the knowledge of the Company, no organizing activities are
presently being made or are threatened by or on behalf of any labor union with
respect to any employees of the Company or any of its subsidiaries. The Company
has no knowledge of any strikes, slowdowns, work stoppages or lockouts, or
threats thereof, by or with respect to any employees of the Company or any of
its subsidiaries, and there have been no such strikes, slowdowns, work stoppages
or lockouts within the past three years. Each of the Company and its
subsidiaries is in compliance with all applicable Laws relating to employment
and employment practices, workers' compensation, terms and conditions of
employment, worker safety, wages and hours and the Worker Adjustment and
Retraining Notification Act, except where such non-compliance would not have a
Company Material Adverse Effect. There has been no harassment, discrimination,
retaliatory act or similar claim against any officer, director or employee of
the Company or any of its subsidiaries at any time during the past three years,
except where any such action would not have a Company Material Adverse Effect.
SECTION 3.14 Taxes.
(a) Except as set forth in Section 3.14(a) of the Company Disclosure
Letter, each of the Company and its subsidiaries, and any consolidated,
combined, unitary or aggregate group for Tax purposes of which the Company or
any of its subsidiaries is a member, have timely filed all United States federal
income Tax Returns and all other Tax Returns required to be filed by them or any
of them (taking into account applicable extensions), and have timely paid and
discharged
24
all material Taxes required to be paid (whether or not shown on such Tax
Returns), other than Taxes the payment of which is being contested in good faith
by appropriate proceedings. The most recent financial statements contained in
the Company SEC Reports reflect, with respect to any liability for Taxes of the
Company and its subsidiaries for any years ended on or before the date of such
Company SEC Reports and either not finally determined or with respect to which
the applicable statute of limitations has not expired, an adequate reserve to
satisfy any assessment for such Taxes for such years. All federal income Tax
Returns and all other Tax Returns filed by each of the Company and its
subsidiaries with respect to Taxes are true and correct in all material
respects. Copies of all federal, state and foreign income Tax Returns for the
three years preceding the Closing Date that are true, complete and correct in
all material respects have been previously provided or made available to TCM.
Neither the IRS nor any other taxing authority or agency is now asserting or, to
the Company's knowledge, threatening to assert against the Company or any of its
subsidiaries any deficiency or claim for material additional Taxes which have
not been paid. There are no requests for information from the IRS or any other
taxing authority or agency currently outstanding. There are no pending audits of
the Company or any of its subsidiaries by any taxing authority nor, to the
Company's knowledge, are any proceedings (whether administrative or judicial)
currently being conducted with respect to any issues relating to Taxes. No Tax
claim has become a lien on any assets of the Company or any of its subsidiaries.
Neither the Company nor any of its subsidiaries is required to include in income
(i) any material items in respect of any change in accounting methods or (ii)
any gain with respect to installment sales.
(b) (i) Neither the Company nor any of its subsidiaries has any liability
for any accumulated earnings tax or personal holding company tax; (ii) there are
no waivers or extensions of any applicable statute of limitations for the
assessment or collection of Taxes with respect to any Tax Return that relates to
the Company or any of its subsidiaries that remain in effect; (iii) there are no
Tax rulings or closing agreements relating to the Company or any of its
subsidiaries that would affect its or any of their liability for Taxes for any
period after the Effective Time; and (iv) neither the Company nor any of its
subsidiaries has any liability for Taxes of any person (other than the Company
and its subsidiaries) under Treasury Regulation Section 1.1502-6 or any similar
state, local or foreign provision.
(c) Neither the Company nor any of its subsidiaries is a party to any
agreement (written or oral) providing for the allocation or sharing of, or
indemnification from, Taxes with any party other than the Company and/or one or
more of its subsidiaries.
(d) Each of the Company and its subsidiaries has withheld from each payment
made to any of its past or present employees, officers or directors, or any
other person, the amount of all material Taxes and other deductions required to
be withheld therefrom and paid the same to the proper taxing authorities within
the time required by Law, including , without limitation, withholding Taxes on
Options exercised prior to the Closing.
(e) The Company is not, nor was it any time during the five-year period
ending on the date on which the Effective Time occurs, a "United States real
property holding corporation" within the meaning of Section 897(c) of the Code.
25
(f) Neither the Company nor any of its subsidiaries has any excess loss
accounts or deferred intercompany gain.
SECTION 3.15 Environmental Matters.
(a) All of the current and past operations of the Company, its subsidiaries
and the Assets, including any operations at or from any real property owned,
used, leased, occupied, managed or operated by the Company or any of its
subsidiaries (the "Company Real Property"), comply and have at all times during
the Company's ownership, use or operation thereof complied in all material
respects with all applicable Environmental Laws. Neither the Company nor any of
its subsidiaries, or, to the knowledge of the Company, any other person, has
engaged in, authorized, allowed or suffered any operations or activities upon
any of the Company Real Property for the purpose of or in any way involving the
handling, manufacture, treatment, processing, storage, use, generation, release,
discharge, emission, dumping or disposal of any Hazardous Substances at, on or
under the Company Real Property, except in compliance with all applicable
Environmental Laws.
(b) Neither the Assets nor the Company Real Property contain any Hazardous
Substances in, on, over, under or at it in concentrations which would presently
violate Environmental Laws or impose liability or obligations on the present or
former owner, manager, or operator of the Company Real Property under the
Environmental Laws for any investigation, corrective action, remediation or
monitoring of Hazardous Substances in, on, over, under or at the Company Real
Property. None of the Company Real Property is listed or proposed for listing on
the National Priorities List pursuant to the Comprehensive Environmental
Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. Section 9601 et
seq., or any similar inventory of sites requiring investigation or remediation
maintained by any state. Neither the Company nor any of its subsidiaries has
received any notice, whether oral or written, from any Governmental Entity or
other person of any actual or threatened Environmental Liabilities with respect
to the Company, its subsidiaries, the Company Real Property or the Assets or the
conduct of the business of the Company or any of its subsidiaries.
(c) There are no underground storage tanks, asbestos or asbestos containing
materials, polychlorinated biphenyls, urea formaldehyde, or other Hazardous
Substances (other than small quantities of Hazardous Substances stored and
maintained in accordance and compliance with all applicable Environmental Laws
for use in the ordinary course of business of the Company and its subsidiaries)
in, on, over, under or at any presently owned, managed or operated Company Real
Property.
(d) To the knowledge of the Company, there are no conditions existing at
any Company Real Property or with respect to the Assets, that require, or which
with the giving of notice or the passage of time or both may require remedial or
corrective action, removal or closure pursuant to the Environmental Laws.
(e) The Company has provided or made available to TCM all material
environmental reports, assessments, audits, studies, investigations, data and
other material written
26
environmental information in its custody, possession or control concerning the
Company, its subsidiaries, the Assets or the Company Real Property.
(f) Neither the Company nor any of its subsidiaries has contractually, or
to the knowledge of the Company, by operation of law, by the Environmental Laws,
by common law or otherwise assumed or succeeded to any Environmental Liabilities
of any predecessors or any other person.
SECTION 3.16 Brokers. Except for those fees and expenses payable to the
Company Financial Advisor, no broker, finder or investment banker is entitled to
any brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of the Company. The Company has heretofore furnished to TCM a complete
and correct copy of all agreements between the Company and the Company Financial
Advisor, pursuant to which such firm would be entitled to any payment relating
to the transactions contemplated by this Agreement.
SECTION 3.17 Material Contracts. All of the material contracts that are
required to be described in the Company SEC Reports or required to be filed as
exhibits thereto have been described or filed as required. The Company is not,
and to the knowledge of the Company the other parties thereto are not, in
violation of, or in default under (nor does there exist any condition which upon
the passage of time or the giving of notice would cause such a violation of or
default under) any such contract, except for violations or defaults that
individually or in the aggregate have not and could not reasonably be expected
to have a Company Material Adverse Effect.
SECTION 3.18 Title to Properties; Absence of Encumbrances. The Company has
title to, or leasehold interests in, its properties sufficient to operate such
properties and to conduct its business in the ordinary course, except (i) for
those securing Taxes, assessments and other governmental charges or levies not
yet due and payable (excluding any imposed pursuant to any of the provisions of
ERISA), (ii) as listed in Section 3.18 of the Company Disclosure Letter, (iii)
such imperfections in title, liens and easements as do not materially detract
from or interfere with the use of the properties subject thereto or affected
thereby or otherwise materially impair business operations involving such
properties, and (iv) Encumbrances securing debt that is reflected in the most
recent financial statements contained in the Company SEC Reports (each of the
Encumbrances set forth in (i) through (iv), a "Permitted Encumbrance") that
individually or in the aggregate have not had and could not reasonably be
expected to have a Company Material Adverse Effect. The Company and its
subsidiaries have all patents, trademarks, trade names, service marks,
copyrights, know-how, processes and all agreements and other rights necessary to
carry on their business in substantially the same manner as now conducted. The
patents, trademarks and copyrights owned by the Company are valid and
enforceable and to the knowledge of the Company do not infringe on the rights of
any persons.
SECTION 3.19 Insurance. The Company and its subsidiaries maintain policies
of fire and casualty, liability and other forms of insurance in such amounts,
with such deductibles and against such risks and losses as are, in the Company's
judgment, reasonable for the assets and properties of the Company and its
subsidiaries and customary in the Company's industry, except
27
where the failure to maintain any such policy has not had and could not
reasonably be expected to have a Company Material Adverse Effect. As of the date
of this Agreement, except as individually or in the aggregate have not had and
could not reasonably be expected to have a Company Material Adverse Effect and
except as set forth in Section 3.19 of the Company Disclosure Letter, all such
policies are in full force and effect, all premiums due and payable thereon have
been paid or accrued, and no notice of cancellation or termination has been
received by the Company with respect to any such policy.
SECTION 3.20 Tax Matters. None of the Company, any of its subsidiaries or
any of their respective affiliates, directors, officers, employees or agents has
taken, or agreed or failed to take, any action that to their knowledge would
prevent the Merger from constituting a reorganization within the meaning of
Section 368(a) of the Code. None of the Company, any of its subsidiaries or, to
the knowledge of the Company, any of their respective affiliates, directors,
officers, employees or agents is aware of any agreement, plan or other
circumstance that would prevent the Merger from constituting a reorganization
with the meaning of Section 368(a) of the Code.
SECTION 3.21 Vote Required. The affirmative vote of the holders of (x) a
majority of each class of the then outstanding shares of Company Preferred
Stock, each voting separately as a single class, and (y) a majority of the
outstanding shares of Company Common Stock entitled to vote on the Merger is the
only vote of the holders of any class or series of the Company Capital Stock
necessary to approve or adopt this Agreement, the Merger or the consummation of
the other transactions contemplated hereby (the "Company Stockholders' Vote
Condition"). For purposes of the Company Stockholders' Vote Condition, each
outstanding share of Company Common Stock and each outstanding share of Company
Preferred Stock is entitled to one vote.
SECTION 3.22 State Takeover Statutes. The approval of this Agreement, the
Merger and the Ancillary Agreements and the transactions contemplated hereby and
thereby by the Company Board referred to in Section 3.04(b) constitutes approval
of this Agreement, the Merger and the Ancillary Agreements and the transactions
contemplated hereby and thereby for purposes of Section 14-2-1132 of Georgia Law
and represents the only action necessary to ensure that Section 14-2-1132 of
Georgia Law does not and will not apply to the execution and delivery of this
Agreement or the Ancillary Agreements or the consummation of the Merger or the
other transactions contemplated hereby (other than the Spin-off) or thereby. No
other state takeover or similar statute or regulation is applicable to this
Agreement, the Merger or the other transactions contemplated by this Agreement.
The Company has no shareholder rights or "poison pill" that would be applicable
to the Merger, this Agreement, the Ancillary Agreements or the transactions
contemplated hereby or thereby.
SECTION 3.23 Fairness Opinion. The Company has received the written opinion
of the Company Financial Advisor, in customary form and based on customary
assumptions, to the effect that the Common Stock Exchange Ratio is fair to the
holders of the Company Common Stock (other than J. Xxxx Xxxxxxxx and other
affiliated stockholders of the Company). The Company has delivered to TCM a
true, correct and complete copy of such opinion. The Company has been authorized
by the Company Financial Advisor to permit the inclusion of such
28
opinion (and, subject to prior review and consent by the Company Financial
Advisor, a reference thereto) in the Company Proxy Statement.
SECTION 3.24 No Other Representations and Warranties.
(a) Except for (i) the representations and warranties contained in Article
IV, (ii) in connection with any information supplied by TCM for inclusion in the
Form S-4 and (iii) the representations and warranties contained in the Xxxx Side
Letter, the Company acknowledges that neither TCM nor any other person makes any
express or implied representation or warranty with respect to TCM or its
subsidiaries, the business of TCM and its subsidiaries or otherwise or with
respect to any other information provided to the Company, whether on behalf of
TCM or such other persons, including the success or profitability of the
ownership, use or operation of the business of TCM and its subsidiaries Business
after the Closing.
(b) In connection with the Company's investigation of the Assets and the
business of TCM and its subsidiaries, the Company may have received or may
receive from or on behalf of TCM or its subsidiaries certain projections or
forward-looking statements, including projected statements of operating revenues
and income from operations. The Company acknowledges that there are
uncertainties inherent in attempting to make such estimates, projections and
other forecasts and plans, that the Company is familiar with such uncertainties,
that the Company is taking full responsibility for making its own evaluation of
the adequacy and accuracy of all estimates, projections and other forecasts and
plans so furnished to it, and that the Company, in the absence of fraud, or
except as provided in the next sentence, shall have no claim against TCM or any
of its subsidiaries or any other person acting on their behalf with respect
thereto whether before or after the execution and delivery of this Agreement or
the Closing Date. Accordingly, neither TCM nor its subsidiaries make any
representation or warranty with respect to such estimates, projections,
forward-looking statements and other forecasts and plans, except that TCM and
its subsidiaries had a reasonable basis to make such estimates, projections,
forward-looking statements and other forecasts and plans. Notwithstanding the
preceding sentence, nothing in this Section 3.24(b) shall be construed to limit
the representations and warranties of the Company set forth in Sections 3.06,
3.07, 3.09, 3.10 and 3.18.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF TCM
TCM and Merger Sub represent and warrant to the Company, subject to such
qualifications and exceptions as are disclosed in writing in the applicable
parts of the disclosure letter delivered by TCM to the Company concurrently
herewith (the "TCM Disclosure Letter"). The TCM Disclosure Letter shall be
arranged in paragraphs corresponding to the numbered and lettered paragraphs in
this Article IV and the disclosure in any paragraph shall qualify other
paragraphs in this Article IV only to the extent that it is specifically
indicated in such paragraph.
SECTION 4.01 Organization and Qualification. Each of TCM and Merger Sub is
a corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization and has the requisite corporate
power and authority necessary to own, lease and operate the properties it
purports to own, lease or operate and to carry on its
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business as it is now being conducted. Each of TCM and Merger Sub is duly
qualified or licensed to do business, and is in good standing, in each
jurisdiction where the character of its properties owned, leased or operated by
it or the nature of its activities makes such qualification or licensing
necessary, except for such failures to be so duly qualified or licensed and in
good standing that would not result in a material adverse effect on the
business, operations, condition (financial or otherwise), assets, properties
(including intangible properties) or liabilities of TCM and its subsidiaries,
taken as a whole. Other than Merger Sub and TCM's subsidiaries listed in Section
4.01 of the TCM Disclosure Letter, neither TCM, Merger Sub nor its respective
subsidiaries owns, directly or indirectly, any equity or similar interest in, or
any interest convertible into or exchangeable or exercisable for any equity or
similar interest in, any corporation, partnership, joint venture, limited
liability company or other business association or entity, whether incorporated
or unincorporated.
SECTION 4.02 Organizational Documents. TCM has heretofore furnished to the
Company a complete and correct copy of its organizational documents and the
organizational documents of Merger Sub, each as amended to date. Such
organizational documents are in full force and effect. Neither TCM nor Merger
Sub is in violation of any of the provisions of its organizational documents.
SECTION 4.03 Capitalization. The authorized capital stock of the TCM
consists of (i) 25,000,000 shares of TCM Common Stock, and (ii) 150,000 shares
of TCM Preferred Stock of TCM, of which 50,000 shares have been designated as
TCM Series A Preferred Stock and 20,000 shares have been designated as TCM
Series B Preferred Stock. As of the date hereof, (i) 100 shares of TCM Common
Stock are issued and outstanding, (ii) no share of TCM Common Stock is held in
the treasury of TCM, and (iii) no share of TCM Preferred Stock is issued and
outstanding. As of the date hereof, there are no other shares of TCM Capital
Stock issued and outstanding or reserved for future issuance. All of the issued
and outstanding shares of TCM Capital Stock are duly authorized, validly issued,
fully paid, non-assessable and free of preemptive rights. None of the issued and
outstanding shares of TCM Capital Stock has been issued in violation of any
applicable federal or state Law or any preemptive rights or rights to subscribe
for or purchase securities. There are no options, warrants, calls or preemptive
rights relating to the issued or unissued capital stock of TCM or any of its
subsidiaries or obligating TCM or any of its subsidiaries to issue, transfer,
deliver or sell, or cause to be issued, transferred, delivered or sold, any
shares of capital stock of, or any securities directly or indirectly convertible
into or exercisable or exchangeable for any shares of capital stock of, TCM or
any of its subsidiaries. Neither TCM nor any of its subsidiaries has issued and
outstanding any stock appreciation rights, phantom stock, performance based
rights or similar rights or obligations. There are no obligations, contingent or
otherwise, of TCM or any of its subsidiaries to repurchase, redeem or otherwise
acquire any shares of TCM Capital Stock or capital stock of any subsidiary or to
provide funds to or make any investment (in the form of a loan, capital
contribution or otherwise) in TCM, any subsidiary or any other entity, other
than guarantees of bank obligations of subsidiaries entered into in the ordinary
course of business. There are no voting trusts, proxies or other agreements or
understandings with respect to any TCM Capital Stock to which TCM or, to the
knowledge of TCM, any other person is a party or by which TCM or any such other
person is bound. All of the outstanding shares of capital stock of each of TCM's
subsidiaries are duly authorized, validly issued, fully paid, non-assessable and
free of
30
preemptive rights, and all such shares are owned of record and beneficially by
TCM or another subsidiary free and clear of any and all Encumbrances.
SECTION 4.04 Issuance of Merger Consideration. The issuance of the TCM
Common Stock pursuant to the Merger has been duly authorized by all necessary
corporate action and, when issued in accordance with the terms of this Agreement
and the instruments pursuant to which they are issuable, such shares of TCM
Common Stock will be duly authorized and validly issued, fully paid and
non-assessable.
SECTION 4.05 Authority Relative to this Agreement.
(a) Each of TCM and Merger Sub has all necessary corporate power and
authority to execute and deliver this Agreement and each of the Ancillary
Agreements to which it is a party and (subject to the receipt of the consents
described in Section 4.06(b) hereof) to perform its obligations hereunder and
thereunder and to consummate the transactions contemplated hereby and thereby.
The execution and delivery of this Agreement and the Ancillary Agreements to
which it is a party by TCM and Merger Sub, and the consummation by TCM and
Merger Sub of the transactions contemplated hereby and thereby, have been duly
and validly authorized by all necessary corporate action on the part of TCM and
Merger Sub, as the case may be, and no other corporate proceedings on the part
of TCM or Merger Sub are necessary to authorize this Agreement or any of the
Ancillary Agreements or to consummate the transactions so contemplated. This
Agreement has been, and the Ancillary Agreements will be, duly and validly
executed and delivered by TCM and Merger Sub and, assuming the due
authorization, execution and delivery of this Agreement and the Ancillary
Agreements by each of the other parties hereto and thereto, constitutes, or, in
the case of the Ancillary Agreements, will constitute, legal, valid and binding
obligations of TCM and Merger Sub, enforceable against TCM and Merger Sub in
accordance with their respective terms.
(b) The board of directors of Merger Sub (i) has declared that this
Agreement, the Merger, the Ancillary Agreements to which it is party and the
other transactions contemplated hereby and thereby are advisable and in the best
interests of its stockholder and (ii) has authorized, approved and adopted this
Agreement, the Ancillary Agreements to which it is party, the Merger and the
other transactions contemplated hereby and thereby.
(c) The TCM Special Committee and the TCM Board (i) have unanimously
declared that this Agreement, the Merger, the Ancillary Agreements and the other
transactions contemplated hereby and thereby are advisable, fair to and in the
best interests of the stockholder of TCM and (ii) have unanimously authorized,
approved and adopted this Agreement, the Ancillary Agreements, the Merger and
the other transactions contemplated hereby and thereby.
(d) The sole stockholder of TCM and the sole stockholder of Merger Sub have
authorized, approved and adopted this Agreement, the Ancillary Agreements, the
Merger and the other transactions contemplated hereby and thereby.
SECTION 4.06 No Conflict; Required Filings and Consents.
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(a) The execution and delivery of this Agreement and the Ancillary
Agreements by TCM and Merger Sub do not, and the performance of this Agreement
and the Ancillary Agreements by TCM and Merger Sub and the consummation by TCM
and Merger Sub of the transactions contemplated hereby and thereby will not, (i)
conflict with or violate the organizational documents of TCM or Merger Sub, (ii)
conflict with or violate any Law applicable to TCM or Merger Sub or by which any
of their respective properties is bound or affected or (iii) conflict with,
result in any breach of, or constitute a default (or an event that with notice
or lapse of time or both would become a default) under, or impair TCM's or
Merger Sub's rights or alter the rights or obligations of any third party under,
or give to others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of an Encumbrance (other than a
Permitted Encumbrance) on any of the material properties or assets of TCM or
Merger Sub pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which TCM or Merger Sub is a party or by which TCM or Merger Sub or any of
their respective properties is bound or affected except, in the case of clauses
(ii) and (iii), for such conflicts, breaches, violations, defaults, impairments
or alterations that would not prevent or delay consummation of the Merger, or
otherwise prevent or delay TCM or Merger Sub from performing its obligations
under this Agreement.
(b) Except as set forth in Section 4.06(b) of the TCM Disclosure Letter,
the execution and delivery of this Agreement and the Ancillary Agreements by TCM
and Merger Sub do not, and the performance of this Agreement and the Ancillary
Agreements by TCM and Merger Sub and the consummation by TCM and Merger Sub of
the transactions contemplated hereby and thereby will not, require any waiver,
consent, approval, authorization or permit of, or filing with or notification
to, any Governmental Entity or other third party, except (i) for applicable
requirements of the Securities Act, the Exchange Act, Blue Sky Laws, and the
rules and regulations of Nasdaq, (ii) for the filing of the Articles of Merger
as required by Georgia Law, and (iii) where the failure to obtain such consents,
approvals, authorizations or permits, or to make such filings or notifications,
would not prevent or delay consummation of the Merger, or otherwise prevent or
delay TCM or Merger Sub from performing its obligations under this Agreement.
SECTION 4.07 Financial Statements. TCM has heretofore furnished to the
Company complete and correct copies of (i) the unaudited consolidated balance
sheet of TCM as of June 30, 2005 and the related consolidated statements of
income and cash flows for the three months then ended (the "TCM Interim
Financial Statements"), certified by the principal financial and accounting
officer of TCM as being in accordance with GAAP, and (ii) the audited
consolidated balance sheets of the Company as of December 31, 2004 and December
31, 2003 and the related consolidated statements of income and cash flows for
three years ended December 31, 2004, accompanied by the report of TCM's
independent public accountants thereon (the "TCM Audited Financial Statements"
and, together with the TCM Interim Financial Statements, the "TCM Financial
Statements"). Each of the TCM Financial Statements (including, in each case, the
related notes thereto) was prepared in accordance with the books and records of
TCM and its subsidiaries and in accordance with GAAP applied on a consistent
basis throughout the periods involved (except as may be indicated therein or in
the notes thereto), and each fairly presents the consolidated financial position
of TCM and its subsidiaries as at the respective dates thereof and the
consolidated results of its operations and cash flows for the
32
periods indicated consistent with the books and records of TCM, except that the
TCM Interim Financial Statements are subject to normal and recurring year-end
adjustments which will not be material in amount and such TCM Interim Financial
Statements may not contain all notes required by GAAP. The books and records of
TCM are complete and correct in all material respects.
SECTION 4.08 Registration Statement. The registration statement on Form S-4
pursuant to which the TCM Common Stock to be issued in the Merger will be
registered with the SEC (including any amendment or supplement thereto) will
comply in all material respects with the Securities Act. The Form S-4 shall not,
at the Effective Time, contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which they
were made, not misleading; provided, however, that TCM makes no representation
or warranty as to any of the information supplied by or on behalf of the Company
specifically for inclusion in the Form S-4.
SECTION 4.09 Compliance, Permits.
(a) Each of TCM and its subsidiaries, and each of its and its subsidiaries'
properties and operations, are in compliance with all Laws, applicable to TCM or
any of its subsidiaries or by which any of its or any of its subsidiaries'
properties or operations is bound or affected, except where any such
non-compliance would not have a TCM Material Adverse Effect. Neither TCM nor any
of its subsidiaries has received any notice or other communication (whether
written or oral) from any Governmental Entity regarding any actual, alleged,
possible or potential violation of, or any failure to comply with, any Law,
except where any such violation or failure to comply would not have a TCM
Material Adverse Effect.
(b) Each of TCM and its subsidiaries possesses all permits, licenses,
consents, franchises, orders, approvals, certifications, registrations and
authorizations from Governmental Entities necessary to enable it to continue to
own, lease, operate and use its assets and properties and conduct its business
as presently conducted, including all permits, licenses, consents, franchises,
orders, approvals, certifications, registrations and authorizations required
under applicable Environmental Laws (collectively, the "TCM Permits"), except
where the failure to possess any of the foregoing would not have a TCM Material
Adverse Effect. All of the TCM Permits are valid and in full force and effect,
except where any such invalidity would not have a TCM Material Adverse Effect,
and there is no proceeding pending to revoke, cancel, rescind, refuse to renew
in the ordinary course or modify any of the TCM Permits. Each of TCM and its
subsidiaries is in compliance with the terms and conditions of the TCM Permits
and with all material requirements, standards and procedures of the Governmental
Entities that issued them, and with any limitation or, to the knowledge of TCM,
proposed limitation on any TCM Permit, except where such non-compliance would
not have a TCM Material Adverse Effect, and TCM has no reasonable basis to
believe that the business will not remain capable of continued operation
consistent with past practice and in compliance with the terms and conditions of
the TCM Permits following consummation of the transactions contemplated by this
Agreement.
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SECTION 4.10 Absence of Certain Changes or Events. Except as set forth in
Section 4.10 of the TCM Disclosure Letter, since December 31, 2004, each of TCM
and its subsidiaries has conducted its business in the ordinary course
consistent with past practice and there has not been: (i) any TCM Material
Adverse Effect; (ii) any damage to, destruction or loss of any material assets
of TCM or any of its subsidiaries (whether or not covered by insurance); (iii)
any declaration, setting aside or payment of any dividend or other distribution
in respect of the TCM Capital Stock or any repurchase, redemption or other
acquisition by TCM or any of its subsidiaries of any TCM Capital Stock; or (iv)
any change in accounting methods, principles or practices by TCM affecting the
consolidated assets, liabilities, results of operations or business of TCM,
except insofar as have been required by a change in GAAP.
SECTION 4.11 No Undisclosed Liabilities. At June 30, 2005, TCM and each of
its subsidiaries did not have any liabilities or obligations of any nature
(whether absolute, contingent or otherwise) other than those that would be
required to be and were reflected on a balance sheet prepared in accordance with
GAAP or for which adequate reserves are reflected in TCM's financial statements.
Since June 30, 2005, except (i) as and to the extent accrued on the June 30,
2005 balance sheet, (ii) as set forth in Section 4.11 of the TCM Disclosure
Letter, (iii) for liabilities incurred in the ordinary course of business and
otherwise not in contravention of this Agreement and (iv) where any liability,
individually or in the aggregate, would not have a TCM Material Adverse Effect,
TCM and each of its subsidiaries does not have any liabilities or obligations of
any nature (whether absolute, contingent or otherwise) other than liabilities
and obligations under this Agreement or incurred in connection with the
transactions contemplated by this Agreement.
SECTION 4.12 Litigation. Except as disclosed in Section 4.12 of the TCM
Disclosure Letter, there is no claim, suit, action or proceeding pending or, to
the knowledge of TCM, threatened against TCM or any of its subsidiaries that
individually or in the aggregate has had or could reasonably be expected to have
a TCM Material Adverse Effect, or which questions or challenges the validity of
this Agreement, the transactions contemplated by this Agreement or any action
taken or to be taken by TCM or which attempts to restrain, enjoin or prohibit
the transactions contemplated by this Agreement. Except as disclosed in the TCM
Disclosure Letter, there is no judgment, decree, injunction, rule or order of
any Governmental Entity or arbitrator outstanding against TCM or any of its
subsidiaries which individually or in the aggregate has had or could reasonably
be expected to have a TCM Material Adverse Effect.
SECTION 4.13 Employees; Labor Matters.
(a) No employee or former employee of TCM or any of its subsidiaries is
owed any wages, benefits or other compensation for past services (other than
wages, benefits and compensation accrued in the ordinary course of business
during the current pay period and accrued vacation).
(b) There are no labor disputes, including, without limitation, charges of
unfair labor practices within the meaning of the National Labor Relations Act,
pending or, to the knowledge of TCM, threatened against TCM or any of its
subsidiaries by any of its employees. Neither TCM nor any of its subsidiaries,
within the past five years, has or is knowingly engaged in any
34
unfair labor practices within the meaning of the National Labor Relations Act,
except where such actions would not have a TCM Material Adverse Effect. Neither
TCM nor any of its subsidiaries is presently a party to, or is bound by, any
collective bargaining agreement or union contract with respect to any persons
employed by TCM or any of its subsidiaries, and no collective bargaining
agreement is being negotiated by TCM or any of its subsidiaries. To the
knowledge of TCM, no organizing activities are presently being made or are
threatened by or on behalf of any labor union with respect to any employees of
TCM or any of its subsidiaries. TCM has no knowledge of any strikes, slowdowns,
work stoppages or lockouts, or threats thereof, by or with respect to any
employees of TCM or any of its subsidiaries, and there have been no such
strikes, slowdowns, work stoppages or lockouts within the past three years. Each
of TCM and its subsidiaries is in compliance with all applicable Laws relating
to employment and employment practices, workers' compensation, terms and
conditions of employment, worker safety, wages and hours and the Worker
Adjustment and Retraining Notification Act, except where such non-compliance
would not have a TCM Material Adverse Effect. There has been no harassment,
discrimination, retaliatory act or similar claim against any officer, director
or employee of TCM or any of its subsidiaries at any time during the past three
years, except where any such action would not have a TCM Material Adverse
Effect.
SECTION 4.14 Taxes.
(a) Each of TCM and its subsidiaries, and any consolidated, combined,
unitary or aggregate group for Tax purposes of which TCM or any of its
subsidiaries is a member, have timely filed all United States federal income Tax
Returns and all other Tax Returns required to be filed by them or any of them
(taking into account applicable extensions), and have timely paid and discharged
all material Taxes required to be paid (whether or not shown on such Tax
Returns), other than Taxes the payment of which is being contested in good faith
by appropriate proceedings. The most recent TCM Financial Statements reflect,
with respect to any liability for Taxes of TCM and its subsidiaries for any
years ended on or before the date of such TCM Financial Statements and either
not finally determined or with respect to which the applicable statute of
limitations has not expired, an adequate reserve to satisfy any assessment for
such Taxes for such years. All federal income Tax Returns and all other Tax
Returns filed by or with respect to each of TCM and its subsidiaries with
respect to Taxes are true and correct in all material respects. Copies of all
federal, state and foreign income Tax Returns of or with respect to TCM and its
subsidiaries for the three years preceding the Closing Date that are true,
complete and correct in all material respects have been previously provided or
made available to the Company. Neither the IRS nor any other taxing authority or
agency is now asserting or, to TCM's knowledge, threatening to assert against
TCM or any of its subsidiaries any deficiency or claim for material additional
Taxes which have not been paid. There are no requests for information from the
IRS or any other taxing authority or agency currently outstanding with respect
to Taxes of or with respect to TCM or any of its subsidiaries. There are no
pending audits of TCM or any of its subsidiaries by any taxing authority nor, to
TCM's knowledge, are any proceedings (whether administrative or judicial)
currently being conducted with respect to any issues relating to Taxes. No Tax
claim has become a lien on any assets of TCM or any of its subsidiaries. Neither
TCM nor any of its subsidiaries is required to include in income (i) any
material items in respect of any change in accounting methods or (ii) any gain
with respect to installment sales.
35
(b) (i) Neither TCM nor any of its subsidiaries has any liability for any
accumulated earnings tax or personal holding company tax; (ii) there are no
waivers or extensions of any applicable statute of limitations for the
assessment or collection of Taxes with respect to any Tax Return that relates to
TCM or any of its subsidiaries that remain in effect; (iii) there are no Tax
rulings or closing agreements relating to TCM or any of its subsidiaries that
would affect its or any of their liability for Taxes for any period after the
Effective Time; and (iv) neither TCM nor any of its subsidiaries has any
liability for Taxes of any person (other than TCM and its subsidiaries) under
Treasury Regulation Section 1.1502-6 or any similar state, local or foreign
provision.
(c) Neither TCM nor any of its subsidiaries is a party to any agreement
(written or oral), except for the Tax Sharing Agreement, providing for the
allocation or sharing of, or indemnification from, Taxes with any party other
than TCM and/or one or more of its subsidiaries.
(d) Each of TCM and its subsidiaries has withheld from each payment made to
any of its past or present employees, officers or directors, or any other
person, the amount of all material Taxes and other deductions required to be
withheld therefrom and paid the same to the proper taxing authorities within the
time required by Law.
(e) TCM is not, nor was it any time during the five-year period ending on
the date on which the Effective Time occurs, a "United States real property
holding corporation" within the meaning of Section 897(c) of the Code.
(f) Neither TCM nor any of its subsidiaries has any excess loss accounts or
deferred intercompany gain.
SECTION 4.15 Environmental Matters.
(a) All of the current and past operations of TCM, its subsidiaries and the
Assets, including any operations at or from any real property presently owned,
used, leased, occupied, managed or operated by TCM or any of its subsidiaries
(the "TCM Real Property"), comply and have at all times during TCM's ownership,
use or operation thereof complied in all material respects with all applicable
Environmental Laws. Neither TCM nor any of its subsidiaries, or, to the
knowledge of TCM, any other person, has engaged in, authorized, allowed or
suffered any operations or activities upon any of TCM Real Property for the
purpose of or in any way involving the handling, manufacture, treatment,
processing, storage, use, generation, release, discharge, emission, dumping or
disposal of any Hazardous Substances at, on or under TCM Real Property, except
in compliance with all applicable Environmental Laws.
(b) Neither the Assets nor TCM Real Property contain any Hazardous
Substances in, on, over, under or at it in concentrations which would presently
violate Environmental Laws or impose liability or obligations on the present or
former owner, manager, or operator of TCM Real Property under the Environmental
Laws for any investigation, corrective action, remediation or monitoring of
Hazardous Substances in, on, over, under or at TCM Real Property. None of TCM
Real Property is listed or proposed for listing on the National Priorities List
pursuant to
36
CERCLA, or any similar inventory of sites requiring investigation or remediation
maintained by any state. Neither TCM nor any of its subsidiaries has received
any notice, whether oral or written, from any Governmental Entity or other
person of any actual or threatened Environmental Liabilities with respect to
TCM, its subsidiaries, TCM Real Property or the Assets or the conduct of the
business of TCM or any of its subsidiaries.
(c) There are no underground storage tanks, asbestos or asbestos containing
materials, polychlorinated biphenyls, urea formaldehyde, or other Hazardous
Substances (other than small quantities of Hazardous Substances stored and
maintained in accordance and compliance with all applicable Environmental Laws
for use in the ordinary course of business of TCM and its subsidiaries) in, on,
over, under or at any presently owned, managed or operated TCM Real Property.
(d) To the knowledge of TCM, there are no conditions existing at any TCM
Real Property or with respect to the Assets, that require, or which with the
giving of notice or the passage of time or both may require remedial or
corrective action, removal or closure pursuant to the Environmental Laws.
(e) TCM has provided to the Company all material environmental reports,
assessments, audits, studies, investigations, data and other material written
environmental information in its custody, possession or control concerning TCM,
its subsidiaries, the Assets or TCM Real Property.
(f) Neither TCM nor any of its subsidiaries has contractually, or to the
knowledge of TCM, by operation of law, by the Environmental Laws, by common law
or otherwise assumed or succeeded to any Environmental Liabilities of any
predecessors or any other person.
SECTION 4.16 Brokers. No broker, finder or investment banker, other than
the TCM Financial Advisor is entitled to any brokerage, finder's or other fee or
commission in connection with the transactions contemplated by this Agreement
based upon arrangements made by or on behalf of TCM or Merger Sub. TCM has
heretofore furnished to the Company a complete and correct copy of all
agreements between TCM and the TCM Financial Advisor, pursuant to which such
firm would be entitled to any payment relating to the transactions contemplated
by this Agreement.
SECTION 4.17 Material Contracts. Section 4.17 of the TCM Disclosure Letter
contains a true, complete and correct list of each of the following contracts
(or, in the case of oral contracts, summaries thereof) to which TCM or any of
its subsidiaries is a party or by which TCM or any of its subsidiaries, or any
of TCM's or its subsidiaries' assets or properties, is bound or subject
(collectively, the "TCM Material Contracts"):
(a) any agreement or series of related agreements requiring aggregate
payments by or to the Company or any of its subsidiaries of more than $100,000;
(b) any agreement with or for the benefit of any current or former officer
or director, holder of any security, employee or consultant of TCM or any of its
subsidiaries under which
37
TCM or any of its subsidiaries has any obligations as of the date hereof and
that (i) involves an obligation of TCM or any of its subsidiaries to make
payments exceeding $100,000 in any year, (ii) contains non-competition
provisions imposing restrictions on TCM or an executive officer or key employee
of TCM, or (iii) involves any severance or termination payments or other similar
obligation;
(c) any agreement with any labor union or association representing any
employee of TCM or any of its subsidiaries;
(d) any agreement for the purchase of any materials, supplies, equipment,
merchandise or services that contains an escalation clause or that obligates TCM
or any of its subsidiaries to purchase all or substantially all of its
requirements of a particular product or service from a supplier or to make
periodic minimum purchases of a particular product or service from a supplier,
that is not terminable on not more than 30 days' notice (without penalty or
premium) and that involves future payments by TCM of more than $100,000;
(e) any agreement for the sale of any of the assets, properties or
securities of TCM or any of its subsidiaries (other than in the ordinary course
of business) or for the grant to any person of any option, right of first
refusal or preferential or similar right to purchase any such assets, properties
or securities;
(f) any agreement of surety, guarantee or indemnification, other than
agreements in the ordinary course of business with respect to obligations in an
aggregate amount not in excess of $150,000;
(g) any agreement with customers or suppliers for the sharing of fees, the
rebating of charges or other similar arrangements;
(h) any agreement relating to the acquisition by TCM or any of its
subsidiaries of any operating business or the capital stock of any other person;
(i) any agreement requiring the payment to any person of a brokerage or
sale commission or a finder's or referral fee (other than arrangements to pay
commissions or fees to employees or agents in the ordinary course of business or
as set forth in Section 4.09 of this Agreement);
(j) any agreement, note or other document relating to or evidencing
outstanding indebtedness of TCM or any of its subsidiaries for borrowed money
(including capitalized lease obligations) in excess of $100,000;
(k) any lease, sublease or other agreement under which TCM or any of its
subsidiaries is lessor or lessee of any real property or equipment or other
tangible property that involves the future payment by the Company of more than
$100,000;
(l) any agreement with a change of control provision or otherwise requiring
any consent, approval, waiver or other action by any person in connection with
the Spin-off or the Merger;
38
(m) any phantom stock plan or bonus, incentive or similar agreement,
arrangement or understanding;
(n) any agreement involving the assignment, transfer, license (whether as
licensee or licensor), pledge or Encumbrance of intellectual property of TCM or
any of its subsidiaries;
(o) any distribution or sales representative agreement or agreement
appointing any agent;
(p) any other material agreement whether or not made in the ordinary course
of business; and
(q) any agreement that would be required to be filed as an exhibit to a
periodic report if TCM was required to filed reports under the Exchange Act.
True and complete copies of all written TCM Material Contracts and true and
complete summaries of all oral TCM Material Contracts (and all amendments,
waivers or other modifications thereto) have been furnished to the Company. Each
Material Contract is valid, subsisting, in full force and effect and binding
upon TCM or any of its subsidiaries that is party thereto and, to the knowledge
of TCM, the other parties thereto in accordance with its terms. Neither TCM nor
any of its subsidiaries is in default (and no condition exists that, with notice
or lapse of time or both, would constitute a default by TCM or such subsidiary)
under any Material Contract, which default would give the other party the right
to terminate or modify such Material Contract or would accelerate any obligation
or payment by TCM, nor, to the knowledge of TCM, is any other party to any
Material Contract in default thereunder (or does any condition exist that, with
notice or lapse of time or both, would constitute a default by any such party).
None of the TCM Material Contracts is currently being renegotiated, and the
validity, effectiveness and continuation of each of the TCM Material Contracts
will not be materially adversely affected by the transactions contemplated by
this Agreement, except as otherwise listed on Section 4.17 of the TCM Disclosure
Letter. To the knowledge of TCM, no party to any of the TCM Material Contracts
has made, asserted or has any defense, setoff or counterclaim under its Material
Contract or has exercised any option granted to it to cancel, terminate or
shorten the term of its Material Contract.
SECTION 4.18 Title to Properties; Absence of Encumbrances. TCM has, or at
the Effective Time, TCM will have title to, or leasehold interests in, its
properties sufficient to operate such properties and to conduct its business in
the ordinary course, except (i) for those securing Taxes, assessments and other
governmental charges or levies not yet due and payable (excluding any imposed
pursuant to any of the provisions of ERISA), (ii) as listed in Section 4.18 of
the TCM Disclosure Letter, (iii) such imperfections in title, liens and
easements as do not materially detract from or interfere with the use of the
properties subject thereto or affected thereby or otherwise materially impair
business operations involving such properties, and (iv) Encumbrances securing
debt that is reflected in the TCM Financial Statements that individually or in
the aggregate have not had and could not reasonably be expected to have a
material adverse effect on TCM. Except as set forth in Section 4.18 of the TCM
Disclosure Letter, TCM and its subsidiaries have all patents, trademarks, trade
names, service marks, copyrights, know-how,
39
processes and all agreements and other rights necessary to carry on their
business in substantially the same manner as now conducted. The patents,
trademarks and copyrights owned or licensed by TCM are valid and enforceable and
to the knowledge of TCM do not infringe on the rights of any persons.
SECTION 4.19 Interim Operations of Merger Sub. Merger Sub was formed solely
for the purpose of engaging in the transactions contemplated by this Agreement,
has engaged in no other business activities and has conducted its operations
only as contemplated by this Agreement.
SECTION 4.20 Tax Matters. None of TCM, any of its subsidiaries or any of
their respective affiliates, directors, officers, employees or agents has taken,
or agreed or failed to take, any action that to their knowledge would prevent
the Merger from constituting a reorganization within the meaning of Section
368(a) of the Code. None of TCM, any of its subsidiaries or, to the knowledge of
TCM, any of their respective affiliates, directors, officers, employees or
agents is aware of any agreement, plan or other circumstance that would prevent
the Merger from constituting a reorganization with the meaning of Section 368(a)
of the Code.
SECTION 4.21 Employee Benefits. Each "employee benefit plan" within the
meaning of Section 3(3) of ERISA adopted and maintained by TCM as of the Closing
Date in accordance with Section 5.13 of this Agreement will, as of the Closing
Date, comply in all material respects in form and operation with the
requirements of applicable Laws and TCM will take all corporate actions
necessary to adopt such plans and comply with applicable Laws. Except as
required by applicable Laws, TCM will have no liability for any liabilities
arising under any employee benefit plan currently, formerly, or in the future
maintained by Xxxx. No such "employee benefit plan" shall be subject to Title IV
of ERISA and no such "employee benefit plan" shall provide for medical or other
welfare benefits for former employees (other than as required under Section
4980B of the Code or Part 6 of Title I of ERISA). Each such "employee benefit
plan" has received or will apply for a favorable determination letter from the
Internal Revenue Service (which may be the favorable opinion letter of the
master and prototype or volume submitter plan sponsor of such plan).
SECTION 4.22 Fairness Opinions. The special committee of the Board of
Directors of TCM and the Board of Directors of TCM have received the opinion of
Xxxxxxxx Xxxxx Xxxxxx & Xxxxx Capital, Inc. to the effect that, as of the date
of such opinion and based upon and subject to the assumptions and limitations
set forth in such opinion, the Merger Consideration to be paid to the Company's
shareholders is fair, from a financial point of view, to TCM. TCM has delivered
to the Company true, correct and complete copies of such opinion. TCM has been
authorized by Xxxxxxxx Xxxxx Xxxxxx & Xxxxx Capital, Inc. to permit the
inclusion of the such opinion (subject to prior review and consent by Xxxxxxxx
Xxxxx Xxxxxx & Xxxxx Capital, Inc.) in the Form S-4.
SECTION 4.23 No Other Representations and Warranties.
40
processes and all agreements and other rights necessary to carry on their
business in substantially the same manner as now conducted. The patents,
trademarks and copyrights owned or licensed by TCM are valid and enforceable and
to the knowledge of TCM do not infringe on the rights of any persons.
SECTION 4.19 Interim Operations of Merger Sub. Merger Sub was formed solely
for the purpose of engaging in the transactions contemplated by this Agreement,
has engaged in no other business activities and has conducted its operations
only as contemplated by this Agreement.
SECTION 4.20 Tax Matters. None of TCM, any of its subsidiaries or any of
their respective affiliates, directors, officers, employees or agents has taken,
or agreed or failed to take, any action that to their knowledge would prevent
the Merger from constituting a reorganization within the meaning of Section
368(a) of the Code. None of TCM, any of its subsidiaries or, to the knowledge of
TCM, any of their respective affiliates, directors, officers, employees or
agents is aware of any agreement, plan or other circumstance that would prevent
the Merger from constituting a reorganization with the meaning of Section 368(a)
of the Code.
SECTION 4.21 Employee Benefits. Each "employee benefit plan" within the
meaning of Section 3(3) of ERISA adopted and maintained by TCM as of the Closing
Date in accordance with Section 5.13 of this Agreement will, as of the Closing
Date, comply in all material respects in form and operation with the
requirements of applicable Laws and TCM will take all corporate actions
necessary to adopt such plans and comply with applicable Laws. Except as
required by applicable Laws, TCM will have no liability for any liabilities
arising under any employee benefit plan currently, formerly, or in the future
maintained by Xxxx. No such "employee benefit plan" shall be subject to Title IV
of ERISA and no such "employee benefit plan" shall provide for medical or other
welfare benefits for former employees (other than as required under Section
4980B of the Code or Part 6 of Title I of ERISA). Each such "employee benefit
plan" has received or will apply for a favorable determination letter from the
Internal Revenue Service (which may be the favorable opinion letter of the
master and prototype or volume submitter plan sponsor of such plan).
SECTION 4.22 Fairness Opinions. The special committee of the Board of
Directors of TCM and the Board of Directors of TCM have received the opinion of
Xxxxxxxx Xxxxx Xxxxxx & Xxxxx Capital, Inc. to the effect that, as of the date
of such opinion and based upon and subject to the assumptions and limitations
set forth in such opinion, the Merger Consideration to be paid to the Company's
shareholders is fair, from a financial point of view, to TCM. TCM has delivered
to the Company true, correct and complete copies of such opinion. TCM has been
authorized by Xxxxxxxx Xxxxx Xxxxxx & Xxxxx Capital, Inc. to permit the
inclusion of the such opinion (subject to prior review and consent by Xxxxxxxx
Xxxxx Xxxxxx & Xxxxx Capital, Inc.) in the Form S-4.
SECTION 4.23 No Other Representations and Warranties.
40
(a) Except for (i) the representations and warranties contained in Article
III and (ii) in connection with any information supplied by the Company for
inclusion in the Form S-4, TCM acknowledges that neither the Company nor any
other person makes any express or implied representation or warranty with
respect to the Company or its subsidiaries, the business of the Company and its
subsidiaries or otherwise or with respect to any other information provided to
TCM, whether on behalf of the Company or such other persons, including the
success or profitability of the ownership, use or operation of the business of
the Company and its subsidiaries after the Closing.
(b) In connection with TCM's investigation of the Assets and the business
of the Company and its subsidiaries, TCM may have received or may receive from
or on behalf of the Company or its subsidiaries certain projections or
forward-looking statements, including projected statements of operating revenues
and income from operations. TCM acknowledges that there are uncertainties
inherent in attempting to make such estimates, projections and other forecasts
and plans, that TCM is familiar with such uncertainties, that TCM is taking full
responsibility for making its own evaluation of the adequacy and accuracy of all
estimates, projections and other forecasts and plans so furnished to it, and
that TCM, in the absence of fraud, or except as provided in the next sentence,
shall have no claim against the Company or any of its subsidiaries or any other
person acting on their behalf with respect thereto whether before or after the
execution and delivery of this Agreement or the Closing Date. Accordingly,
neither the Company nor its subsidiaries make any representation or warranty
with respect to such estimates, projections, forward-looking statements and
other forecasts and plans, except that the Company and its subsidiaries had a
reasonable basis to make such estimates, projections, forward-looking statements
and other forecasts and plans. Notwithstanding the foregoing, nothing in this
Section 4.23(b) shall be construed to limit the representations and warranties
of TCM contained in Sections 4.07, 4.08, 4.10, 4.11 and 4.18.
ARTICLE V.
COVENANTS
SECTION 5.01 Conduct of Business by the Company. Except as set forth in
Section 5.01 of the Company Disclosure Letter, during the period from the date
of this Agreement and continuing until the earlier of the termination of this
Agreement pursuant to Article VII and the Effective Time, the Company covenants
and agrees that, unless TCM shall otherwise agree in writing and unless
otherwise expressly permitted hereunder, the Company and its subsidiaries shall
use their commercially reasonable efforts to conduct their respective
businesses, and the Company and its subsidiaries shall not take any action
except, in the ordinary course of business and in a manner consistent with past
practice; and the Company shall use commercially reasonable efforts to preserve
substantially intact the business organization of the Company and its
subsidiaries, to keep available the services of the present officers, employees
and consultants of the Company and its subsidiaries and to preserve satisfactory
relationships of the Company and its subsidiaries with customers, suppliers and
other persons with which the Company or any of its subsidiaries has significant
business relations. By way of amplification and not limitation, except as set
forth in Section 5.01 of the Company Disclosure Letter or except as shall be
mutually agreed in writing by the parties, during the period from the date of
this Agreement and continuing until the earlier to occur of the termination of
this Agreement
41
pursuant to Article VII and the Effective Time, the Company shall not and shall
cause its subsidiaries not to, directly or indirectly, do or propose to do any
of the following without the prior written consent of TCM (which consent shall
not be unreasonably withheld or delayed), unless otherwise expressly permitted
under this Agreement:
(a) amend or otherwise change the Company Articles of Incorporation or
Company By-Laws or any of the Company's subsidiaries' equivalent organizational
documents;
(b) issue, sell, pledge, dispose of or encumber, or authorize the issuance,
sale, pledge, disposition or encumbrance of, any shares of capital stock of any
class, or any options (including, without limitation, any Options), warrants,
convertible or exchangeable securities, or other rights of any kind to acquire
any shares of Company Capital Stock, or any other ownership interest (including,
without limitation, any phantom interest), of the Company or any of its
subsidiaries or affiliates except (A) pursuant to the terms of Options that are
outstanding as of the date of this Agreement, (B) upon conversion of the Company
Preferred Stock outstanding as of the date of this Agreement and (C) new Options
for the exercise of up to an aggregate of 150,000 shares of Company Common
Stock;
(c) sell, lease, license, pledge, dispose of or encumber any assets of the
Company or any of its subsidiaries (except (i) dispositions in the ordinary
course of business and in a manner consistent with past practice and that, in
the aggregate, are not material in amount and (ii) dispositions of obsolete or
worthless assets);
(d) (i) amend or change the period (or permit any acceleration, amendment
or change) of exercisability of any Options or (ii) authorize cash payments in
exchange for any such Options (except for Options that are subject to agreements
existing on the date hereof that provide for mandatory acceleration of vesting
as a result of the Merger and that have not been waived);
(e) (i) declare, set aside, make or pay any dividend or other distribution
(whether in cash, stock or property or any combination thereof) in respect of
any of its capital stock, except that a wholly owned subsidiary of the Company
may declare and pay a dividend to its parent, (ii) split, combine or reclassify
any of its capital stock or issue or authorize the issuance of any other
securities in respect of, in lieu of or in substitution for any shares of its
capital stock or (iii) amend the terms of, repurchase, redeem or otherwise
acquire any of its securities, or propose to do any of the foregoing;
(f) sell, transfer, license, sublicense or otherwise dispose of, or allow
any rights to lapse with respect to, any intellectual property other than in the
ordinary course of business or amend or modify any existing agreements with
respect to any intellectual property, other than in the ordinary course of
business, in each case so long as such action does not involve material
intellectual property;
(g) (i) acquire (by merger, consolidation or acquisition of stock or
assets) any corporation, partnership or other business organization or division
thereof; (ii) incur any Indebtedness for Borrowed Money or other obligation or
liability of any kind (other than accounts payable incurred in the ordinary
course of business), or issue any debt securities or
42
assume, guarantee or endorse, or otherwise as an accommodation become
responsible for, the obligations of any person, or make any loans or advances to
any person, that exceed an aggregate of $5,000,000; (iii) enter into or amend
any contract or agreement other than in the ordinary course of business; (iv)
authorize or make any capital expenditures or purchase of fixed assets that,
quarterly, exceed, $150,000 or, in the aggregate, exceed $250,000; (v) terminate
any Material Contract or amend any of its material terms (other than amendments
designed to remedy defaults thereunder); or (vi) enter into or amend any
contract, agreement, commitment or arrangement to effect any of the matters
prohibited by this Section 5.01(g);
(h) except as required by applicable Law or the terms of an agreement
existing on the date hereof, increase the compensation, bonus or other benefits
payable or to become payable to any of the Company's or its subsidiaries'
officers, directors or employees, grant any severance or termination pay or
rights to, or enter into any employment or severance agreement with, any of the
Company's or its subsidiaries' officers, directors or employees, increase any
benefits payable under existing severance or termination pay policies or
employment agreements or establish, adopt, enter into or, except as required by
law, terminate or amend, any Company Plan, except, in each case, for general
increases, grants or agreements for non-executive employees in the ordinary
course of business and in a manner consistent with past practice;
(i) take any action, other than in the ordinary course of business and in a
manner consistent with past practice as required by changes in GAAP, to change
accounting policies, principles, methods or practices (including, without
limitation, procedures with respect to reserves, revenue recognition,
capitalization of development costs, payments of accounts payable and collection
of accounts receivable);
(j) make any Tax election inconsistent with past practice or settle or
compromise any Tax liability, in excess of the amount accrued in the most recent
financial statements contained in the Company SEC Reports;
(k) (i) commence, pay, discharge, settle or satisfy any lawsuits, claims,
liabilities or obligations (absolute, accrued, asserted or unasserted,
contingent or otherwise), other than the payment, discharge or satisfaction in
the ordinary course of business and consistent with past practice of liabilities
reflected or reserved against in the most recent financial statements contained
in the Company SEC Reports or incurred in the ordinary course of business and
consistent with past practice or (ii) waive any material benefits of any
confidentiality, standstill or similar agreements to which the Company or any of
its subsidiaries is a party;
(l) permit any material increase in the number of employees employed by the
Company or any of its subsidiaries on the date hereof;
(m) terminate or fail to renew any material Company Permit;
(n) enter into any collective bargaining agreement or union contract with
any labor organization or union;
43
(o) except in the ordinary course of business and in a manner consistent
with past practice, accelerate or defer any material obligation or payment by or
to the Company; or
(p) take or fail to take, or agree in writing or otherwise to take or fail
to take, any of the actions described in Section 5.01(a) through (o) above, or
that would result in any of the conditions to the Merger set forth in this
Agreement not being satisfied.
SECTION 5.02 Form S-4; Company Stockholder Approval.
(a) Each of TCM and the Company shall cooperate and as promptly as
practicable prepare, and TCM shall file with the SEC, a registration statement
on Form S-4 (or other appropriate form) for the purpose of registering under the
Securities Act TCM Common Stock issuable in the Merger (including any amendment
or supplements thereto, the "Form S-4"). The Form S-4 shall contain a prospectus
relating to such issuance and the issuance of the TCM Common Stock in the
Spin-off and the Company Proxy Statement with respect to the Company
Stockholders' Meeting. Each of TCM and the Company shall use their respective
reasonable best efforts to have the S-4 cleared by the SEC and the Form S-4
declared effective by the SEC and to keep the Form S-4 effective as long as is
necessary to consummate the Spin-off and the Merger and any other transactions
contemplated thereby. TCM and the Company shall, as promptly as practicable
after receipt thereof, provide the other party copies of any written comments,
and advise the other party of any oral comments or communications regarding the
Form S-4 received from the SEC. TCM and the Company shall cooperate and provide
the other with a reasonable opportunity to review and comment on any amendment
or supplement to the Form S-4 prior to filing the same with the SEC, and such
parties will provide promptly each other with a copy of all such filings made
with the SEC.
(b) Each of TCM and the Company covenant that the portions of the Form S-4
concerning itself, its subsidiaries, management, financial statements, business
and the holders of its capital stock (and in the case of the Company, the
special meeting of the shareholders of the Company) shall comply in all material
respects as to form with the provisions of the Securities Act and the Exchange
Act, and the rules and regulations thereunder. Each of TCM and the Company shall
furnish all information concerning itself, its subsidiaries, management,
financial statements, business and the holders of its capital stock and shall
take all such other action as may be reasonably requested in connection with the
Form S-4. If at any time prior to the Effective Time, either party determines
that the Form S-4 contains or is informed by the other party that the
information supplied by it for inclusion in the Form S-4 contains an untrue
statement of a material fact or omits to state a material fact required to be
stated therein in order to make the statements therein in light of the
circumstances under which they were made not misleading, TCM and the Company
shall promptly prepare and TCM shall file an amendment or supplement to the Form
S-4 to correct the untrue statement or omission and take all other appropriate
action in respect thereof. Each party will advise the other party, promptly
after it receives notice thereof, of the time when the Form S-4 has become
effective, the issuance of any stop order, the suspension of the qualification
of the TCM Common Stock issuable in connection with the merger or saleable in
any jurisdiction or any request by the SEC for amendment of the Form S-4.
44
(c) The Company shall, in accordance with Georgia Law and the Company
Articles of Incorporation and Company By-Laws, hold a special meeting of the
stockholders of the Company (after having duly called and given notice of such
meeting) (the "Company Stockholders' Meeting"), as promptly as practicable after
the execution of this Agreement, to consider and vote upon the approval and
adoption of the Company Stockholder's Action. Subject to Section 5.03(c), the
Company Special Committee and the Company Board shall recommend the approval and
adoption of the Company Stockholders' Action by the stockholders of the Company
and shall include such recommendation in the Company Proxy Statement. Subject to
Section 5.03(c), the Company shall take all lawful action to solicit from the
stockholders of the Company proxies (in compliance with this Section 5.02(b)) in
favor of the approval and adoption of the Company Stockholders' Action and to
secure the vote of the stockholders of the Company required by Georgia Law and
the Company Articles of Incorporation and Company By-Laws to approve and adopt
the Company Stockholders' Action in accordance with the Company Stockholders'
Vote Condition. As promptly as practicable after the Company Proxy Statement
contained in the Form S-4 has been cleared by the SEC, the Company shall mail
the proxy statement/prospectus/information statement contained in the Form S-4
to the Company Stockholders as of the record date for the Company Stockholders'
Meeting.
(d) Each party shall advise the other parties hereto promptly of the
happening of any event which makes untrue any statement of a material fact
contained in the Form S-4 or the Company Proxy Statement, as applicable.
(e) The Company shall take all actions necessary to comply with Article 13
of Georgia Law.
SECTION 5.03 Exclusivity; Superior Proposal.
(a) From the date hereof until the earlier of the termination of this
Agreement pursuant to Article VII or the Effective Time, the Company and its
subsidiaries will not, and the Company and its subsidiaries will not permit or
cause any of their respective officers, directors, employees, investment
bankers, attorneys, affiliates, accountants and other agents (collectively, the
"Company Representatives") to, directly or indirectly: (i) initiate, solicit,
seek, encourage knowingly, entertain, support or take any action to facilitate
any inquiries or the making of any offer or proposal which constitutes or is
reasonably likely to lead to any Takeover Proposal (as defined below); (ii)
engage in negotiations or discussions with, or provide any non-public
information or data concerning the Company to, any person (other than TCM,
Merger Sub and any of their affiliates or representatives) relating to any
Takeover Proposal, whether made before or after the date of this Agreement or
(iii) subject to Section 5.03(c), enter into any letter of intent, agreement in
principle, acquisition agreement or any other agreement with respect to any
Takeover Proposal; provided, however, that the Company may, in response to an
unsolicited bona fide written Takeover Proposal by any person, provide such
non-public information or data or engage in negotiations or discussion with such
person, if, prior to taking such actions: (i) the proposal did not result from a
breach of this Section 5.03(a), (ii) the Company Special Committee determines in
good faith, after consultation with legal counsel, that the failure to take such
action is reasonably likely to result in a breach of its fiduciary duties under
applicable Law, (iii) the Company Special Committee determines in good faith
that such Takeover Proposal is
45
reasonably likely to be or result in a Superior Proposal (as defined below),
(iv) the Company receives from such person an executed confidentiality
agreement, which is substantially the same as the TCM Confidentiality Agreement,
(v) the Company has previously notified TCM of the Takeover Proposal Interest
(as defined below) in accordance with the last sentence of this Section 5.03(a),
and (vi) the Company Stockholders' Action has not been adopted and approved in
satisfaction of the Company Stockholders' Vote Condition. Subject to Section
5.03(c), nothing shall prevent the Company Board or Company Special Committee
from complying with Rule 14e-2 under the Exchange Act. The Company agrees that
it will take the necessary steps to promptly inform the Company Representatives
of the obligations undertaken in this Section 5.03. From the date hereof until
the earlier of the termination of this Agreement pursuant to Article VII and the
Effective Time, the Company shall notify TCM as promptly as practicable, and in
any event not later than the next business day, of any inquiries, expressions of
interest, requests for information or access to property, books or records,
proposals or offers relating to any Takeover Proposal received by the Company,
its officers or its directors or, to the best of its knowledge, any other
Company Representatives, from any person that informs the Company that it is
considering making, or has made, a proposal relating to a Takeover Proposal (a
"Takeover Proposal Interest") indicating, in connection with such notice, the
name of the person who made such inquiries, expressions of interest, requests,
proposals or offers and the material terms and conditions of any proposals or
offers, and thereafter shall keep TCM informed, on a current basis, of any
changes in the status and content of any such proposals or offers. The Company
will, and will cause its subsidiaries and the officers, directors, employees and
other agents of the Company and its subsidiaries to, immediately cease and cause
to be terminated all discussions and negotiations, if any, that have taken place
prior to the date of this Agreement with any parties (other than TCM and its
subsidiaries) with respect to a Takeover Proposal.
(b) As used in this Agreement, "Takeover Proposal" shall mean (i) any
proposal or offer for a merger, share exchange, consolidation or other business
combination concerning the Company or any of its subsidiaries, (ii) any proposal
or offer to the Company or any of its stockholders to acquire in any manner,
directly or indirectly, any material part of the assets or 10% or more of the
equity securities, as outstanding as of the date hereof, of the Company or any
of its subsidiaries, (iii) any proposal or offer with respect to any
recapitalization or restructuring concerning the Company or any of its
subsidiaries or (iv) any proposal or offer with respect to any other transaction
similar to any of the foregoing relating to the Company or any of its
subsidiaries. For purposes of this Agreement, "Superior Proposal" means a
Takeover Proposal that involves at least 80% of the Company Capital Stock (or,
if such Takeover Proposal involves a transfer of the assets of the Company and
its subsidiaries, taken as a whole, at least 80% of the fair market value of
such assets) which the Company Special Committee determines in good faith
(taking into account all of the terms and conditions of the Takeover Proposal,
including any conditions to consummation, break-up fees and expense
reimbursement provisions) to be more favorable and the value of which exceeds
the value of the Merger Consideration (it being agreed that the Merger
Consideration shall be deemed to include such number of shares of TCM Common
Stock as it would have included pursuant to this Agreement had the transactions
consummated by this Agreement been consummated on the date on which the Company
Special Committee evaluates such Takeover Proposal).
46
(c) From the date hereof until the termination of this Agreement pursuant
to Article VII, neither the Company Board nor any committee thereof shall (i)
withdraw, qualify or modify or propose to withdraw, qualify or modify, in a
manner adverse to TCM, its approval or recommendation of the Company
Stockholders' Action by the Company Board, (ii) approve or recommend, or propose
to approve or recommend, a Superior Proposal, or (iii) cause the Company to
enter into any letter of intent, agreement in principle, acquisition agreement
or other agreement with respect to any Superior Proposal unless (A) an
unsolicited, written Superior Proposal has been made and has not been withdrawn,
(B) the Company Special Committee has complied with its obligations in Section
5.03(a), (C) the Company Special Committee has concluded in good faith, after
consultation with legal counsel, that, in light of such Superior Proposal, the
failure of the Company Special Committee to take any of the actions described in
Section 5.03(c) (i), (ii) or (iii) is reasonably likely to result in a breach of
its fiduciary duties to the Company's stockholders under applicable Law, (D) the
Company Stockholders Action has not been adopted and approved in satisfaction of
the Company Stockholders' Vote Condition, (E) the Company Special Committee
provides TCM with at least five business days' prior notice of its proposal to
take any of the actions described in Section 5.03(c) (i), (ii) or (iii) during
which time TCM may make, and in such event the Company shall consider, a
counterproposal to such Superior Proposal, and the Company shall and shall cause
its legal advisors to, negotiate with TCM with respect to the terms and
conditions of any such counterproposal, and (F) the Superior Proposal does not
impose any "break-up" or other fees (including, without limitation, expense
reimbursements) or options or rights to acquire assets or securities, or any
other obligations that would survive the Effective Time, on the Company or any
subsidiary unless and until this Agreement is terminated in accordance with its
terms.
(d) If the Company Board or any committee (i) withdraws, qualifies or
modifies or proposes to withdraw, qualify or modify, in a manner adverse to TCM,
its approval or recommendation of the Company Stockholders' Action by the
Company Board, (ii) approves or recommends, or proposes to approve or recommend,
a Superior Proposal, or (iii) causes the Company to enter into any letter of
intent, agreement in principle, acquisition agreement or other agreement with
respect to any Superior Proposal, and in taking any such action, has complied
with Section 5.03(c), the Company shall be relieved of its obligation under this
Agreement to duly call, give notice of, convene and hold, the Company
Stockholder's Meeting to consider and vote upon the approval and adoption of the
Company Stockholders' Action.
(e) From the date hereof until the earlier of the termination of this
Agreement pursuant to Article VII or the Effective Time, TCM and its
subsidiaries will not, and TCM and its subsidiaries will not permit or cause any
of their respective officers, directors, employees, investment bankers,
attorneys, affiliates, accountants and other agents (collectively, the "TCM
Representatives") to, directly or indirectly: (i) initiate, solicit, seek,
encourage knowingly, entertain, support or take any action to facilitate any
inquiries or the making of any offer or proposal which constitutes or is
reasonably likely to lead to any TCM Takeover Proposal (as defined below); (ii)
engage in negotiations or discussions with, or provide any non-public
information or data concerning TCM to, any person (other than the Company and
any of its affiliates or representatives) relating to any TCM Takeover Proposal,
whether made before or after the date of this Agreement or (iii) enter into any
letter of intent, agreement in principle, acquisition agreement or any other
agreement with respect to any TCM Takeover Proposal;
47
provided, however, that TCM may, in response to an unsolicited bona fide written
TCM Takeover Proposal by any person, provide such non-public information or data
or engage in negotiations or discussion with such person, if, prior to taking
such actions: (i) the proposal did not result from a breach of this Section
5.03(e), (ii) the TCM Special Committee determines in good faith, after
consultation with legal counsel, that the failure to take such action is
reasonably likely to result in a breach of its fiduciary duties under applicable
Law, (iii) the TCM Special Committee determines in good faith that such Takeover
Proposal is reasonably likely to be or result in a TCM Superior Proposal (as
defined below), (iv) TCM receives from such person an executed confidentiality
agreement, which is substantially the same as the TCM Confidentiality Agreement,
and (v) TCM has previously notified the Company of the TCM Takeover Proposal
Interest (as defined below) in accordance with the last sentence of this Section
5.03(e). TCM agrees that it will take the necessary steps to promptly inform the
TCM Representatives of the obligations undertaken in this Section 5.03. From the
date hereof until the earlier of the termination of this Agreement pursuant to
Article VII and the Effective Time, TCM shall notify the Company as promptly as
practicable, and in any event not later than the next business day, of any
inquiries, expressions of interest, requests for information or access to
property, books or records, proposals or offers relating to any TCM Takeover
Proposal received by TCM, its officers or its directors or, to the best of its
knowledge, any other TCM Representatives, from any person that informs TCM that
it is considering making, or has made, a proposal relating to a TCM Takeover
Proposal (a "TCM Takeover Proposal Interest") indicating, in connection with
such notice, the name of the person who made such inquiries, expressions of
interest, requests, proposals or offers and the material terms and conditions of
any proposals or offers, and thereafter shall keep the Company informed, on a
current basis, of any changes in the status and content of any such proposals or
offers. TCM will, and will cause its subsidiaries and the officers, directors,
employees and other agents of TCM and its subsidiaries to, immediately cease and
cause to be terminated all discussions and negotiations, if any, that have taken
place prior to the date of this Agreement with any parties (other than the
Company and its subsidiaries) with respect to a TCM Takeover Proposal.
(f) As used in this Agreement, "TCM Takeover Proposal" shall mean (i) any
proposal or offer for a merger, share exchange, consolidation or other business
combination concerning TCM or any of its subsidiaries, (ii) any proposal or
offer to TCM or its stockholder to acquire in any manner, directly or
indirectly, any material part of the assets or 10% or more of the equity
securities, as outstanding as of the date hereof, of TCM or any of its
subsidiaries, (iii) any proposal or offer with respect to any recapitalization
or restructuring concerning TCM or any of its subsidiaries or (iv) any proposal
or offer with respect to any other transaction similar to any of the foregoing
relating to TCM or any of its subsidiaries. For purposes of this Agreement, "TCM
Superior Proposal" means a Takeover Proposal that involves at least 80% of the
TCM Capital Stock (or, if such Takeover Proposal involves a transfer of the
assets of the Company and its subsidiaries, taken as a whole, at least 80% of
the fair market value of such assets) which the TCM Special Committee determines
in good faith (taking into account all of the terms and conditions of the TCM
Takeover Proposal, including any conditions to consummation, break-up fees and
expense reimbursement provisions) to be more favorable and the value of which
exceeds 95% of the value of the common stock of the Surviving Corporation.
SECTION 5.04 Access to Information; Confidentiality.
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(a) Upon reasonable notice during normal business hours, each of TCM and
the Company shall (and shall cause its subsidiaries to) afford to the officers,
employees, accountants, counsel and other representatives of the other party
reasonable access, during the period from the date of this Agreement and until
the earlier of the termination of this Agreement and the Effective Time, to all
its properties, books, contracts, commitments and records, and, during such
period, each of TCM and the Company shall (and shall cause its subsidiaries to)
furnish promptly to the other party all information concerning its business,
properties and personnel as such party may reasonably request, and shall make
available to such other party the appropriate individuals (including attorneys,
accountants, other professionals, customers and suppliers) for discussion of its
business, properties and personnel as such party may reasonably request.
(b) The parties acknowledge that TCM and the Company have previously
executed the TCM Confidentiality Agreement which will continue in full force and
effect in accordance with its terms.
SECTION 5.05 Consents and Approvals.
(a) Subject to the terms of this Agreement, the Company and TCM shall each
use its commercially reasonable efforts to (i) take, or cause to be taken, all
actions, and do, or cause to be done, and to assist and cooperate with the other
parties in doing, all things necessary, proper or advisable to consummate and
make effective the transactions contemplated hereby as promptly as practicable,
(ii) obtain from any Governmental Entity or any other third party any consents,
licenses, permits, waivers, approvals, authorizations or orders required to be
obtained or made by the Company or TCM or any of their respective subsidiaries
in connection with the authorization, execution and delivery of this Agreement,
the Ancillary Agreements and the consummation of the Merger and transactions
contemplated hereby and thereby, and (iii) as promptly as practicable, make all
necessary filings, and thereafter make any other required submissions, with
respect to this Agreement and the Merger required under (A) the Securities Act
and the Exchange Act, and any other applicable U.S. federal or state securities
Laws, (B) the rules and regulations of the National Association of Securities
Dealers Automated Quotation System and (C) any other applicable Law. The Company
and TCM shall cooperate with each other in connection with the making of all
such filings.
(b) Each of the Company and TCM shall give (or shall cause their respective
subsidiaries to give) any notices to third parties, and use, and cause their
respective subsidiaries to use, their commercially reasonable efforts to obtain
any third party consents related to or required in connection with the Merger
that are (i) necessary to consummate the transactions contemplated hereby, or
(ii) required to prevent a Company Material Adverse Effect from occurring prior
to or after the Effective Time.
SECTION 5.06 Stock Options.
(a) At the Effective Time, each outstanding Option, whether vested or
unvested, shall, by virtue of this Agreement and without any further action of
the Company, the Surviving Corporation, TCM or the holder of any Option, be
converted into a stock option to purchase TCM Common Stock in a manner
consistent with Section 424 of the Code and as provided by
49
subsection (b) below, and, after the Effective Time, all references to the
Company in the Company Option Plan and the applicable stock option agreements
shall be deemed to refer to the Surviving Corporation, which shall have retained
the Company Option Plan as of the Effective Time by virtue of this Agreement and
the Merger and without any further action, except that references to shares of
Company Common Stock shall be deemed to be to TCM Common Stock in accordance
with subsection (b) below.
(b) Each Option so retained by the Surviving Corporation under this
Agreement shall continue to have, and be subject to, the same terms and
conditions set forth in the Company Option Plan and the applicable stock option
agreements as in effect immediately prior to the Effective Time, except that (i)
such Option will be exercisable for that number of shares of TCM Common Stock
equal to the product of the number of shares of Company Common Stock that were
purchasable under such Option immediately prior to the Effective Time multiplied
by the Common Stock Exchange Ratio, rounded down to the nearest whole number of
shares of TCM Common Stock and (ii) the per share exercise price for the TCM
Common Stock issuable upon exercise of such assumed Option shall be equal to the
quotient of (x) the exercise price per share of Company Common Stock at which
such Option was exercisable immediately prior to the Effective Time, divided by
(y) the Common Stock Exchange Ratio, rounding the resulting exercise price up to
the next whole cent. It is the intention of the parties that the Options
remaining outstanding following the Effective Time will qualify, to the maximum
extent permissible following the Effective Time, as incentive stock options as
defined in Section 422 of the Code solely to the extent such Options qualified
as incentive stock options prior to the Effective Time.
(c) As soon as reasonably practicable after the Effective Time, the Company
will deliver to Option holders appropriate notices setting forth such holders'
rights pursuant to the Company Option Plan and the applicable stock option
agreements evidencing the Options and confirming that the Company Option Plan
and the Options have been converted in accordance with the terms and conditions
required by this Section 5.06. TCM hereby agrees to register the TCM Common
Stock underlying such Options with the SEC on Form S-8 within ten (10) business
days subsequent to the Effective Time.
SECTION 5.07 Notification of Certain Matters.
(a) The Company shall give prompt notice to TCM of (i) the occurrence, or
non-occurrence, of any event the occurrence, or non-occurrence, of which would
be likely to cause any representation or warranty of the Company contained in
this Agreement to be untrue or inaccurate in any material respect and (ii) any
failure of the Company to materially comply with or satisfy any covenant,
condition or agreement to be complied with or satisfied by it hereunder;
provided, however, that the delivery of any notice pursuant to this Section 5.07
shall not limit or otherwise affect the remedies available hereunder to TCM or
Merger Sub.
(b) TCM shall give prompt notice to the Company of (i) the occurrence, or
non- occurrence, of any event the occurrence, or non-occurrence, of which would
be likely to cause any representation or warranty of TCM contained in this
Agreement to be untrue or inaccurate and (ii) any failure of TCM or Merger Sub
materially to comply with or satisfy any covenant,
50
condition or agreement to be complied with or satisfied by it hereunder;
provided, however, that the delivery of any notice pursuant to this Section 5.07
shall not limit or otherwise affect the remedies available hereunder to the
Company.
SECTION 5.08 Public Announcements. The initial press release with respect
to the execution of this Agreement shall be a joint press release acceptable to
TCM and the Company. Thereafter, so long as this Agreement is in effect, TCM and
the Company shall consult with each other before issuing any press release or
otherwise making any public statement with respect to the Merger or this
Agreement and shall not issue any such press release or make any such public
statement without the prior written consent of the other party, which consent
shall not be unreasonably withheld or delayed; provided, however, that TCM or
the Company may, without the prior written consent of the other party, issue
such press release or make such public statement as may upon the advice of
counsel be required by applicable Law or applicable regulation of a
self-regulatory organization if it has used all commercially reasonable efforts
to consult with the other party.
SECTION 5.09 Expenses.
(a) Except as otherwise specifically provided in this Agreement, if the
Merger is not consummated, all costs and expenses incurred in connection with
the negotiation of this Agreement and the Ancillary Agreements, the taking of
all actions (including, without limitation, any due diligence investigations)
contemplated hereby and thereby, including, without limitation, attorneys' and
accountants' fees and fees of any brokers, financial advisors, other advisors,
investment bankers or finders (collectively, the "Transaction Expenses"), shall
be paid by the party incurring such costs or expenses. If the Merger is
consummated, all Transaction Expenses of the Company, including any amounts that
may become payable due to the execution of this Agreement or the consummation of
the Merger (i.e., change of control, retention payments or similar fees) shall
be the obligation of TCM.
(b) The Company shall use its commercially reasonably efforts to cause all
persons (including, without limitation, attorneys, accountants, brokers,
financial advisors, other advisors, investment bankers and finders), who have
provided or will provide the Company with services in connection with this
Agreement, the Merger, the Ancillary Agreements and the transactions
contemplated hereby and thereby, to submit to the Company, no less than three
business days prior to the Effective Time, invoices with respect to all such
services.
SECTION 5.10 Tax Treatment. This Agreement is intended to constitute a
"plan of reorganization" within the meaning of Treasury Regulation section
1.368-2(g). Each of the parties hereto shall use commercially reasonable efforts
to cause the Merger to qualify, and shall not knowingly take actions or cause
actions to be taken that could reasonably be expected to prevent the Merger from
qualifying, as a reorganization under Section 368(a) of the Code.
SECTION 5.11 Continuing Director and Officer Indemnification.
(a) From and after the Effective Time, the Surviving Corporation (or its
successors or assigns) shall fulfill and honor the obligations of the Company
pursuant to the indemnification
51
provisions in the Company Articles of Incorporation and Company By-Laws existing
as in effect on the date of this Agreement with respect to the Company's
directors and officers, which provisions shall not be amended, repealed or
otherwise modified for a period of six years from the Effective Time in any
manner that would affect adversely the rights thereunder of persons who at any
time prior to the Effective Time were entitled to indemnification, advancement
or exculpation under the Company Articles of Incorporation and Company By-Laws
in respect of actions or omissions occurring at or prior to the Effective Time
(including, without limitation, the transactions contemplated by this
Agreement), unless such modification is required by Law and prior notification
is given to such affected persons.
(b) The Surviving Corporation shall cause to be maintained for a period of
six years from the Effective Time the Company's current directors' and officers'
insurance and indemnification policy and fiduciary liability policy ("D&O
Insurance"), provided that, the Surviving Corporation may substitute therefor,
at is election, policies or financial guarantees with the same carriers or other
reputable and financially sound carriers of at least the same coverage and
amounts containing terms and conditions which are no less advantageous that the
existing D&O Insurance, to the extent that such insurance policies provide
coverage for events occurring at or prior to the Effective Time for all persons
who are directors and officers of the Company on the date of this Agreement (or
were prior to the date of this Agreement), so long as the annual premium after
the date of this Agreement for such D&O Insurance during such six-year period
would not exceed 300% of the annual premium as of the date of this Agreement.
If, during such six-year period, such insurance coverage cannot be obtained at
all or can only be obtained for an amount in excess of 300% of the annual
premium therefor as of the date of this Agreement, the Surviving Corporation
shall use reasonable best efforts to cause insurance coverage to be obtained for
an amount equal to 300% of the current annual premium therefore, on terms and
conditions substantially similar to the existing D&O Insurance. Set forth in
Section 5.11(b) of the Company Disclosure Letter is the amount of the annual
premium currently paid by the Company for its D&O Insurance.
(c) If any claim or claims shall, subsequent to the Effective Time and
within six years thereafter, be made in writing against any present or former
director or officer of the Company based on or arising out of the services of
such person at or prior to the Effective Time in the capacity of such person as
a director or officer of the Company (and such director or officer promptly
shall have given the Surviving Corporation written notice of such claim or
claims within such six-year period), the provisions of Sections 5.11(a) and (b)
respecting the rights to indemnify the current or former directors or officers
under the Company Articles of Incorporation and Company By-Laws shall continue
in effect until the final disposition of all such claims.
(d) The provisions of this Section 5.11 are intended to be for the benefit
of, and shall be enforceable by each indemnified party, his or her heirs and
representative and may not be amended, altered or repealed without the prior
written consent of the affected indemnified party.
SECTION 5.12 Certain Tax Matters.(a) Each of the parties hereto covenants
and agrees to report the Merger for United States federal and applicable state
income tax purposes in a manner consistent with the characterization of the
Merger as a tax-free reorganization under
52
Section 368 of the Code, including causing the Surviving Corporation to file the
statements required by Treasury Regulation section 1.368-3.
(b) Prior to the Closing (or at such other times as requested by counsel),
TCM, Merger Sub and the Company shall execute and deliver to King & Spalding LLP
and Xxxxxxxx Xxxxxxx LLP, tax representation letters (which will be used in
connection with the tax opinions contemplated by Sections 6.02(f) and 6.03(d))
customary for transactions of this type.
SECTION 5.13 Employees and Employee Benefit Matters(a) . Prior to the
Spin-Off, TCM shall use its commercially reasonable efforts to take all actions
contemplated by the Separation and Distribution Agreement or otherwise deemed
necessary and appropriate to establish employee benefit plans for the benefit of
employees of TCM on and after the Closing Date.
SECTION 5.14 Listing of TCM Common Stock. TCM shall use its commercially
reasonable efforts to have authorized for listing on Nasdaq, upon official
notice of issuance, the shares of TCM Common Stock to be issued or reserved as a
result of the Merger.
SECTION 5.15 Necessary Actions. Each of the parties hereto covenants and
agrees that, at or before the Effective Time, it shall take commercially
reasonable steps so that all corporate actions, proceedings, instruments, and
documents required to carry out the transactions contemplated hereby or
incidental hereto and all other related legal matters are reasonably
satisfactory to each of the parties' counsel and shall furnish such counsel with
such certified copies of such corporate actions and proceedings and such other
instruments and documents as it shall have reasonably requested.
ARTICLE VI.
CONDITIONS TO THE MERGER
SECTION 6.01 Conditions to Obligation of Each Party to Effect the Merger.
The respective obligations of each party to effect the Merger shall be subject
to the satisfaction, or waiver, at or prior to the Effective Time of each of the
following conditions:
(a) Xxxx shall have transferred all of the membership interests of Xxxx
Publishing, LLC to TCM;
(b) Xxxx and TCM have executed and delivered the Separation and
Distribution Agreement and the Tax Sharing Agreement;
(c) Xxxx shall have completed the Spin-off;
(d) the Form S-4 shall have been declared effective by the SEC under the
Securities Act and shall not be the subject of any stop order or proceedings
seeking a stop order and all state securities or Blue Sky Laws necessary to
carry out the transactions contemplated hereby shall have been obtained and be
in effect;
53
(e) the Company Stockholders' Action shall have been approved and adopted
by the stockholders of the Company in satisfaction of the Company Stockholders'
Vote Condition at the Company Stockholders' Meeting or by written consent in
accordance with Georgia Law and the Company Articles of Incorporation;
(f) all other consents, approvals, orders or authorizations of, or
registrations, declarations or filings with, any Governmental Entity required to
consummate the Spin-off and to consummate the Merger shall have been filed, made
or obtained, except for such consents, approvals, orders or authorizations that
involve an immaterial amount of assets and that do not provide for any penalties
or fines due to the failure to receive such consents, approvals, orders or
authorizations (it being understood that the parties shall use commercially
reasonable efforts to put in place a structure in order to provide Merger Sub
and indirectly, TCM, with the benefit of such assets);
(g) all notices to, and consents, approvals or waivers of, all persons
under the agreements, instruments or documents listed in Schedule 6.01(g) shall
have been given or obtained in a form and manner reasonably acceptable to TCM
and the Company;
(h) there shall not have been any action taken, or any Law enacted,
promulgated, issued or deemed applicable to the Merger by any Governmental
Entity, that would (i) prohibit the Surviving Corporation's ownership or
operation of all or a material portion of the Company's business or assets, or
compel the Surviving Corporation or TCM to dispose of or hold separately all or
a material portion of the Company's or TCM's business or assets, as a result of
the Merger; (ii) render TCM or Merger Sub unable to consummate the Merger; or
(iii) impose or confirm material limitations on the ability of TCM or Merger Sub
effectively to exercise full rights of ownership of shares of the capital stock
of the Surviving Corporation, including without limitation, the right to vote
any such shares on all matters properly presented to the stockholders of the
Surviving Corporation;
(i) no judgment, order, injunction, decree or ruling issued by any
Governmental Entity restraining, enjoining or otherwise prohibiting the
consummation of the Merger shall have been issued and then be in effect
(provided that the parties hereto shall use their commercially reasonable
efforts to have any such judgment, order, injunction, decree or ruling vacated
or lifted), nor shall there have been any Law enacted, enforced or deemed
applicable to the Merger that makes the consummation of the Merger illegal; and
(j) the shares of TCM Common Stock to be issued or reserved that constitute
the Merger Consideration shall be approved for listing on Nasdaq, subject to
official notice of issuance.
SECTION 6.02 Additional Conditions to Obligations of TCM and Merger Sub.
The obligations of TCM and Merger Sub to effect the Merger also are subject to
the satisfaction at or prior to the Effective Time of each of the following
conditions, any of which may be waived by TCM:
54
(a) The representations and warranties of the Company set forth in this
Agreement shall be true and correct in all material respects (except for such
representations and warranties that are qualified by their terms by a reference
to materiality or to Company Material Adverse Effect, which representations and
warranties as so qualified shall be true and correct in all respects) as of the
Closing Date as though such representations and warranties were made on and as
of the Closing Date, except for those representations and warranties that
address matters only as of a particular date, which representations and
warranties shall be true and correct in all material respects (except for such
representations and warranties that are qualified by their terms by a reference
to materiality or to Company Material Adverse Effect, which representations and
warranties as so qualified shall be true and correct in all respects) only as of
such date, and TCM shall have received a certificate signed on behalf of the
Company by the Chief Executive Officer and Chief Financial Officer of the
Company to such effect;
(b) the Company shall have performed or complied in all material respects
with all agreements and covenants required by this Agreement and by each
Ancillary Agreement to be performed or complied with by it on or prior to the
Effective Time, and TCM shall have received a certificate signed on behalf of
the Company by the Chief Executive Officer and Chief Financial Officer of the
Company to such effect;
(c) Company Stockholders entitled to receive, in the aggregate, not more
than 5% of the Merger Consideration shall have demanded appraisal for their
shares in accordance with Article 13 of Georgia Law;
(d) at or prior to the Effective Time, the Existing Stockholder Agreement
shall have been terminated, and TCM shall have received evidence of such
termination reasonably satisfactory to it;
(e) all corporate actions, proceedings, instruments, and documents required
to carry out the transactions contemplated hereby or incidental hereto and all
other related legal matters shall have been reasonably satisfactory to and
approved by counsel for TCM and such counsel shall have been furnished with such
certified copies of such corporate actions and proceedings and such other
instruments and documents as it shall have reasonably requested; and
(f) TCM shall have received a legal opinion of King & Spalding LLP, dated
as of the Closing Date, and subject to the customary assumptions and
qualifications, to the effect that the Merger will qualify as a "reorganization"
under Section 368(a) of the Code;
(g) the special committee of the Board of Directors of TCM and the Board of
Directors of TCM shall have received the opinion of a nationally recognized
independent valuation firm to the effect that, as of the date of such opinion,
based upon and subject to the assumptions, factors and limitations set forth in
such opinion, assuming the Spin-off, Merger and Refinancing have been
consummated as proposed, immediately after giving effect to the Transaction and
the Refinancing, and on a pro forma basis: (A) the fair value and present
saleable value of TCM's assets would exceed TCM's stated liabilities and
identified contingent liabilities, (B) TCM should be able to pay its debts as
they become absolute and mature and (C) the capital remaining in TCM would not
be unreasonably small for the business in which TCM is engaged, as
55
management has indicated it is proposed to be conducted following the
consummation of the Spin-off, Merger and the Refinancing (the "Solvency
Opinion"); and
(h) Bull Run's Indebtedness for Borrowed Money at the Effective Time shall
not exceed $69.1 million plus any Indebtedness for Borrowed Money incurred by
Bull Run pursuant to Section 5.01(g)(ii) (it being understood and agreed that
the Cash Advance shall not be considered Indebtedness for Borrowed Money).
SECTION 6.03 Additional Conditions to Obligation of the Company. The
obligation of the Company to effect the Merger also is subject to the
satisfaction at or prior to the Effective Time of each of the following
conditions, any of which may be waived by the Company:
(a) The representations and warranties of TCM set forth in this Agreement
shall be true and correct in all material respects (except for such
representations and warranties that are qualified by their terms by a reference
to materiality or to TCM Material Adverse Effect, which representations and
warranties as so qualified shall be true and correct in all respects) as of the
Closing Date as though such representations and warranties were made on and as
of the Closing Date, except for those representations and warranties that
address matters only as of a particular date, which representations and
warranties shall be true and correct in all material respects (except for such
representations and warranties that are qualified by their terms by a reference
to materiality or to TCM Material Adverse Effect, which representations and
warranties as so qualified shall be true and correct in all respects) only as of
such date, and the Company shall have received a certificate signed on behalf of
TCM by the Chief Executive Officer and Chief Financial Officer of TCM to such
effect;
(b) each of TCM and Merger Sub shall have performed or complied in all
material respects with all agreements and covenants required by this Agreement
to be performed or complied with by it on or prior to the Closing Date, and the
Company shall have received a certificate signed on behalf of TCM by the Chief
Executive Officer and Chief Financial Officer of TCM to such effect;
(c) all corporate actions, proceedings, instruments and documents required
to carry out the transactions contemplated hereby or incidental hereto and all
other related legal matters shall have been reasonably satisfactory to and
approved by counsel for the Company Special Committee and such counsel shall
have been furnished with such certified copies of such corporate actions and
proceedings and such other instruments and documents as it shall have reasonably
requested;
(d) the Company shall have received a legal opinion of Xxxxxxxx Xxxxxxx
LLP, dated as of the Closing Date, and subject to the customary assumptions and
qualifications, to the effect that the Merger will qualify as a "reorganization"
under Section 368(a) of the Code;
(e) the Company shall have received the written opinion of the Company
Financial Advisor, in customary form and based on customary assumptions, to the
effect that the Merger Consideration to be received by the Company Stockholders
pursuant to the Merger is fair to the
56
Company Stockholders from a financial point of view, which opinion shall not
have been withdrawn;
(f) TCM and its subsidiaries shall have obtained policies of fire and
casualty, liability and other forms of insurance in such amounts, with such
deductibles and against such risks and losses as are, in TCM's reasonable
judgment, appropriate for the assets and properties of TCM and its subsidiaries
and customary in TCM's industry;
(g) TCM's Indebtedness for Borrowed Money at the Effective Time shall not
exceed $40.0 million, which shall include the amount of money that TCM is
required to distribute to Xxxx pursuant to Section 6.5 of the Separation and
Distribution Agreement; and
(h) the Company shall have received a copy of the Solvency Opinion, which
shall be in form and substance reasonably satisfactory to the Company.
SECTION 6.04 Rule 145 Affiliates. The Company shall, at least 30 days prior
to the Effective Time, cause to be delivered to TCM a list, reviewed by its
counsel, identifying all persons who are, at the Effective Time, "affiliates" of
the Company for purposes of Rule 145 promulgated by the SEC under the Securities
Act (each a "Rule 145 Affiliate"). The Company shall furnish such information
and documents as TCM may reasonably request for the purpose of reviewing such
list. The Company shall use all commercially reasonable efforts to cause each
person who is identified as a rule 145 Affiliate in the list furnished pursuant
to this Section 6.04 to execute a written agreement (each, a "Rule 145 Affiliate
Agreement"), substantially in the form attached hereto as Exhibit C, at least 15
days prior to the Effective Time.
ARTICLE VII.
TERMINATION
SECTION 7.01 Termination. This Agreement may be terminated and the Merger
may be abandoned at any time prior to the Effective Time (with respect to
Section 7.01(b) through (h), by written notice by the terminating party to the
other party):
(a) by mutual written consent duly authorized by the TCM Board, TCM Special
Committee, board of directors of Merger Sub, the Company Board and the Company
Special Committee; or
(b) by either the TCM Special Committee or the Company Special Committee,
if a Governmental Entity shall have (i) issued a non-appealable final judgment,
order, injunction, decree or ruling or taken any other action or (ii) enacted,
enforced or deemed applicable to the Merger a Law in final form, in each case
having the effect of permanently restraining, enjoining, prohibiting or making
illegal the consummation of the Merger (provided that the party seeking to
terminate pursuant to this Section 7.01(b) shall have used commercially
reasonable efforts to have any such judgment, order, injunction, decree, ruling
or other action vacated or lifted); or
(c) by the TCM Special Committee, (i) upon a breach of any representation,
warranty, covenant or agreement of the Company set forth in this Agreement such
that the conditions set forth in Section 6.02(a) or 6.02(b) would not be
satisfied (a "Company Terminating Breach"),
57
provided that, if such Company Terminating Breach is curable prior to the
expiration of 30 days from notice to the Company of its occurrence through the
exercise of the Company's commercially reasonable efforts, and for so long as
the Company continues to exercise such commercially reasonable efforts, the TCM
Special Committee may not terminate this Agreement under this Section 7.01(c)
until the expiration of such 15-day period (but in no event shall the preceding
proviso be deemed to extend the date set forth in Section 7.01(e)), or (ii) if
satisfaction of any of the conditions set forth in Section 6.02 is or becomes
impossible (other than through the failure of TCM or the Merger Sub to comply
with its obligations under this Agreement); or
(d) by the Company Special Committee, (i) upon a breach of any
representation, warranty, covenant or agreement of TCM or Merger Sub set forth
in this Agreement such that the conditions set forth in Section 6.03(a) or
6.03(b) would not be satisfied (a "TCM Terminating Breach"), provided that, if
such TCM Terminating Breach is curable prior to the expiration of 30 days from
notice to TCM of its occurrence through the exercise of TCM's commercially
reasonable efforts, and for so long as TCM continues to exercise such
commercially reasonable efforts, the Company Special Committee may not terminate
this Agreement under this Section 7.01(d) until the expiration of such 30-day
period (but in no event shall the preceding proviso be deemed to extend the date
set forth in Section 7.01(e)), or (ii) if satisfaction of any of the conditions
set forth in Section 6.03 is or becomes impossible (other than through the
failure of the Company to comply with its obligations under this Agreement); or
(e) by either the Company Special Committee or the TCM Special Committee,
if the Merger has not been consummated by the 12-month anniversary of the
execution of this Agreement (provided that the failure to consummate the Merger
by such date was not the result of any act or failure to act by the party
seeking to terminate this Agreement pursuant to this Section 7.01(e)); or
(f) by TCM, if the Company Board and the Company Special Committee shall
have failed to recommend or shall be withdrawn, or modified or changed in a
manner adverse to TCM its approval or recommendation of this Agreement or the
Merger or shall have recommended a Superior Proposal, or the Company shall have
entered into a definitive agreement in respect of a Takeover Proposal with a
Person other than TCM or its subsidiaries (or the Company Board or the Company
Special Committee resolves to do any of the foregoing); or
(g) by the Company, if the Company Board and the Company Special Committee
authorizes the Company, subject to complying with Section 5.03 of this
Agreement, to enter into a binding agreement concerning a transaction that
constitutes a Superior Proposal;
(h) by either the TCM Special Committee or the Company Special Committee,
if the Stockholder Vote Condition shall not have been satisfied by reason of the
failure to obtain the required vote at the Company Stockholders' Meeting;
(i) by either TCM or the Company, if the Separation and Distribution
Agreement is terminated; or
58
(j) by the Company, if any material amendment or modification of the
Separation and Distribution Agreement to the disadvantage of TCM had been made
or if the Separation and Distribution Agreement is breached in any material
respect.
SECTION 7.02 Effect of Termination. If this Agreement is terminated
pursuant to Section 7.01, all further obligations of the parties under this
Agreement will terminate, except that the obligations in Section 5.09 will
survive; provided, however, that if this Agreement is terminated by a party
because of the breach of this Agreement by the other party, or because one or
more of the conditions to the terminating party's obligations under this
Agreement is not satisfied as a result of the other party's failure to comply
with its obligations under this Agreement, the terminating party's right to
pursue all legal remedies will survive such termination unimpaired. Without
limiting the foregoing, if the Merger is not consummated and (x) if the Company
shall have breached any of its obligations under Section 5.03 hereof, the actual
Transaction Expenses of TCM and Merger Sub shall be paid by the Company to TCM
or (y) if TCM shall have breached any of its obligations under Section 5.03
hereof, the actual Transaction Expenses of the Company shall be paid by TCM to
the Company.
ARTICLE VIII.
GENERAL PROVISIONS
SECTION 8.01 Survival of Representations and Warranties. The
representations and warranties made by the parties in this Agreement and in any
Ancillary Agreement or in any document or agreement delivered pursuant hereto or
thereto shall not survive the Effective Time.
SECTION 8.02 Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made as of the date received if delivered personally, sent by nationally
recognized overnight courier or mailed by registered or certified mail (postage
prepaid, return receipt requested) to the parties at the following addresses (or
at such other address for a party as shall be specified by like changes of
address, which shall be effective upon receipt), or sent by electronic
transmission, with confirmation received, to the telecopy numbers specified
below:
(a) If to TCM or Merger Sub:
Triple Crown Media, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Fax No.: (000) 000-0000
Attention: Xxxxx X. Xxxx
With a copy to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: (000) 000-0000
59
Attention: Xxxxxx X. Xxxxxx, Esq.
and: Chorey, Taylor & Xxxx
0000 Xxxxxxxxx Xxxx, X.X.
Suite 0000, Xxx Xxxxx Xxxxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Fax No.: (000) 000-0000
Attention: Xxxx Xxxxxx, Esq.
If to the Company:
Bull Run Corporation
Special Committee of the Board of Directors
1251 Avenue of the Americas
Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx
With a copy to:
Xxxxxxxxxx Helpern Syracuse & Hirschtritt LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Fax No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxxx, Esq.
and: Xxxxxxxx Xxxxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Fax No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
SECTION 8.03 Waiver. The TCM Special Committee may, with respect to the
Company, and the Company Special Committee may, with respect to TCM or Merger
Sub, (a) extend the time for the performance of any of its obligations or other
acts, (b) waive any inaccuracies in its representations and warranties contained
herein or in any document delivered pursuant hereto or (c) waive compliance with
any of its agreements or conditions contained herein. Any such extension or
waiver shall be valid if set forth in an instrument in writing signed by the
party or parties to be bound thereby.
SECTION 8.04 Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
60
SECTION 8.05 Limited Liability. Notwithstanding any other provisions of
this Agreement, in the absence of fraud, no stockholder, director, officer,
affiliate, agent, representative or counsel of the Company, TCM or Merger Sub,
in its capacity as such, shall have any liability in respect of or relating to
the covenants, obligations, representations or warranties of such party under
this Agreement or in respect of any certificate delivered with respect hereto or
thereto and, to the fullest extent legally permissible, each of the Company, TCM
and Merger Sub, for itself and its stockholders, directors, officers and
affiliates, waives and agrees not to seek to assert or enforce any such
liability that any such person otherwise might have pursuant to applicable law.
SECTION 8.06 Severability. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule of Law or public
policy, all other conditions and provisions of this Agreement nevertheless shall
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the TCM Special Committee and the
Company Special Committee shall negotiate in good faith to modify this Agreement
so as to effect the original intent of the parties as closely as possible in an
acceptable manner to the end that transactions contemplated hereby are fulfilled
to the extent possible.
SECTION 8.07 Entire Agreement; Amendment. This Agreement (including any
exhibits and schedules hereto), the Company Disclosure Letter, the TCM
Disclosure Letter and the Ancillary Agreements constitute the entire agreement
among the parties hereto and supersede all prior and contemporaneous agreements
and undertakings, both written and oral, among the parties, or any of them, with
respect to the subject matter hereof. This Agreement may be amended prior to the
Company Stockholders' Action being adopted only by an instrument in writing
approved by the TCM Special Committee and the Company Special Committee and
signed by TCM, Merger Sub and the Company stating that it constitutes an
amendment to this Agreement, except that the provisions of Section 5.11 shall
not be amended except as provided therein.
SECTION 8.08 Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement may be assigned or delegated, in
whole or in part, by operation of law or otherwise by any of the parties hereto
without the prior written approval of the TCM Special Committee or the Company
Special Committee, as applicable, and any such assignment without such prior
written approval shall be null and void, except that TCM and/or Merger Sub may
assign this Agreement to any direct or indirect wholly owned subsidiary of TCM
without consent of the Company; provided that (1) TCM shall remain liable for
all of its obligations under this Agreement, including the obligation to issue
shares of TCM Common Stock as contemplated herein and (2) such assignment does
not cause the Merger to fail to be treated as a reorganization within the
meaning of Section 368(a) of the Code.
SECTION 8.09 Parties in Interest. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto and its successors, and except
as provided in Section 5.11, nothing in this Agreement, express or implied, is
intended to or shall confer upon
61
any other person any right, benefit or remedy of any nature whatsoever under or
by reason of this Agreement.
SECTION 8.10 Failure or Indulgence Not Waiver; Remedies Cumulative. No
failure or delay on the part of any party hereto in the exercise of any right
hereunder shall impair such right or be construed to be a waiver of, or
acquiescence in, any breach of any representation, warranty or agreement herein,
nor shall any single or partial exercise of any such right preclude other or
further exercise thereof or of any other right. All rights and remedies existing
under this Agreement are cumulative to, and not exclusive of, any rights or
remedies otherwise available.
SECTION 8.11 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED
AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 8.12 Counterparts. This Agreement may be executed in any number of
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
SECTION 8.13 Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL RIGHTS TO TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT,
TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 8.14 Jurisdiction; Forum. Each of the parties hereto (i) consents
to submit itself to the non-exclusive personal jurisdiction of any federal court
located in the City of New York in the event any dispute arises out of this
Agreement or any of the transactions contemplated by this Agreement and (ii)
agrees that it will not attempt to deny or defeat such personal jurisdiction by
motion or other request for leave from any such court.
SECTION 8.15 General Interpretative Provisions; Definition of Knowledge.
(a) Terms for which meanings are defined in this Agreement shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine and
feminine forms. Words such as "herein," "hereafter," "hereto," "hereby" and
"hereunder," when used with reference to this Agreement, refer to this Agreement
as a whole, unless the context otherwise requires. The words "include",
"includes," "included," "including" and "such as" shall be construed as if
followed by the phrase "without being limited to." No distinction in
interpretation shall be made between the terms "shall" and "will."
(b) As used herein, the words "knowledge" or "known" shall mean, (i) with
respect to the Company, the actual knowledge (and not constructive) of Xxxxxx X.
Xxxxxx, Xxxxxxxxx X. Xxxxxxxx and Xxxxxx X. Xxxxxxx, Xx., each in their capacity
as an officer or director of the
62
Company, (ii) with respect to TCM, the actual knowledge (and not constructive)
of Xxxxxx X. Xxxxxxx, Xx. and Xxxxx X. Xxxx, each in their capacity as an
officer or director of TCM, and in each case after any of the foregoing
individuals have made due and diligent inquiry as to the matters which are the
subject of the statements which are "known" by the Company or TCM, as
applicable, or made to the "knowledge" of the Company or TCM, as applicable.
SECTION 8.16 Specific Performance and Injunctive Relief. The parties hereto
agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached or threatened to be breached. It is
accordingly agreed that the parties shall be entitled to seek a preliminary and
permanent injunction or injunctions to prevent breaches, or threatened breaches,
of this Agreement and to enforce specifically the terms and provisions hereof in
any court of the United States or any state having jurisdiction, without the
need to post bond or furnish other security, this being in addition to any other
remedy to which they are entitled at law or in equity.
SECTION 8.17 Attorneys' Fees. If any action, suit, arbitration or other
proceeding for the enforcement of this Agreement is brought, or because of an
alleged dispute, breach, default or misrepresentation in connection with any of
the provisions hereof, or otherwise relating to or in connection with this
Agreement, the successful or prevailing party shall be entitled to recover
reasonable attorneys' fees and other costs incurred in that action, suit,
arbitration or other proceeding, in addition to any other relief to which it may
be entitled.
SECTION 8.18 Limitation of Liability
(a) Except with respect to liability under the Securities Act and the
Exchange Act and in the absence of fraud, TCM and the Company agree that neither
the other party nor any other person will have, or be subject to, any liability
for, or indemnification obligation to, the other party or any other person, to
the extent that such liability or indemnification obligation results from the
distribution to, as applicable, TCM or the Company, or TCM's or the Company's
use of, any information related to the business of the other party and its
subsidiaries and any other information, document or material made available to
TCM or the Company, as applicable, in certain "data rooms," management
presentations or any other form in connection with the transactions contemplated
by this Agreement and the Ancillary Agreements.
[Signature page follows.]
63
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed as of the date first written above by a duly authorized officer or
other person.
TRIPLE CROWN MEDIA, INC.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: President and Chief Executive
Officer
BR ACQUISITION CORP.
By: /s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx X. Xxxx
Title: Treasurer and Secretary
BULL RUN CORPORATION
By: /s/ Xxxxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
Title: Vice President -- Finance
64
SCHEDULE 2.05
DIRECTORS
X. Xxxx Xxxxxxxx
Xxxxxx X. Xxxxxxx, Xx.
Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxxx
Xxxxx X. Xxxxx
Xxxxxx X. Xxxxxx, Xx.
Xxxxx X. Xxxxxxx
OFFICERS
Xxxxxx X. Xxxxxxx, Xx. - Chairman
Xxxxxx X. Xxxxxx - President and Chief Executive Officer
Xxxxxxxxx X. Xxxxxxxx - Chief Financial Officer
SCHEDULE 6.01(G)
Wachovia Bank, pursuant to the Third Amended and Restated Credit Agreement
Quest International Users Group, Inc., pursuant to its Amended and Restated
Management Agreement with Host Communications, Inc.
License Agreement dated as of May 9, 2005 by and between NEWSTEC, Inc. and Xxxx
Publishing, LLC.
Application for Service, Letter of Agency, and Agreement Choice One/US Xchange
dated March 28, 2003.
Exhibit A
================================================================================
SEPARATION AND DISTRIBUTION AGREEMENT
BY AND BETWEEN
XXXX TELEVISION, INC.
AND
TRIPLE CROWN MEDIA, INC.
AUGUST 2, 2005
================================================================================
TABLE OF CONTENTS
PAGE
----
SECTION 1 SEPARATION..................................................... 3
1.1. Transfer of Membership Interests and Assets...................... 3
1.2. Retained Assets.................................................. 3
1.3. Assumed Liabilities.............................................. 3
1.4. Termination of Existing Intercompany Agreements.................. 4
SECTION 2 SEPARATION CLOSING MATTERS..................................... 4
2.1. Separation Date.................................................. 4
2.2. Closing of Transactions.......................................... 4
2.3. Documents to be Delivered by Xxxx................................ 4
2.4. Documents to be Delivered by TCM................................. 5
2.5. Approvals and Required Consents.................................. 5
SECTION 3 THE DISTRIBUTION............................................... 5
3.1. Share Distribution............................................... 5
3.2. Actions Prior to the Distribution................................ 6
3.3. Conditions to Distribution....................................... 7
3.4. Modification..................................................... 10
SECTION 4 EMPLOYEES AND EMPLOYEE BENEFIT MATTERS......................... 10
4.1. Employees........................................................ 10
4.2. Prior Service Credit............................................. 11
4.3. 401(k) Plan...................................................... 11
4.4. Pension Plan..................................................... 11
4.5. Welfare Plans.................................................... 11
4.6. Section 125 Plan................................................. 12
4.7. Accrued Vacation................................................. 12
4.8. Stock Option Plan................................................ 12
4.9. Workers' Compensation............................................ 12
4.10. WARN Act......................................................... 13
4.11. Information to be Provided....................................... 13
4.12. No Right to Employment........................................... 13
SECTION 5 INSURANCE MATTERS.............................................. 13
5.1. Insurance Prior to the Distribution Date......................... 13
5.2. Ownership of Existing Policies and Programs...................... 13
5.3. Naming of TCM as Additional Insured.............................. 14
5.4. TCM Insurance Policies........................................... 14
5.5. TCM Directors' and Officers' Insurance........................... 14
5.6. Post-Distribution Insurance Claims Administration................ 15
5.7. Non-Waiver of Rights to Coverage................................. 15
5.8. Scope of Affected Policies of Insurance.......................... 15
SECTION 6 CERTAIN COVENANTS.............................................. 16
6.1. Further Instruments; Consents.................................... 16
6.2. Exchange of Information.......................................... 16
6.3. Privileged Matters............................................... 18
6.4. Certain Business Matters......................................... 19
i
6.5. Payment Obligations.............................................. 19
6.6. Reimbursement Obligations........................................ 19
SECTION 7 INDEMNIFICATION................................................ 19
7.1. Indemnification by Xxxx.......................................... 19
7.2. Indemnification by TCM........................................... 19
7.3. Procedure for Indemnification.................................... 19
7.4. Direct Claims.................................................... 21
7.5. Adjustment of Indemnifiable Losses............................... 21
7.6. No Third Party Beneficiaries..................................... 22
SECTION 8 DISPUTE RESOLUTION............................................. 22
8.1. General.......................................................... 22
8.2. Negotiation...................................................... 22
8.3. Non-Binding Mediation............................................ 22
8.4. Proceedings...................................................... 22
8.5. Pay and Dispute.................................................. 23
SECTION 9 MISCELLANEOUS.................................................. 23
9.1. Representations and Warranties of Xxxx........................... 23
9.2. LIMITATION OF LIABILITY.......................................... 23
9.3. Survival......................................................... 24
9.4. Expenses......................................................... 24
9.5. Entire Agreement................................................. 24
9.6. Amendment........................................................ 24
9.7. No Third-Party Beneficiaries..................................... 24
9.8. Governing Law.................................................... 24
9.9. Termination...................................................... 24
9.10. Notices.......................................................... 24
9.11. Counterparts..................................................... 25
9.12. Binding Effect and Assignment.................................... 25
9.13. Severability..................................................... 25
9.14. Failure and Remedies............................................. 25
9.15. Authority........................................................ 25
9.16. Interpretation................................................... 25
9.17. Conflicting Agreements........................................... 25
9.18. Definitions...................................................... 25
EXHIBITS
Exhibit A - Certificate of the Secretary of Xxxx
Exhibit B - Assignment and Assumption Agreement
Exhibit C - Tax Sharing Agreement
Exhibit D - Real Property Lease
Exhibit E - Contribution Agreement
Exhibit F - Certificate of the Secretary of TCM
ii
SEPARATION AND DISTRIBUTION AGREEMENT
This Separation and Distribution Agreement (this "Agreement") is
entered into as of August 2, 2005, by and between Xxxx Television, Inc., a
Georgia corporation ("Xxxx"), and Triple Crown Media, Inc., a Delaware
corporation ("TCM"). Capitalized terms used in this Agreement and not otherwise
defined shall have the meanings ascribed to such terms in Section 9.18.
RECITALS
X. Xxxx owns all of the membership interests of Xxxx Publishing, LLC,
a Delaware limited liability company ("Xxxx Publishing").
X. Xxxx through Xxxx Publishing operates six regional publications
comprising five daily newspapers and an advertising shopper (the "Newspaper
Publishing Business").
X. Xxxx Publishing owns all of the membership interests of Graylink,
LLC, a Delaware limited liability company ("Graylink").
D. Graylink is a provider of wireless services, primarily paging
services, in non-major metropolitan areas in Alabama, Florida, and Georgia and
also owns and operates 14 retail locations in Alabama, Florida and Georgia (the
"Graylink Wireless Business").
E. The Board of Directors of Xxxx has determined that it would be
advisable and in the best interests of Xxxx and its shareholders for Xxxx to
transfer to TCM all of the membership interests of Xxxx Publishing.
X. Xxxx has agreed to convey, assign and transfer to TCM all of the
membership interests of Xxxx Publishing (collectively, the "Separation").
G. The Board of Directors of Xxxx has determined that it would be
advisable and in the best interests of Xxxx and its shareholders for Xxxx to
distribute on a pro-rata basis to the holders of record of Xxxx Class A common
stock, no par value ("Xxxx Class A Common Stock"), and Xxxx common stock, no par
value ("Xxxx Common Stock" and with the Xxxx Class A Common Stock, the "Xxxx
Stock"), without any consideration being paid by such holders, all of the
outstanding shares of TCM common stock, par value $.001 per share (the "TCM
Common Stock") owned by Xxxx (the "Distribution"), and this Agreement has been
approved by the Board of Directors of Xxxx.
H. In reaching its decision to approve the Separation and
Distribution, the Board of Directors of Xxxx considered a variety of factors
including the following:
- as a result of the Separation and Distribution, Xxxx and TCM will
be better able to focus financial and operational resources on
its own business and executing its own strategic plan;
1
- as a result of the Separation and Distribution, Xxxx and TCM are
expected to have greater strategic and financial flexibility to
support future growth opportunities;
- each business is in a different stage of development and
therefore attracts different types of investors;
- two separate public companies will enable financial markets to
evaluate Xxxx and TCM more effectively, which is expected to
maximize shareholder value over the long term for both Xxxx and
TCM;
- the Separation and Distribution will allow Xxxx and TCM to
develop incentive programs for management and other professionals
that are tailored to its own business and are tied to the market
performance of its own common stock;
- after the Separation and Distribution, Xxxx and TCM should have
greater capital planning flexibility and the Newspaper Publishing
Business and Graylink Wireless Business will no longer have to
compete with Xxxx'x television broadcasting business to secure
funding for investments; and
- that TCM would possess sufficient scale and business fundamentals
to operate as a stand-alone entity.
I. This Agreement and the Separation and Distribution have been
approved by the special committee of the Board of Directors of TCM.
J. This Agreement and the Separation and Distribution have been
approved by the Board of Directors of TCM, consistent with the approval and
recommendation of the special committee of the Board of Directors of TCM.
K. For U.S. federal income tax purposes, the Separation and
Distribution are intended to qualify as a divisive reorganization described in
Sections 355 and 368(a)(1)(D) of the Code.
L. The Board of Directors has determined that conversion price
relating to the Series C preferred stock of Xxxx should be adjusted upon the
consummation of the Distribution.
M. The parties desire to set forth the principal corporate
transactions required to effect the Separation and the Distribution and certain
other agreements that will govern the relationship of Xxxx and TCM following the
Distribution.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth below, the parties agree as follows:
2
SECTION 1
SEPARATION
1.1. Transfer of Membership Interests and Assets. Subject to the terms
and conditions of this Agreement, on the Separation Date, Xxxx shall convey,
assign and transfer to TCM, and TCM shall accept and receive, all right, title,
and interest of Xxxx in and to the following:
(a) all of the membership interests of Xxxx Publishing;
(b) all of the contracts, agreements and arrangements listed on
Schedule 1.1(b) (collectively, the "Assigned Contracts"); and
(c) all right, title and interest in or to the improved and
unimproved land listed or described on Schedule 1.1(c), and all buildings,
structures, erections, improvements, appurtenances, and fixtures situated on or
forming part of such land, together with all privileges, easements and
rights-of-way related thereto (the "Assigned Real Property").
1.2. Retained Assets. Immediately prior to the Separation Date, Xxxx
shall cause Xxxx Publishing to convey, assign, transfer, contribute, and set
over, or cause to be conveyed, assigned, transferred, contributed, and set over
to Xxxx the following assets (the "Retained Assets"), and Xxxx shall assume the
Retained Assets:
(a) Cash. All cash and cash equivalents.
(b) Tax Refunds. Any right, title, or interest in any tax refund,
credit, or benefit to which Xxxx or any of its Subsidiaries is entitled in
accordance with the terms of this Agreement or of the Tax Sharing Agreement.
(c) Intercompany Assets. Any right, title, or interest in the
intercompany assets set forth on Schedule 1.2(c).
(d) Contracts. Xxxx Publishing's or any of its subsidiaries'
rights under any agreement, commitment or order as to which consent to
assignment is required but has not been obtained, subject to the provisions of
Section 6.1(b);
1.3. Assumed Liabilities.
(a) Immediately prior to the Separation Date, Xxxx shall cause
Xxxx Publishing, to convey, assign, transfer, contribute, and set over, or cause
to be conveyed, assigned, transferred, contributed, and set over to Xxxx the
following liabilities (the "Assumed Liabilities"), and Xxxx shall assume the
Assumed Liabilities:
(i) Taxes. Any liability or obligation of Xxxx Publishing or
Graylink, as applicable to pay taxes, as set forth in the Tax Sharing Agreement.
3
(ii) Intercompany Debt. Any liability or obligation of Xxxx
Publishing or Graylink, as applicable, in respect of the intercompany debt set
forth on Schedule 1.2(c).
(b) Subject to the terms and conditions of this Agreement, TCM
shall assume, on the Separation Date, and pay, comply with, and discharge all
contractual and other liabilities of Xxxx arising out of or relating to the
Assigned Contracts and Assigned Real Property (all of such liabilities being
hereinafter referred to as the "TCM Assumed Liabilities").
1.4. Termination of Existing Intercompany Agreements. Except as
otherwise contemplated by this Agreement, all agreements between Xxxx or its
Subsidiaries on one hand and Xxxx Publishing or its subsidiaries on the other
hand relating primarily to the Newspaper Publishing Business and Graylink
Wireless Business, whether or not in writing and whether or not binding, in
effect immediately prior to the Distribution Date, shall be terminated and be of
no further force and effect from and after the Distribution Date.
SECTION 2
SEPARATION CLOSING MATTERS
2.1. Separation Date. The effective time and date of the conveyance,
assignment, and transfer of the membership interests of Xxxx Publishing in
connection with the Separation shall be such date and time as shall be fixed by
the Board of Directors of Xxxx (the "Separation Date").
2.2. Closing of Transactions. The closing of the transactions
contemplated by this Agreement shall take place at the offices of Proskauer Rose
LLP, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
2.3. Documents to be Delivered by Xxxx. On the Separation Date, Xxxx
will deliver, or will cause its appropriate Subsidiaries to deliver, to TCM all
of the following items and agreements (collectively, together with all
agreements and documents contemplated by such agreements, the "Ancillary
Agreements"):
(a) Secretary's Certificate. A certificate executed by the
Secretary of Xxxx substantially in the form attached to this Agreement as
Exhibit A;
(b) Assignment and Assumption Agreement. A duly executed
Assignment and Assumption Agreement substantially in the form attached hereto as
Exhibit B (the "Assignment and Assumption Agreement");
(c) Tax Sharing Agreement. A duly executed Tax Sharing Agreement
substantially in the form attached hereto as Exhibit C (the "Tax Sharing
Agreement");
(d) Real Property Lease. A duly executed Real Property lease
Agreement substantially in the form attached hereto as Exhibit D (the "Real
Property Lease");
4
(e) Contribution Agreement. A duly executed contribution
Agreement substantially in the form attached to this Agreement as Exhibit E (the
"Contribution Agreement");
(f) Officer Resignations. Resignations of each person who is an
officer of Xxxx Publishing, Graylink or any of their respective subsidiaries,
immediately prior to the Separation Date, and who will not be an employee of TCM
from and after the Separation Date; and
(g) Other Agreements. Such other agreements, documents, or
instruments as the parties may agree are necessary or desirable in order to
achieve the purposes hereof, including, without limitation, those documents
referred to in Section 6.1.
2.4. Documents to be Delivered by TCM. On the Separation Date, TCM
will deliver, or will cause its appropriate Subsidiaries to deliver, to Xxxx all
of the following items and agreements:
(a) Secretary's Certificate. A certificate executed by the
Secretary of TCM substantially in the form attached to this Agreement as Exhibit
F;
(b) Assignment and Assumption Agreement. A duly executed
Assignment and Assumption Agreement;
(c) Tax Sharing Agreement. A duly executed Tax Sharing Agreement;
(d) Real Property Lease. A duly executed Real Property Lease;
(e) Contribution Agreement. A duly executed Contribution
Agreement; and
(f) Other Agreements. Such other agreements, documents, or
instruments as the parties may agree are necessary or desirable in order to
achieve the purposes hereof, including, without limitation, those documents
referred to in Section 6.1.
2.5. Approvals and Required Consents. To the extent that the
Separation requires any Governmental Approvals or other consents, the parties
will use their commercially reasonable efforts to obtain any such Governmental
Approvals or consents.
SECTION 3
THE DISTRIBUTION
3.1. Share Distribution.
(a) Delivery of Shares for Distribution. Prior to the
Distribution Date, Xxxx shall deliver to TCM the certificate for 100 shares of
TCM Common Stock held by Xxxx and representing all of the outstanding TCM Common
Stock, and TCM shall cancel such certificate and issue and deliver to Xxxx in
exchange therefor an omnibus stock certificate
5
representing that number of shares of TCM Common Stock equal to the total number
of shares distributable pursuant to Section 3.1(b). Xxxx shall then deliver such
omnibus certificate to the Distribution Agent.
(b) Distribution of Shares. Xxxx shall instruct the Distribution
Agent to distribute, beginning on the Distribution Date, to holders of Xxxx
Stock on the Record Date, the number of shares of TCM Common Stock equal to the
number of shares of Xxxx Stock owned by such holder on the Distribution Date,
multiplied by 0.10, and as soon thereafter as reasonably practicable, cash, if
applicable, in lieu of fractional shares of TCM Common Stock obtained in the
manner provided in Section 3.1(c) hereof. TCM agrees to provide to the
Distribution Agent sufficient certificates in such denominations as the
Distribution Agent may request in order to effect the Distribution. All of the
shares of TCM Common Stock issued in the Distribution shall be fully paid,
nonassessable, and free of preemptive rights. Xxxx shareholders shall not be
required to pay cash or other consideration for the TCM Common Stock received in
the Distribution.
(c) Fractional Shares. No certificate or scrip representing
fractional shares of TCM Common Stock shall be issued as part of the
Distribution. In lieu of receiving fractional shares, each holder of Xxxx Stock
who would otherwise be entitled to receive a fractional share of TCM Common
Stock pursuant to the Distribution will receive cash for such fractional share.
Xxxx shall instruct the Distribution Agent to determine the number of whole
shares and fractional shares of TCM Common Stock allocable to each holder of
record or beneficial owner of Xxxx Stock on the Distribution Date, to aggregate
all such fractional shares into whole shares, to sell the whole shares obtained
thereby in the open market at then prevailing prices on behalf of holders of
record or beneficial owners who otherwise would be entitled to receive
fractional shares of TCM Common Stock, and to distribute to each such holder or
for the benefit of each such beneficial owner such holder's or owner's ratable
share of the total proceeds (net of total selling expenses) of such sale;
provided, however, that the Distribution Agent shall have sole discretion to
determine when, how, through which broker-dealer, and at what price to make its
sales; provided, further, that the broker-dealer shall not be an affiliate of
Xxxx or TCM.
(d) Obligation to Provide Information. Xxxx and TCM, as the case
may be, will provide to the Distribution Agent all share certificates and any
information required in order to complete the Distribution on the basis
specified in Section 3.1.
3.2. Actions Prior to the Distribution. On or before the Distribution
Date, Xxxx and TCM shall use their commercially reasonable efforts to do and
accomplish the following:
(a) SEC Filings. Xxxx and TCM shall prepare, and Xxxx shall mail,
prior to the Distribution Date, to the holders of Xxxx Common Stock, a proxy
statement/prospectus/information statement containing such information
concerning TCM, the Newspaper Publishing Business and Graylink Wireless Business
and the Separation and the Distribution and such other matters as Xxxx and TCM
shall reasonably determine are necessary and as may be required by law. Xxxx and
TCM shall prepare, and TCM shall file with the Securities and Exchange
Commission (the "SEC") a registration statement on Form S-4 to register the
shares of TCM Common Stock to be issued in the Distribution under the Securities
6
Act. Xxxx and TCM shall use all commercially reasonable efforts to respond to
any comments of the SEC and to cause such registration statement to be declared
effective under the Securities Act as promptly as practicable after such
registration statement is filed with the SEC. TCM shall prepare and file with
the SEC a registration statement on Form 8-A to register the shares of TCM
Common Stock under the Exchange Act.
(b) Blue Sky. Xxxx and TCM shall take and shall cause any of
their Subsidiaries to take all such actions as may be necessary or appropriate
under the securities or blue sky laws of any applicable states in connection
with the Distribution.
(c) Nasdaq National Market. TCM shall prepare and file, and shall
use its commercially reasonable efforts to have approved, an application for
listing of the TCM Common Stock to be issued in the Distribution on the Nasdaq
National Market, subject to official notice of issuance.
(d) Advisors. Xxxx and TCM shall participate in the preparation
of materials and presentations as their respective advisors shall deem necessary
or desirable.
(e) Satisfaction of Conditions. Xxxx and TCM shall take and shall
cause all of their respective Subsidiaries to take all reasonable steps
necessary and appropriate to cause the conditions set forth in Section 3.3 to be
satisfied and to effect the Distribution on the Distribution Date.
(f) Termination of Letter Agreement. Xxxx and TCM shall use their
commercially reasonable efforts to cause the Letter Agreement, dated July 20,
2004, by and between Xxxx Television, Inc. and Xxxxxx Xxxxxx to be terminated.
3.3. Conditions to Distribution. The following are conditions to the
consummation of the Distribution. The conditions are for the sole benefit of
Xxxx and can be waived by Xxxx, but shall not give rise to or create any duty on
the part of Xxxx or the Board of Directors of Xxxx to waive or not waive any
such condition or in any way limit Xxxx'x right to terminate this Agreement.
(a) Filing and Effectiveness of Registration Statement; No Stop
Order. A registration statement on Form S-4 and Form 8-A covering the TCM Common
Stock to be issued in the Distribution shall have been filed with the SEC and
shall be effective, and no stop order suspending the effectiveness of such
registration statements shall have been initiated or, to the knowledge of either
TCM or Xxxx, threatened by the SEC.
(b) Dissemination of Information to Xxxx Shareholders. Prior to
the Distribution Date, the parties shall have prepared, and Xxxx shall have
mailed to the holders of Xxxx Stock a proxy statement/prospectus/information
statement containing such information concerning TCM, the Newspaper Publishing
Business and Graylink Wireless Business and, the Separation and the
Distribution, and such other matters as Xxxx and TCM shall reasonably determine
are necessary and as may be required by law.
7
(c) Nasdaq National Market. The shares of TCM Common Stock to be
issued in the Distribution shall have been authorized for listing on the Nasdaq
National Market, upon official notice of issuance.
(d) Compliance with State and Foreign Securities and Blue Sky
Laws. Xxxx and TCM shall have taken all such action as may be necessary or
appropriate under state and foreign securities and blue sky laws in connection
with the Distribution.
(e) Consents.
(i) Governmental Approvals. Any material governmental
approvals and consents required to permit the valid consummation of the
Distribution shall have been obtained without any conditions being imposed that
would have a Material Adverse Effect on Xxxx or TCM.
(ii) Consents. Xxxx shall have obtained the consent,
approval, or waiver of each Person set forth on Schedule 3.3(e)(ii).
(f) No Actions. No Actions shall have been instituted or
threatened by or before any Governmental Authority to restrain, enjoin, or
otherwise prevent the Distribution or the other transactions contemplated by
this Agreement, and no order, injunction, judgment, ruling, or decree issued by
any Governmental Authority of competent jurisdiction shall be in effect
restraining the Distribution or such other transactions.
(g) Tax Opinion regarding the Separation and Distribution. Xxxx
and Bull Run shall have received an opinion of King & Spalding LLP, special tax
counsel to Xxxx, to the effect that the Separation and Distribution will qualify
as a divisive reorganization described in Sections 368(a)(1)(D) and 355 of the
Code.
(h) Consummation of Separation. The Separation transactions
contemplated by this Agreement shall have been consummated in all material
respects.
(i) Approval by the Special Committee of the Board of Directors
of Xxxx of the Merger Agreement and the Merger. The Merger Agreement and the
Merger shall have been approved by the special committee of the Board of
Directors of Xxxx in accordance with applicable law and the articles of
incorporation and bylaws of Xxxx.
(j) Approval by the Board of Directors of Xxxx of the Merger
Agreement and the Merger. The Merger Agreement and the Merger shall have been
approved by the Board of Directors of Xxxx, consistent with the approval and
recommendation of the special committee of the Board of Directors of Xxxx, and
in accordance with applicable law and the articles of incorporation and bylaws
of Xxxx.
(k) Approval by the Special Committee of the Board of Directors
of TCM of the Merger Agreement and the Merger. The Merger Agreement and the
Merger shall have been approved by the special committee of the Board of
Directors of TCM in accordance with applicable law and the certificate of
incorporation and bylaws of TCM.
8
(l) Approval by the Board of Directors of TCM of the Merger
Agreement and the Merger. The Merger Agreement and the Merger shall have been
approved by the Board of Directors of TCM, consistent with the approval and
recommendation of the special committee of the Board of Directors of TCM, and in
accordance with applicable law and the certificate of incorporation and bylaws
of TCM.
(m) Approval by the Special Committee of the Board of Directors
of Bull Run of the Merger Agreement and the Merger. The Merger Agreement and the
Merger shall have been approved by the special committee of the Board of
Directors of Bull Run in accordance with applicable law and the articles of
incorporation and bylaws of Bull Run.
(n) Approval by the Board of Directors of Bull Run of the Merger
Agreement and the Merger. The Merger Agreement and the Merger shall have been
approved by the Board of Directors of Bull Run, consistent with the approval and
recommendation of the special committee of the Board of Directors of Bull Run,
and in accordance with applicable law and the articles of incorporation and
bylaws of Bull Run.
(o) Approval by the Shareholders of Bull Run of the Merger
Agreement and the Merger. The shareholders of Bull Run shall have approved the
Merger Agreement and the Merger in accordance with applicable law and the
articles of incorporation and bylaws of Bull Run.
(p) Opinion of Financial Advisor to the Special Committee of the
Board of Directors of TCM. Each of the Boards of Directors of Xxxx and TCM and
the special committees of the Boards of Directors of Xxxx and TCM shall have
received the opinion of Xxxxxxxx Xxxxx Xxxxxx & Xxxxx Capital, Inc., the
financial advisor of the special committee of the Board of Directors of TCM, to
the effect that as of the date of such opinion, based upon and subject to the
assumptions and limitations set forth in such opinion, (A) the Distribution is
fair, from a financial point of view, to the holders (other than J. Xxxx
Xxxxxxxx or any of his affiliates) of the Xxxx Class A Common Stock and the Xxxx
Common Stock that receive TCM Common Stock in the Distribution, (B) the
allocation of the consideration in the Distribution between the Xxxx Common
Stock and the Xxxx Class A Common Stock is fair, from a financial point of view,
to the holders (other than J. Xxxx Xxxxxxxx or any of his affiliates) of each
such class of common stock and (C) the consideration to be paid to the
shareholders of Bull Run in the Merger is fair, from a financial point of view,
to TCM.
(q) Opinion of a Nationally Recognized Independent Valuation
Firm. Each of the Boards of Directors of Xxxx and TCM and the special committee
of the Boards of Directors of Xxxx and TCM shall have received the opinion of a
nationally recognized independent valuation firm that, as of the date of such
opinion, based upon and subject to the assumptions, factors and limitations set
forth in such opinion, assuming the Transaction and Refinancing have been
consummated as proposed, immediately after giving effect to the Transaction and
the Refinancing, and on a pro forma basis: (A) the fair value and present
saleable value of TCM's assets would exceed TCM's stated liabilities and
identified contingent liabilities, (B) TCM should be able to pay its debts as
they become absolute and mature and (C) the capital remaining in TCM would not
be unreasonably small for the business in which TCM
9
is engaged, as management has indicated it is proposed to be conducted following
the consummation of the Transaction and the Refinancing.
(r) Opinion of Financial Advisor to the Special Committee of the
Board of Directors of Bull Run. The Board of Directors of Bull Run and the
special committee of the Board of Directors of Bull Run shall have received the
written opinion of SunTrust Xxxxxxxx Xxxxxxxx that, as of the date of such
opinion and based upon and subject to certain matters stated therein, the
exchange ratio to be received by the common stockholders (other than J. Xxxx
Xxxxxxxx, the majority stockholder, and other affiliated stockholders) of Bull
Run is fair, from a financial point of view, to such holders.
(s) Tax Opinion rendered to TCM regarding the Merger. TCM shall
have received an opinion of King & Spalding LLP, special tax counsel to TCM, to
the effect that the Merger will qualify as a reorganization under Section 368(a)
of the Code.
(t) Tax Opinion rendered to Bull Run regarding the Merger. Bull
Run shall have received an opinion of Xxxxxxxx Xxxxxxx LLP, special tax counsel
to Bull Run, to the effect that the Merger will qualify as a reorganization
under Section 368(a) of the Code.
(u) Other Events. No other events or developments shall have
occurred subsequent to the date of this Agreement that, in the judgment of the
Board of Directors of Xxxx or the special committee of the Board of Directors of
Xxxx, would result in the Distribution having a Material Adverse Effect on Xxxx
or a material adverse effect on the shareholders of Xxxx.
3.4. Modification. Xxxx shall, in its sole and absolute discretion,
determine the date of the consummation of the Distribution. In addition, at any
time and from time to time until the completion of the Distribution, Xxxx with
the consent of the special committee of the Board of Directors of TCM may modify
or change the terms of the Distribution.
SECTION 4
EMPLOYEES AND EMPLOYEE BENEFIT MATTERS
4.1. Employees. Immediately prior to, and subject to the Separation,
Xxxx shall transfer to TCM each employee of the Newspaper Publishing Business
and Graylink Wireless Business (the "Transferred Employees") so that no such
employee who becomes employed by TCM experiences any termination or other
interruption in employment and Xxxx shall cause all such Transferred Employees
to resign from all positions as officers or employees of Xxxx and its
Subsidiaries. Except as otherwise provided herein, TCM shall be liable for all
obligations relating to all Transferred Employees for all periods, whether
arising prior to, on or after the Separation Date. All employees of Xxxx and its
Subsidiaries as of the Separation Date who are not Transferred Employees shall
be retained by Xxxx and its Subsidiaries (the "Retained Employees") and Xxxx
shall be liable for all obligations relating to all Retained Employees for all
periods, whether arising prior to, on or after the Separation Date. TCM and Xxxx
(and their respective Subsidiaries) shall use commercially reasonable efforts to
accomplish any transfers of employment required by this Section 4.1 in a timely
manner.
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4.2. Prior Service Credit. TCM shall give each Transferred Employee
credit for years of service with Xxxx or its Subsidiaries as if they were years
of service with TCM. TCM shall recognize such service for purposes of satisfying
any waiting period, evidence of insurability requirements or the application of
any preexisting condition limitation. TCM shall also give Transferred Employees
credit for amounts paid under a corresponding Xxxx plan during the same period
for purposes of applying deductibles, copayments and out-of-pocket maximums as
though such amounts had been paid in accordance with the terms and conditions of
the benefit plan sponsored or maintained by TCM.
4.3. 401(k) Plan. Immediately prior to, and subject to, the
Separation, Xxxx shall cause a "spin off" of the assets and liabilities of the
Xxxx Television, Inc. Capital Accumulation Plan (the "Xxxx 401(k) Plan")
resulting in the division of the Xxxx 401(k) Plan into two separate, identical,
component plans and trusts, in accordance with applicable law (including,
without limitation, Section 414(l) of the Code), covering, respectively, (i) the
Transferred Employees (and their beneficiaries) (the "TCM 401(k) Plan") and (ii)
all other Xxxx 401(k) Plan participants (and their beneficiaries). Immediately
prior to, and subject to, the Separation, Xxxx shall cause the TCM 401(k) Plan
to be transferred to TCM but shall retain the Xxxx 401(k) Plan. Prior to the
Separation, Xxxx shall draft the appropriate documents and use its commercially
reasonable efforts to take all actions necessary, to the extent possible, to
effectuate the intent of this Section 4.3.
4.4. Pension Plan. Xxxx shall retain all liabilities and obligations
in respect of benefits accrued by Transferred Employees who participate in the
Xxxx Communications Systems, Inc. Retirement Plan (the "Retirement Plan").
Benefit accruals in respect of Transferred Employees shall cease as of the
Separation Date and the Transferred Employees participating therein shall be
considered to have terminated employment for purposes of such plan. Xxxx shall
fully vest the accrued benefits of the Transferred Employees under the
Retirement Plan as of the Separation Date. No assets under the Retirement Plan
shall be transferred to TCM or to any plan of TCM.
4.5. Welfare Plans
(a) Except as otherwise provided herein, immediately prior to,
and subject to, the Separation, Xxxx shall cause all of Xxxx'x employee welfare
benefit plans, as defined in Section 3(1) of ERISA (the "Xxxx Welfare Plans"),
to be divided into separate, identical component plans covering, respectively,
(i) the Transferred Employees (and their beneficiaries) (the "TCM Welfare
Plans") and (ii) all other Xxxx Welfare Plan participants (and their
beneficiaries), including without limitation, participants (and their
beneficiaries) who experienced a "qualifying event" for purposes of the group
health plan continuation coverage requirements of Section 4980 of the Code and
Title I, Subtitle B of ERISA prior to the Separation Date regardless of when an
election for continuation coverage is made by the participant. Immediately prior
to and subject to, the Separation, Xxxx shall cause the TCM Welfare Plans to be
transferred to TCM but shall retain the Xxxx Welfare Plans. Prior to the
Separation, Xxxx shall draft the appropriate documents and use its reasonable
best efforts to take all actions necessary, to the extent possible, to
effectuate the intent of this Section 4.5(a).
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(b) On and after the Separation Date, TCM shall pay, or cause to
be paid, all claims for health care benefits by the Transferred Employees (and
their beneficiaries), made after the Separation Date for post-Separation
periods, and shall pay, or cause to be paid, all claims for health care benefits
by the Transferred Employees (and their beneficiaries), made after the
Separation for all periods prior to the Separation Date.
(c) TCM shall be responsible for any liabilities or obligations
for severance obligations relating to employees of the Newspaper Publishing
Business and Graylink Wireless Business whose employment terminates prior to, or
on or after the Separation Date.
(d) Any Transferred Employee on short-term disability as of the
Closing Date that would have become eligible for long-term disability benefits
under the Xxxx Welfare Plans but for the consummation of the transactions
contemplated by this Agreement shall be covered by the Xxxx Welfare Plan that
provides long-term disability benefits and TCM shall have no obligation to
provide such coverage.
4.6. Section 125 Plan. Without limiting the generality of Section 4.5,
immediately prior to, and subject to, the Separation, Xxxx shall cause a "spin
off" of the assets and liabilities of the Xxxx Section 125 Plan (the "Xxxx Flex
Plan") (which contains premium, dependent care and medical health reimbursement
component parts) resulting in the division of the Xxxx Flex Plan into two,
separate, identical, component plans, in accordance with applicable law,
covering, respectively, (i) the Transferred Employees (and their beneficiaries)
(the "TCM Flex Plan") and (ii) all other Xxxx Flex Plan participants (and their
beneficiaries). Immediately prior to and subject to, the Separation, Xxxx shall
cause the TCM Flex Plan to be transferred to TCM but shall retain the Xxxx Flex
Plan. Prior to the Separation, Xxxx shall draft the appropriate documents and
use its reasonable best efforts to take all actions necessary, to the extent
possible, to effectuate the intent of this Section 4.6.
4.7. Accrued Vacation. Xxxx and TCM agree that all accrued vacation
for Transferred Employees as of the Separation Date shall be TCM's obligation.
4.8. Stock Option Plan. Immediately prior to, and subject to, the
Distribution, Xxxx shall cause each outstanding nonqualified option to purchase
shares of Xxxx Common Stock that was granted under the Xxxx 2002 Long Term
Incentive Plan on or before the Distribution Date to a Transferred Employee to
be become fully vested on the Distribution Date, and to continue to be
exercisable until the original expiration date. Prior to the Separation, Xxxx
shall prepare the appropriate documents and use its reasonable best efforts to
take all actions necessary, to the extent possible, to effectuate the intent of
this Section 4.8.
4.9. Workers' Compensation. TCM shall assume the liability for any
workers' compensation or similar workers' protection claims with respect to any
employee of the Newspaper Publishing Business and Graylink Wireless Business,
whether incurred prior to, on, or after the Distribution Date, which are the
result of an injury or illness originating prior to or on the Distribution Date.
12
4.10. WARN Act. TCM and its Subsidiaries agree that they shall not, at
any time during the 90-day period following the Distribution Date, (i)
effectuate a "plant closing" as defined in the Worker Adjustment and Retraining
Notification Act of 1988 (the "WARN Act") affecting any site of employment or
operating units within any site of employment of the Newspaper Publishing
Business and Graylink Wireless Business, or (ii) take any action to precipitate
a "mass layoff" as defined in the WARN Act affecting any site of employment of
the Newspaper Publishing Business and Graylink Wireless Business, except, in
either case, after complying fully with the notice and other requirements of the
WARN Act. TCM agrees to indemnify Xxxx and its Subsidiaries and their respective
officers and directors and to defend and hold harmless Xxxx and its Subsidiaries
and their respective officers and directors from and against any and all claims,
losses, damages, expenses, obligations and liabilities (including attorney's
fees and other costs of defense) that Xxxx and its Subsidiaries and their
respective officers and directors may incur in connection with any suit or claim
of violation brought against Xxxx under the WARN Act, which relates in whole or
in part to actions taken by TCM or its Subsidiaries with regard to any site of
employment of TCM or operating units within any site of employment of the
Newspaper Publishing Business and Graylink Wireless Business.
4.11. Information to be Provided. Each party and its Subsidiaries
shall provide any information that the other party may reasonably request,
including, but not limited to, information relating to dates of termination of
employment, in order to provide benefits to any eligible employee of TCM or any
of its Subsidiaries under the terms and conditions of this Agreement or under
the applicable Xxxx Plans.
4.12. No Right to Employment. Nothing contained in this Agreement will
confer upon any Transferred Employees any rights or remedies, including, without
limitation, any right to employment for any specified period, of any nature or
kind whatsoever, under or by reason of this Agreement. Notwithstanding anything
to the contrary contained in this Agreement, any employee benefit plan or
program for the Transferred Employees established by TCM may be amended or
terminated by TCM in accordance with its terms and applicable law.
SECTION 5
INSURANCE MATTERS
5.1. Insurance Prior to the Distribution Date. Xxxx shall not have any
liability whatsoever to TCM as a result of the insurance policies and practices
of Xxxx in effect at any time at or prior to the Distribution Date, including as
a result of the level or scope of any such insurance, the creditworthiness of
any insurance carrier, the terms and conditions of any policy, and the adequacy
or timeliness of any notice to any insurance carrier with respect to any claim
or potential claim or otherwise.
5.2. Ownership of Existing Policies and Programs. Xxxx or one or more
of its Subsidiaries shall continue to own all property, casualty and liability
insurance policies and programs, including, without limitation, primary and
excess general liability, errors and omissions, automobile, workers'
compensation, property, fire, crime and surety insurance policies, in effect on
or before the Distribution Date (collectively, the "Xxxx Policies" and
individually, a "Xxxx Policy"). Xxxx shall use commercially reasonable efforts
to maintain the Xxxx Policies in full force and effect up to and including the
Distribution Date, and, subject to
13
the provisions of this Agreement, Xxxx and its Subsidiaries shall retain all of
their respective rights, benefits and privileges, if any, under the Xxxx
Policies. Nothing contained in this Agreement shall be construed to be an
attempted assignment, or to change the ownership, of the Xxxx Policies.
5.3. Naming of TCM as Additional Insured. To the extent not already
provided for by the terms of a Xxxx Policy, Xxxx shall use commercially
reasonable efforts to cause TCM to be named as an additional insured under the
Xxxx Policies whose effective policy periods include the Distribution Date, in
respect of claims arising out of or relating to periods prior to the
Distribution Date.
5.4. TCM Insurance Policies. Commencing on and as of the Distribution
Date, TCM shall be responsible for establishing and maintaining separate
property, casualty and liability insurance policies and programs for activities
and claims involving TCM or any of its Subsidiaries. TCM will exercise
commercially reasonable efforts to secure liability insurance to avoid potential
gaps in coverage. TCM and each of its Subsidiaries, as appropriate, shall be
responsible for all administrative and financial matters relating to insurance
policies established and maintained by TCM and its Subsidiaries for claims
relating to any period on or after the Distribution Date involving TCM or any of
its Subsidiaries. Notwithstanding any other agreement or understanding to the
contrary, except as set forth in Section 5.6 with respect to claims
administration and financial administration of the Xxxx Policies, neither Xxxx
nor any of its Subsidiaries shall have any responsibility for or obligation to
TCM or any of its Subsidiaries relating to property and casualty insurance
matters for any period, whether prior to, on, or after the Distribution Date.
5.5. TCM Directors' and Officers' Insurance. Xxxx shall cause to be
maintained for a period of six years from the Distribution Date, Xxxx'x current
directors' and officers' insurance and indemnification policies and fiduciary
liability policies ("D&O Insurance"), provided that, Xxxx may substitute
therefor, at is election, policies or financial guarantees with the same
carriers or other reputable and financially sound carriers of at least the same
coverage and amounts containing terms and conditions which are no less
advantageous that the existing D&O Insurance, to the extent that such insurance
policies provide coverage for events occurring at or prior to the Distribution
Date for all persons who are directors and officers of TCM on the date of this
Agreement (or were such prior to the date of this Agreement), so long as the
annual premium after the date of this Agreement for such D&O Insurance during
such six-year period would not exceed 300% of the annual premium as of the date
of this Agreement. If, during such six-year period, such insurance coverage can
only be obtained for an amount in excess of 300% of the annual premium therefor
as of the date of this Agreement, Xxxx shall use commercially reasonable efforts
to cause insurance coverage at a reduced face amount to be obtained for an
amount equal to 300% of the current annual premium therefore, on terms and
conditions substantially similar to the existing D&O Insurance. Set forth in
Schedule 5.5 is the amount of the annual premium currently paid by Xxxx for its
D&O Insurance. In the event Xxxx or any of its successors or assigns (i)
consolidates with or merges into any other Person and shall not be the
continuing or surviving corporation or entity of such consolidation or merger,
or (ii) transfers or conveys all or substantially all of its properties and
assets to any Person, then, and in each such case, to the extent necessary,
proper provision shall be made so that the successors and assigns of Xxxx assume
the obligations set forth in this Section 5.5. The provisions of this
14
Section 5.5 are intended to be for the benefit of, and shall be enforceable by,
each officer and director of TCM on the date of this Agreement (or prior to the
date of this Agreement) and his or her heirs and representatives.
5.6. Post-Distribution Insurance Claims Administration. Upon
notification by TCM or one of its Subsidiaries of a claim relating to TCM or one
of its Subsidiaries under one or more of the Xxxx Policies, Xxxx shall cooperate
with TCM in asserting and pursuing coverage and payment for such claim by the
appropriate insurance carrier(s). In asserting and pursuing such coverage and
payment, Xxxx and TCM shall jointly make all decisions, determinations,
commitments and stipulations concerning any such claims on its own behalf and on
behalf of TCM and its Subsidiaries, which decisions, determinations, commitments
and stipulations shall be final and conclusive if reasonably made to maximize
the overall economic benefit of the Xxxx Policies. TCM and its Subsidiaries
shall assume responsibility for, and shall pay to the appropriate insurance
carriers or otherwise, any premiums, defense costs, indemnity payments,
deductibles, retentions or other charges (collectively, "Insurance Charges")
whenever arising, which shall become due and payable under the terms and
conditions of any applicable Xxxx Policy in respect of any claims made by TCM or
one of its Subsidiaries under the Xxxx Policies, whether the same relate to the
period prior to, on, or after the Distribution Date. To the extent that the
terms of any applicable Xxxx Policy provide that Xxxx or any of its Subsidiaries
shall have an obligation to pay or guarantee the payment of any Insurance
Charges relating to TCM or any of its Subsidiaries, Xxxx shall be entitled to
demand that TCM make such payment directly to the Person or entity entitled
thereto. In connection with any such demand, Xxxx shall submit to TCM a copy of
any invoice received by Xxxx pertaining to such Insurance Charges together with
appropriate supporting documentation, to the extent available. In the event that
TCM fails to pay any such Insurance Charges when due and payable, whether at the
request of the Person entitled to payment or upon demand by Gray, Gray and its
Subsidiaries may (but shall not be required to) pay such Insurance Charges for
and on behalf of TCM and, thereafter, TCM shall forthwith reimburse Xxxx for
such payment. Subject to the other provisions of this Section 5, the retention
by Xxxx of the Xxxx Policies and the responsibility for claims administration
and financial administration of such policies are in no way intended to limit,
inhibit or preclude any right of TCM, Xxxx or any other insured to insurance
coverage for any insured claims under the Xxxx Policies.
5.7. Non-Waiver of Rights to Coverage. An insurance carrier that would
otherwise be obligated to pay any claim shall not be relieved of the
responsibility with respect thereto, or, solely by virtue of the provisions of
this Section 5, have any subrogation rights with respect thereto, it being
expressly understood and agreed that no insurance carrier nor any third party
shall be entitled to a benefit that they would not be entitled to receive had no
Distribution occurred or in the absence of the provisions of this Section 5.
5.8. Scope of Affected Policies of Insurance. The provisions of this
Section 5 relate solely to matters involving liability, casualty and workers'
compensation insurance and shall not be construed to affect any obligation of or
impose any obligation on the parties with respect to any life, health and
accident, dental or medical insurance policies applicable to any of the
officers, directors, employees or other representatives of the parties or their
Subsidiaries.
15
SECTION 6
CERTAIN COVENANTS
6.1. Further Instruments; Consents.
(a) In addition to the specific agreements, documents, and
instruments attached to this Agreement, Xxxx and TCM shall execute or cause to
be executed by the appropriate parties and deliver, as appropriate, such other
agreements, instruments and documents as may be necessary or desirable in order
to effect the purposes of this Agreement and the Ancillary Agreements. Neither
Xxxx nor TCM shall be obligated, in connection with the foregoing, to expend
money other than reasonable out-of-pocket expenses, attorneys' fees, and
recording or similar fees. Furthermore, each party, at the request of the other
party hereto, shall do and perform such other acts and things as may be
necessary or desirable for effecting completely the consummation of the
transactions contemplated by this Agreement.
(b) Xxxx shall use reasonable efforts (but Xxxx shall not be
required to make any payment), to obtain at the earliest practicable date all
consents and approvals referred to in Section 3.3(e)(ii). If, with respect to
any Assigned Contract or any agreement, lease or commitment of Xxxx Publishing
and its Subsidiaries, a required consent to the transfer of the membership
interests of Xxxx Publishing is not obtained (and, accordingly, pursuant to
section 1.2(d), the agreement, lease or commitment is excluded from the
contribution to TCM), Xxxx shall use reasonable efforts (but Xxxx shall not be
required to make any payment), to keep it in effect and give TCM the benefit of
it to the same extent as if it had been assigned, without any additional cost to
TCM in excess of the amount for which it would have been responsible had such
contract been assigned. Nothing in this Agreement shall be construed as an
attempt to assign any agreement or other instrument that is by its terms
nonassignable without the consent of the other party.
6.2. Exchange of Information.
(a) General. Each of Xxxx and TCM, for itself and on behalf of
its Subsidiaries, agrees to provide, or cause to be provided, to the other, at
any time before or after the Distribution Date, as soon as reasonably
practicable after written request therefor, any Information in the possession or
under the control of such party that the requesting party reasonably needs (i)
to comply with reporting, disclosure, filing or other requirements imposed on
the requesting party (including under applicable securities laws) by any
Governmental Authority having jurisdiction over the requesting party, (ii) for
use in any other judicial, regulatory, administrative or other proceeding or in
order to satisfy audit, accounting, claims, regulatory, litigation or other
similar requirements, (iii) to comply with its obligations under this Agreement
or any Ancillary Agreement or (iv) in connection with the ongoing businesses of
Xxxx or TCM, as the case may be; provided, however, that in the event that any
party determines that any such provision of Information could be commercially
detrimental, violate any law or agreement, or waive any attorney-client
privilege, the parties shall take all reasonable measures to permit the
compliance with such obligations in a manner that avoids any such harm or
consequence.
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(b) Internal Accounting Controls; Financial Information. After
the Separation Date, (i) each party shall maintain in effect at its own cost and
expense adequate systems and controls for its business to the extent necessary
to enable the other party to satisfy its reporting, accounting, audit and other
obligations, and (ii) each party shall provide, or cause to be provided, to the
other party and its Subsidiaries in such form as such requesting party shall
request, at no charge to the requesting party, all financial and other data and
Information as the requesting party determines necessary or advisable in order
to prepare its financial statements and reports or filings with any Governmental
Authority.
(c) Ownership of Information. Any Information owned by a party
that is provided to a requesting party pursuant to this Section 6.2 shall be
deemed to remain the property of the providing party. Unless specifically set
forth in this Agreement, nothing contained in this Agreement shall be construed
as granting or conferring rights of license or otherwise in any such
Information.
(d) Record Retention. To facilitate the possible exchange of
Information pursuant to this Section 6.2 and other provisions of this Agreement
after the Distribution Date, the parties agree to use commercially reasonable
efforts to retain all Information in their respective possession or control on
the Distribution Date in accordance with the policies of Xxxx as in effect on
the Distribution Date or such other policies as may be reasonably adopted by the
applicable party after the Distribution Date. No party will destroy, or permit
any of its affiliates to destroy, any Information which the other party may have
the right to obtain pursuant to this Agreement prior to the third anniversary of
the date of this Agreement without first using its commercially reasonable
efforts to notify the other party of the proposed destruction and giving the
other party the opportunity to take possession of such Information prior to such
destruction; provided, however, that in the case of any Information relating to
taxes, employee benefits or environmental liabilities, such period shall be
extended to the expiration of the applicable statute of limitations (giving
effect to any extensions thereof); provided further, however, that in the event
that any such Information is also subject to a retention requirement contained
in any Ancillary Agreement that is longer than the requirement set forth in this
Section 6.2, then the requirement in such Ancillary Agreement shall control.
(e) Limitation of Liability. No party shall have any liability to
any other party in the event that any Information exchanged or provided pursuant
to this Section 6.2 is found to be inaccurate, in the absence of willful
misconduct by the party providing such Information. No party shall have any
liability to any other party if any Information is destroyed or lost after
commercially reasonable efforts by such party to comply with the provisions of
Section 6.2(d).
(f) Other Agreements Providing for Exchange of Information. The
rights and obligations granted under this Section 6.2 are subject to any
specific limitations, qualifications, or additional provisions on the sharing,
exchange, or confidential treatment of Information set forth in this Agreement
and any Ancillary Agreement.
(g) Production of Witnesses; Records; Cooperation. After the
Distribution Date, except in the case of a legal or other proceeding by one
party against another party (which shall be governed by such discovery rules as
may be applicable under Section 8 or
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otherwise), each party shall use its commercially reasonable efforts to make
available to the other party, upon written request, the former, current, and
future directors, officers, employees, other personnel, and agents of such party
as witnesses and any books, records, or other documents within its control or
which it otherwise has the ability to make available, to the extent that any
such person (giving consideration to business demands of such directors,
officers, employees, other personnel, and agents) or books, records, or other
documents may reasonably be required in connection with any legal,
administrative, or other proceeding in which the requesting party may from time
to time be involved, regardless of whether such legal, administrative, or other
proceeding is a matter with respect to which indemnification may be sought. The
requesting party shall bear all costs and expenses in connection therewith.
6.3. Privileged Matters.
(a) Preservation of Privileges. The parties each agree that they
will maintain, preserve, and assert all privileges, including, without
limitation, privileges arising under or relating to the attorney-client
relationship (which shall include, without limitation, the attorney-client and
work product privileges), that relate directly or indirectly to such party for
any period prior to the Distribution Date ("Privilege" or "Privileges"). Neither
party shall waive any Privilege that could be asserted under applicable law
without the prior written consent of the other party. The rights and obligations
created by this Section 6.3 shall apply to all Information as to which, but for
the Distribution, a party would have been entitled to assert or did assert the
protection of a Privilege ("Privileged Information"), including, but not limited
to, (i) any and all Information generated prior to the Distribution Date but
which, after the Distribution, is in the possession of the other party; (ii) all
communications subject to a Privilege occurring prior to the Distribution Date
between counsel for such party and any person who, at the time of the
communication, was an employee of such party, regardless of whether such
employee is or becomes an employee of the other party; and (iii) all Information
generated, received, or arising after the Distribution Date that refers or
relates to Privileged Information generated, received, or arising prior to the
Distribution Date.
(b) Notices. Upon receipt by a party or any of its Subsidiaries
of any subpoena, discovery, or other request that arguably calls for the
production or disclosure of Privileged Information or if such party or any of
its Subsidiaries obtains knowledge that any current or former employee of such
party or any of its Subsidiaries has received any subpoena, discovery, or other
request that arguably calls for the production or disclosure of Privileged
Information, such party shall promptly notify the other party of the existence
of the request and shall provide the other party a reasonable opportunity to
review the Information and to assert any rights it may have under this Section
6.3 or otherwise to prevent the production or disclosure of Privileged
Information. Neither party will produce or disclose any Information arguably
covered by a Privilege under this Section 6.3 unless (i) the other party has
provided its express written consent to such production or disclosure, or (ii)
unless compelled to disclose by judicial or administrative process or, in the
opinion of its independent legal counsel, by other requirements of law.
(c) Access Not a Waiver. The access to Information being granted
pursuant to Section
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6.2, the agreement to provide witnesses and individuals pursuant to Section 6.2,
and the transfer of Privileged Information pursuant to this Agreement shall not
be deemed a waiver of any Privilege that has been or may be asserted under this
Section 6.3 or otherwise.
6.4. Certain Business Matters. No party shall have any duty to refrain
from (i) engaging in the same or similar activities or lines of business as the
other party, (ii) doing business with any potential or actual supplier or
customer of the other party or (iii) engaging in, or refraining from, any other
activities whatsoever relating to any potential or actual suppliers or customers
of the other party.
6.5. Payment Obligations. On the Separation Date, TCM shall pay, or
shall cause Xxxx Publishing to pay, the balance due as of the Separation Date
under that certain promissory note dated as of December 31, 2004, by and between
Xxxx Publishing and Xxxx Television Group, Inc. (the "Promissory Note") to Xxxx
Television Group, Inc., which payment shall be in complete satisfaction of Xxxx
Publishing's obligations under the Promissory Note. In addition, on the
Separation Date, in partial consideration of the transfer of the membership
interests and other assets to TCM under Section 1.1, TCM shall distribute to
Xxxx an amount equal to the difference between (i) $40.0 million and (ii) the
amount paid to Xxxx Television Group, Inc. pursuant to the Promissory Note.
6.6. Reimbursement Obligations. Following the Distribution, TCM shall
promptly reimburse Xxxx for any amounts paid, from time to time, by Xxxx
pursuant to the terms of the Guarantee and Acknowledgment dated June 9, 2005
made by Xxxx and the special committee of the Board of Directors of Xxxx in
favor of Xxxxxxxx Xxxxx Xxxxxx & Xxxxx Capital, Inc. and its affiliates.
SECTION 7
INDEMNIFICATION
7.1. Indemnification by Xxxx. Xxxx shall indemnify, defend, and hold
harmless TCM and its Subsidiaries, and each of their respective directors,
officers, employees, counsel, and agents (the "TCM Indemnitees") from and
against any and all Indemnifiable Losses incurred or suffered by any TCM
Indemnitee in connection with any Action or threatened Action and arising out of
or due to, directly or indirectly, (i) any of the Retained Assets, (ii) any of
the Assumed Liabilities or (iii) any failure to perform, or violation of, any
provision of this Agreement or any Ancillary Agreement that is to be performed
or complied with by Xxxx or its Subsidiaries (other than TCM and its
Subsidiaries).
7.2. Indemnification by TCM. TCM shall indemnify, defend, and hold
harmless Xxxx and its Subsidiaries, and each of their respective directors,
officers, employees, counsel, and agents (the "Xxxx Indemnitees") from and
against any and all Indemnifiable Losses incurred or suffered by any Xxxx
Indemnitee in connection with any Action or threatened Action and arising out of
or due to, directly or indirectly, (i) the Newspaper Publishing Business, (ii)
Graylink Wireless Business, (iii) the Assigned Contracts, (iv) the Assigned Real
Property, or (v) any failure to perform, or violation of, any provision of this
Agreement or any Ancillary Agreement that is to be performed or complied with by
TCM or its Subsidiaries.
7.3. Procedure for Indemnification.
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(a) General. The following procedures shall apply to any claim
for indemnification made pursuant to Section 7.1 and Section 7.2 and pursuant to
any indemnities provided in any Ancillary Agreement.
(b) Notices. If a Xxxx Indemnitee or TCM Indemnitee shall receive
notice of any Action by any third party, or any fact or allegation upon which
such Action could be based (hereinafter a "Third Party Claim"), with respect to
which an Indemnifying Party is or may be obligated to make an Indemnity Payment,
it shall give the Indemnifying Party prompt notice thereof (including any
pleadings relating thereto), specifying in reasonable detail the nature of such
Third Party Claim and the amount or estimated amount thereof to the extent then
feasible (which estimate shall not be conclusive of the final amount of such
Indemnity Payment); provided, however, that the failure of an Indemnitee to give
notice as provided in this Section 7.3 shall not relieve the Indemnifying Party
of its indemnification obligations under this Section 7, except to the extent
that such Indemnifying Party is actually prejudiced by such failure to give
notice.
(c) Defense. For any Third Party Claim upon which notice is
required to be given under Section 7.3(b), the Indemnifying Party shall defend
such Third Party Claim at its sole cost and expense and through counsel employed
by the Indemnifying Party and reasonably acceptable to the Indemnitee. Within 30
days of receipt of the notice of the Third Party Claim received under Section
7.3(b), the Indemnifying Party shall give notice of its intent to defend or
objection to the claim of indemnification specifying in reasonable detail the
grounds therefor. Failure to provide such notice within such 30-day period shall
be deemed an acknowledgment by the Indemnifying Party of its indemnity
obligation for the Third Party Claim.
(d) Settlement. The Indemnifying Party's right to defend any
Third Party Claim includes the right to control, manage, and direct the defense
of the Third Party Claim and to compromise, settle, or consent to the entry of
any judgment or determination of liability concerning such Third Party Claim;
provided, however, that the Indemnifying Party shall not compromise, settle, or
consent to the entry of judgment or determination of liability against the
Indemnitee without prior written approval by the Indemnitee, which approval
shall not be unreasonably withheld or delayed; provided, however, that if the
Indemnifying Party shall seek the approval of the Indemnitee to a settlement for
monetary damages for which the Indemnifying Party accepts responsibility and if
the Indemnitee shall withhold or unreasonably delay approval of such settlement,
then the obligation of the Indemnifying Party shall be limited to the amount of
the proposed and unapproved settlement, plus attorney's fees and costs to the
date of the proposed settlement, and the Indemnitee shall be solely responsible
for any additional amount.
(e) Participation. The Indemnitee may participate in the
Indemnifying Party's defense of any Third Party Claim in which the Indemnitee
has an interest and be represented by counsel of its own choosing at the
Indemnitee's sole cost and expense.
(f) Failure to Defend. If the Indemnifying Party fails to defend
a Third Party Claim, the Indemnitee may defend and may compromise and settle or
consent to an entry of judgment or a determination of liability concerning such
Third Party Claim at the sole
20
cost and expense of the Indemnifying Party; provided, however, that the
Indemnitee shall not compromise, settle, or consent to the entry of judgment or
determination of liability against the Indemnitee without prior written approval
by the Indemnifying Party, unless such approval is unreasonably withheld or
delayed.
(g) Access to Information. Regardless of the party that defends a
Third Party Claim, the other shall make available to the Indemnifying Party all
employees, Information, books and records, communications, and documents, within
its possession or control, that are necessary, appropriate or reasonably deemed
relevant with respect to such defense, and otherwise shall reasonably cooperate
in the defense of the Third Party Claim.
(h) Release of Liability. With respect to any Third Party Claim,
no Indemnifying Party or Indemnitee shall enter into any compromise, settlement,
or consent to the entry of any judgment that does not include as an
unconditional term thereof the giving by the third party of a release of the
Indemnitee from all further liability concerning such Third Party Claim.
(i) Payment. Upon final judgment after exhaustion of all appeals,
settlement, compromise, or other final resolution of any Third Party Claim, and
unless otherwise agreed by the parties in writing, the Indemnifying Party shall
pay promptly on behalf of the Indemnitee, or to the Indemnitee in reimbursement
of any amount theretofore required to be paid by it, the amount so determined by
final judgment after exhaustion of all appeals, settlement, compromise, or final
resolution. Upon the payment in full by the Indemnifying Party of such amount,
the Indemnifying Party shall succeed to the rights of such Indemnitee, to the
extent not waived in settlement, against any third party.
7.4. Direct Claims. Any claim for indemnity pursuant to Section 7.1 or
Section 7.2 on account of an Indemnifiable Loss made directly by the Indemnitee
against the Indemnifying Party that does not result from a Third Party Claim
shall be asserted by written notice from the Indemnitee to the Indemnifying
Party. Such Indemnifying Party shall have a period of 90 days (or such shorter
time period as may be required by law as indicated by the Indemnitee in the
written notice) within which to respond thereto. If such Indemnifying Party does
not respond within such 90-day (or lesser) period, such Indemnifying Party shall
be deemed to have accepted responsibility to make payment and shall have no
further right to contest the validity of such claim. If such Indemnifying Party
does respond within such 90-day (or lesser) period and rejects such claim in
whole or in part, such Indemnitee shall be free to pursue resolution as provided
in Section 8.
7.5. Adjustment of Indemnifiable Losses. The amount that an
Indemnifying Party is required to pay to an Indemnitee pursuant to Section 7.1
or Section 7.2 shall be reduced (including, without limitation, retroactively)
by any insurance proceeds and other amounts actually recovered by such
Indemnitee in reduction of the related Indemnifiable Loss. If an Indemnitee
shall have received an Indemnity Payment in respect of an Indemnifiable Loss and
shall subsequently actually receive insurance proceeds or other amounts in
respect of such Indemnifiable Loss, then such Indemnitee shall pay to such
Indemnifying Party a sum equal to the lesser of the amount of such insurance
proceeds or other amounts actually received or the net amount of Indemnity
Payments actually received previously.
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7.6. No Third Party Beneficiaries. Except to the extent expressly
provided otherwise in this Section 7, the indemnification provided for by this
Section 7 shall not inure to the benefit of any third party or parties and shall
not relieve any insurer or other third party that would otherwise be obligated
to pay any claim of the responsibility with respect thereto or, solely by virtue
of the indemnification provisions hereof, provide any subrogation rights with
respect thereto, and each party agrees to waive such rights against the other to
the fullest extent permitted.
SECTION 8
DISPUTE RESOLUTION
8.1. General. The resolution of any and all disputes arising from or
in connection with this Agreement, whether based on contract, tort or otherwise
(collectively, "Disputes"), shall be exclusively governed by and settled in
accordance with the provisions of this Section 8.
8.2. Negotiation. The parties shall make a good faith attempt to
resolve any Dispute through negotiation. Within 30 days after notice of a
Dispute is given by either party to the other party, each party shall select a
negotiating team comprised of two or more vice president-level employees of such
party and shall meet within 30 days after the end of the first 30-day
negotiating period to attempt to resolve the matter. During the course of
negotiations under this Section 8.2, all reasonable requests made by one party
to the other for Information, including requests for copies of relevant
documents, will be honored. The specific format for such negotiations will be
left to the discretion of the designated negotiating teams but may include the
preparation of agreed-upon statements of fact or written statements of position
furnished to the other party.
8.3. Non-Binding Mediation. In the event that any Dispute is not
settled by the parties within 30 days after the first meeting of the negotiating
teams under Section 8.2, the parties will attempt in good faith to resolve such
Dispute by non-binding mediation in accordance with the American Arbitration
Association Commercial Mediation Rules. The mediation shall be held within 60
days of the end of such 30-day negotiation period of the negotiating teams.
Except as provided below in Section 8.4, no litigation for the resolution of
such dispute may be commenced until the parties attempt in good faith to settle
the dispute by such mediation in accordance with such rules and either party has
concluded in good faith that amicable resolution through continued mediation of
the matter does not appear likely. The costs of mediation shall be shared
equally by the parties to the mediation. Any settlement reached by mediation
shall be recorded in writing, signed by the parties, and shall be binding on
them.
8.4. Proceedings. Nothing in this Agreement shall prohibit either
party from initiating litigation or other judicial or administrative proceedings
if such party would be substantially harmed by a failure to act during the time
that such good faith efforts are being made to resolve the Dispute through
negotiation or mediation. In the event that litigation is commenced under this
Section 8.4, the parties agree to continue to attempt to resolve any Dispute
according to the terms of Section 8.2 and Section 8.3 during the course of such
litigation proceedings under this Section 8.4.
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8.5. Pay and Dispute. Except as provided in this Agreement, in the
event of any dispute regarding payment of a third-party invoice (subject to
standard verification of receipt of products or services), the party named in a
third party's invoice must make timely payment to such third party, even if the
party named in the invoice desires to pursue the dispute resolution procedures
outlined in this Section 8. If the party that paid the invoice is found pursuant
to this Section 8 to not be responsible for such payment, such paying party
shall be entitled to reimbursement, with interest accrued at a compound annual
rate of the Prime Rate, from the party found responsible for such payment.
SECTION 9
MISCELLANEOUS
9.1. Representations and Warranties of Xxxx.(a) Xxxx represents and
warrants that immediately following the Separation, TCM shall have all of the
assets (tangible and intangible) necessary for the conduct of the Newspaper
Publishing Business and Graylink Wireless Business in the manner in which it was
conducted by Xxxx on the date of this Agreement and as such businesses are
proposed to be conducted by TCM following the Distribution, except for the
assets referred to in Section 1.2.
(b) TCM acknowledges that the assets of the Newspaper Publishing
Business and Graylink Wireless Business are being transferred "as is, where is"
and that Xxxx is not, in this Agreement, the Ancillary Agreements or in any
other agreement or document contemplated by this Agreement or the Ancillary
Agreements, including without limitation, registration statement on Form S-4 and
the proxy statement/prospectus/information statement representing or warranting
in any way the value or freedom from encumbrance of, or any other matter
concerning, any assets of the Newspaper Publishing Business or Graylink Wireless
Business. TCM acknowledges that Xxxx is not in this Agreement or the Ancillary
Agreements, nor in any other agreement or document contemplated by this
Agreement or the Ancillary Agreements, including without limitation,
registration statement on Form S-4 and proxy statement/prospectus/information
statement representing or warranting in any way that the obtaining of the
consents or approvals, the execution and delivery of any amendatory agreements,
or the making of the filings contemplated by this Agreement shall satisfy the
provisions of all applicable agreements or the requirements of all applicable
laws or judgments, and except as otherwise provided in Section 6.1(b) that TCM
shall bear the economic and legal risk that any necessary consents or approvals
are not obtained or that any requirements of law or judgments are not complied
with.
9.2. LIMITATION OF LIABILITY. IN NO EVENT SHALL XXXX OR TCM BE LIABLE
TO THE OTHER PARTY FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL, OR
PUNITIVE DAMAGES OR LOST PROFITS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY
(INCLUDING NEGLIGENCE) ARISING IN ANY WAY OUT OF THIS AGREEMENT, WHETHER OR NOT
SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED,
HOWEVER, THAT THE FOREGOING LIMITATIONS SHALL NOT LIMIT EACH PARTY'S
INDEMNIFICATION OBLIGATIONS FOR LIABILITIES TO THIRD PARTIES AS SET FORTH IN
THIS AGREEMENT.
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9.3. Survival. Except as expressly set forth in any Ancillary
Agreement, the covenants, representations and warranties contained in this
Agreement and each Ancillary Agreement, and liability for the breach of any
obligations contained in this Agreement, shall survive the Separation and
Distribution and shall remain in full force and effect.
9.4. Expenses. Except as otherwise provided in this Agreement, the
Ancillary Agreements, or any other agreement between the parties relating to the
Transaction, all costs and expenses of the parties hereto in connection with the
Transaction shall be paid by TCM (other than 50% of the fees and expenses of
Banc of America Securities, 50% of the fees and expenses of Proskauer Rose LLP,
50% of the fees and expenses of King & Spalding LLP, 34% of the printing fees
and expenses and SEC filing fees, and 50% of all incidental services related to
the Transaction, which shall be paid by Xxxx). TCM shall promptly, on or after
the Distribution Date, reimburse Xxxx for any fees and expenses paid by Xxxx, on
behalf of TCM.
9.5. Entire Agreement. This Agreement, the Ancillary Agreements, and
the Exhibits and Schedules referenced or attached hereto and thereto, constitute
the entire agreement between the parties with respect to the subject matter
hereof and shall supersede all prior written and oral and all contemporaneous
oral agreements and understandings with respect to the subject matter hereof.
9.6. Amendment. No change or amendment will be made to this Agreement
except by an instrument in writing signed on behalf of each of the parties to
this Agreement.
9.7. No Third-Party Beneficiaries. Except as specifically provided in
Section 5.5, and Section 7.1 and Section 7.2 (to the extent set forth in Section
7.6), this Agreement is solely for the benefit of the parties to this Agreement
and their respective Subsidiaries and successors, and shall not confer upon any
other Person any rights or remedies hereunder.
9.8. Governing Law. This Agreement shall be governed, construed, and
enforced in accordance with the laws of the state of Delaware as to all matters
regardless of the laws that might otherwise govern under the principles of
conflict of laws applicable thereto.
9.9. Termination. This Agreement may be terminated at any time prior
to the Distribution by and in the sole discretion of Xxxx without the approval
of TCM or the shareholders of Xxxx. After the Distribution, this Agreement may
not be terminated except by an agreement in writing signed by Xxxx and TCM. In
the event of termination pursuant to this Section 9.9, no party shall have any
liability of any kind to the other party.
9.10. Notices. Any notice, demand, offer, request or other
communication required or permitted to be given by either party pursuant to the
terms of this Agreement shall be in writing and shall be deemed effectively
given the earlier of (a) when received, (b) when delivered personally, (c) one
business day after being delivered by facsimile (with receipt of appropriate
confirmation), (d) one business day after being deposited with an overnight
courier service, or (e) four days after being deposited in the U.S. mail, First
Class with postage prepaid, and addressed to the attention of the party's Chief
Executive Officer at the address of its principal executive office or such other
address as a party may request by notifying the other in writing.
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9.11. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original but all of which shall
constitute one and the same agreement.
9.12. Binding Effect and Assignment. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective legal
representatives and successors. This Agreement may not be assigned by any party
hereto.
9.13. Severability. If any term or other provision of this Agreement
is determined by a nonappealable decision by a court, administrative agency, or
arbitrator to be invalid, illegal, or incapable of being enforced by any rule of
law or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to either party. Upon such determination that any term
or other provision is invalid, illegal, or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in an
acceptable manner to the end that transactions contemplated hereby are fulfilled
to the fullest extent possible.
9.14. Failure and Remedies. No failure or delay on the part of either
party in the exercise of any right hereunder shall impair such right or be
construed to be a waiver of, or acquiescence in, any breach of any
representation, warranty, or agreement in this Agreement, nor shall any single
or partial exercise of any such right preclude other or further exercise thereof
or of any other right. All rights and remedies existing under this Agreement are
cumulative to, and not exclusive of, any rights or remedies otherwise available.
9.15. Authority. Each of the parties hereto represents to the other
that (a) it has the corporate power and authority to execute, deliver, and
perform this Agreement, (b) the execution, delivery, and performance of this
Agreement by it has been duly authorized by all necessary corporate actions, (c)
it has duly and validly executed and delivered this Agreement, and (d) this
Agreement is a legal, valid, and binding obligation, enforceable against it in
accordance with its terms.
9.16. Interpretation. The headings contained in this Agreement, in any
Exhibit or Schedule hereto, and in the table of contents to this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
9.17. Conflicting Agreements. In the event of conflict between this
Agreement and any Ancillary Agreement or other agreement executed in connection
herewith, the provisions of such other agreement shall prevail.
9.18. Definitions.
(a) "Action" means any action, claim, suit, arbitration, inquiry,
subpoena, discover request, proceeding, or investigation by or before any court
or grand jury, any governmental or other regulatory or administrative agency or
commission, or any arbitration tribunal.
25
(b) "Agreement" has the meaning set forth in the prelude of this
Agreement.
(c) "Ancillary Agreements" means the Assignment and Assumption
Agreement, Real Property Lease, Tax Sharing Agreement and Confidentiality
Agreement.
(d) "Assigned Contract" has the meaning set forth in Section
1.1(b).
(e) "Assigned Real Property" has the meaning set forth in Section
1.1(c).
(f) "Assignment Agreement" has the meaning set forth in Section
2.3(b).
(g) "Assumed Liabilities" has the meaning set forth in Section
1.3.
(h) "Bull Run" means Bull Run Corporation, a Georgia corporation.
(i) "Code" means the Internal Revenue Code of 1986, as amended
from time to time.
(j) "Confidentiality Agreement" means the confidentiality
agreement dated June 1, 2005 by and among Bull Run, TCM and Xxxx.
(k) "Contracts" has the meaning set forth in Section 1.1(g).
(l) "Contribution Agreement" has the meaning set forth in Section
2.3(e).
(m) "D&O Insurance" has the meaning set forth in Section 5.5.
(n) "Disputes" has the meaning set forth in Section 8.1.
(o) "Distribution" has the meaning set forth in the Recitals to
this Agreement.
(p) "Distribution Agent" means Mellon Investor Services, LLC.
(q) "Distribution Date" means such date as shall be fixed by the
Board of Directors of Xxxx for the Distribution.
(r) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(s) "Governmental Approvals" means any notices, reports, or other
filings to be made, or any consents, registrations, approvals, permits, or
authorizations to be obtained from, any Governmental Authority.
26
(t) "Governmental Authority" shall mean any federal, state,
local, foreign, or international court, government, department, commission,
board, bureau, agency, official, or other regulatory, administrative, or
governmental authority.
(u) "Xxxx" has the meaning set forth in the prelude to this
Agreement.
(v) "Xxxx 401(k) Plan" has the meaning set forth in Section 4.3.
(w) "Xxxx Class A Common Stock" has the meaning set forth in the
Recitals to this Agreement.
(x) "Xxxx Common Stock" has the meaning set forth in the Recitals
to this Agreement.
(y) "Xxxx Flex Plan" has the meaning set forth in Section 4.6.
(z) "Xxxx Indemnitee" has the meaning set forth in Section 7.2.
(aa) "Xxxx Policy" has the meaning set forth in Section 5.2.
(bb) "Xxxx Publishing" has the meaning set forth in the Recitals.
(cc) "Xxxx Stock" has the meaning set forth in the Recitals.
(dd) "Xxxx Welfare Plans" has the meaning set forth in Section
4.5(a).
(ee) "Graylink" has the meaning set forth in the Recitals.
(ff) "Graylink Wireless Business" has the meaning set forth in
the Recitals to this Agreement.
(gg) "Indemnifiable Losses" means, with respect to any claim by
an Indemnitee for indemnification authorized pursuant to Section 7, any and all
losses, liabilities, claims, damages, obligations, payments, costs, and expenses
(including, without limitation, the costs and expenses of any and all Actions,
demands, assessments, judgments, settlements, and compromises relating thereto
and reasonable attorneys' fees and expenses in connection therewith) suffered by
such Indemnitee with respect to such claim.
(hh) "Indemnifying Party" means any party who is required to pay
any other Person pursuant to Section 7.
(ii) "Indemnitee" means any party who is entitled to receive
payment from an Indemnifying Party pursuant to Section 7.
(jj) "Indemnity Payment" means the amount an Indemnifying Party
is required to pay an Indemnitee pursuant to Section 7.
(kk) "Information" means information, whether or not patentable
or copyrightable, in written, oral, electronic, or other tangible or intangible
form, stored in any
27
medium, including studies, reports, records, books, contracts, instruments,
surveys, discoveries, ideas, concepts, know-how, techniques, designs,
specifications, drawings, blueprints, diagrams, models, prototypes, samples,
flow charts, data, computer data, disks, diskettes, tapes, computer programs or
other software, marketing plans, customer names, communications by or to
attorneys (including attorney-client privileged communications), memos and other
materials prepared by attorneys or under their direction (including attorney
work product), and other technical, financial, employee, or business information
or data.
(ll) "Insurance Charges" has the meaning set forth in Section
5.6.
(mm) "Material Adverse Effect" means a material and adverse
effect on the operation of the applicable company taken as a whole; provided,
however, that the following shall not be taken into account in determining
whether there has been or would be a "Material Adverse Effect": (i) any adverse
changes or developments resulting from conditions affecting the United States
economy generally; (ii) any acts of war, insurrection, sabotage or terrorism;
and (iii) any adverse changes or developments arising primarily out of, or
resulting primarily from, actions taken by any party in connection with (but not
in breach of) this Agreement and the transactions contemplated hereunder, or
which are primarily attributable to the announcement of this Agreement and the
transactions contemplated hereby.
(nn) "Merger" means the merger of Bull Run with and into BR
Acquisition Corp. pursuant to the terms of the Merger Agreement.
(oo) "Merger Agreement" means the Agreement and Plan of Merger
dated August 2, 2005 by and among TCM, BR Acquisition Corp. and Bull Run.
(pp) "Newspaper Publishing Business" has the meaning set forth in
the Recitals to this Agreement.
(qq) "Person" means an individual, a partnership, a corporation,
a limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization, or a governmental entity or any
department, agency, or political subdivision thereof.
(rr) "Prime Rate" means the prime rate as published in the Wall
Street Journal on the date of determination.
(ss) "Privilege" has the meaning set forth in Section 6.4(a).
(tt) "Privileged Information" has the meaning set forth in
Section 6.4(a).
(uu) "Promissory Note" has the meaning set forth in Section 6.5.
(vv) "Real Property Lease" has the meaning set forth in Section
2.3(d).
28
(ww) "Record Date" means such date as shall be fixed by the Board
of Directors of Xxxx to determine the holders of Xxxx Common Stock that shall be
entitled to the Distribution.
(xx) "Refinancing" means a financing in which TCM receives gross
proceeds of at least $125.0 million.
(yy) "Retained Assets" has the meaning set forth in Section 1.2.
(zz) "Retained Employees" has the meaning set forth in Section
4.1.
(aaa) "Retirement Plan" has the meaning set forth in Section 4.4.
(bbb) "SEC" has the meaning set forth in Section 3.2(a).
(ccc) "Securities Act" means the Securities Act of 1933, as
amended.
(ddd) "Separation" has the meaning set forth in the Recitals to
this Agreement.
(eee) "Separation Date" has the meaning set forth in Section 2.1.
(fff) "Subsidiary" means with respect to any specified Person,
any corporation, any limited liability company, any partnership, or any other
legal entity of which such Person or its Subsidiaries owns, directly or
indirectly, more than 50% of the stock or other equity interest entitled to vote
on the election of the members of the board of directors or similar governing
body. Unless the context otherwise requires, reference to Xxxx and its
Subsidiaries shall not include Xxxx Publishing and its Subsidiaries, and those
subsidiaries will be treated as Subsidiaries of TCM.
(ggg) "Tax Sharing Agreement" has the meaning set forth in
Section 2.3(c).
(hhh) "TCM" has the meaning set forth in the prelude to this
Agreement
(iii) "TCM 401(k) Plan" has the meaning set forth in Section 4.3.
(jjj) "TCM Assumed Liability" has the meaning set forth in
Section 1.3(b).
(kkk) "TCM Common Stock" has the meaning set forth in the
Recitals to this Agreement.
(lll) "TCM Flex Plan" has the meaning set forth in Section 4.6.
(mmm) "TCM Indemnitee" has the meaning set forth in Section 7.1.
(nnn) "TCM Welfare Plans" has the meaning set forth in Section
4.5(a).
29
(ooo) "Third Party Claim" has the meaning set forth in Section
7.3(b).
(ppp) "Transaction" means the Separation, Distribution and
Merger.
(qqq) "Transferred Employees" has the meaning set forth in
Section 4.1.
(rrr) "WARN Act" has the meaning set forth in Section 4.10.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
30
IN WITNESS WHEREOF, the parties have executed and delivered this
Master Separation and Distribution Agreement effective as of the date first
written above.
XXXX TELEVISION, INC.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: President and Chief Operating
Officer
TRIPLE CROWN MEDIA, INC.
By: /s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx X. Xxxx
Title: Chief Financial Officer and
Secretary
SCHEDULE 1.1(B)
Total Requirement Agreement, dated as of October 1, 2001, by and between Abitibi
Consolidated Sales Corporation and Xxxx Communications Systems, Inc. (now Xxxx
Television, Inc.).
Membership Agreement, dated May 24, 2004, by and between AP and Xxxx
Communications Systems, Inc. (now Xxxx Television, Inc.), for the benefit of
Xxxxxx Citizen.
Membership Agreement by and between AP and Xxxx Communications Systems, Inc.
(now Xxxx Television, Inc.), for the benefit of Albany Herald.
Membership Agreement by and between AP and Xxxx Communications Systems, Inc.
(now Xxxx Television, Inc.), for the benefit of Rockdale Citizen.
Membership Agreement by and between AP and Xxxx Communications Systems, Inc.
(now Xxxx Television, Inc.), for the benefit of Gwinnett Daily Post.
Authorized Independent Sales Professional Agreement, dated as of February 6,
2004, by and between NPCR, Inc. and Xxxx Florida Holdings, Inc. (now Xxxx
Television Group, Inc.)
Authorized Independent Sales Professional Agreement, dated as of September 27,
2000, by and between Nextel South Corp. and Xxxx Florida Holdings, Inc. d/b/a
Porta-Phone (now Xxxx Television Group, Inc.).
Sprint Local Dealer Network Distribution Agreement, dated as of April 15, 2004,
by and between Sprint Spectrum L.P. and Xxxx Television Group, Inc. d/b/a
GrayLink.
Employment Agreement, dated as of October 1, 1996, by and between Xxxx
Communications Systems, Inc. (now Xxxx Television, Inc.), and Xxxxxx Xxxxxx.
Non-compete agreements with all employees in the paging business (the form
indicates that the Xxxx party is Xxxx Television Group, Inc.).
SCHEDULE 1.1(C)
Albany Herald office and production facility in located in Albany, GA (83,000
square feet) Offices for Rockdale Citizen located in Conyers, GA (20,000 square
feet).
Offices and production facility for Goshen News located in Goshen, IN (21,000
square feet).
SCHEDULE 1.2(C)
Xxxx Publishing and Wireless Business
Inter-company Balances
June 30, 2005
INTER-COMPANY ASSET INTER-COMPANY LIABILITY
--------------- --------- --------------- -----------
Graylink 4,607,302 Xxxx Television (4,607,302)
Xxxx Tel Group 714,000 Graylink (714,000)
Rockdale 1,931,869 Xxxx Television (1,931,869)
Albany Herald 5,561,644 Xxxx Television (5,561,644)
WIBW 222 Gwinnett (222)
Xxxx Television 1,066,911 Gwinnett (1,066,911)
Goshen 2,221,286 Xxxx Television (2,221,286)
Xxxx Publishing 350,389 Xxxx Television (350,389)
SCHEDULE 3.3(E)(II)
License Agreement dated as of May 9, 2005 by and between NEWSTEC, Inc. and Xxxx
Publishing, LLC.
Application for Service, Letter of Agency, and Agreement Choice One/US Xchange
dated March 28, 2003.
Sprint Local Dealer Network Distribution Agreement, dated as of April 15, 2004,
by and between Sprint Spectrum L.P. and Xxxx Television Group, Inc. d/b/a
GrayLink.
SCHEDULE 5.5
$223,000
EXHIBIT B
TAX SHARING AGREEMENT
This Tax Sharing Agreement (this "Agreement") is entered into as of August
2, 2005, by and between Xxxx Television, Inc., a Georgia corporation ("Xxxx"),
and Triple Crown Media, Inc., a Delaware corporation ("TCM"). Capitalized terms
used in this Agreement and not otherwise defined in Article I or otherwise
herein shall have the meanings ascribed to such terms in the Separation and
Distribution Agreement, dated as of August 2, 2005, by and between Xxxx and TCM
(the "Separation and Distribution Agreement").
RECITALS
X. Xxxx is the common parent of an "affiliated group" of corporations
within the meaning of Section 1504(a) of the Internal Revenue Code of 1986, as
amended (the "Code"), that has filed consolidated federal income tax returns.
B. TCM is a wholly owned subsidiary of Xxxx.
C. Pursuant to the Separation and Distribution Agreement, among other
things, (i) Xxxx agreed to convey, assign and transfer to TCM the sole
membership interest in Xxxx Publishing and (ii) TCM agreed to distribute $40
million to Xxxx on the Separation Date (collectively, the "Separation").
D. Immediately after the Separation, Xxxx shall make a pro rata
distribution of all of the TCM Common Stock to the holders of the Xxxx Common
Stock (the "Distribution" and, together with the Separation, the
"Reorganization").
X. Xxxx and TCM intend that the Reorganization will qualify as a divisive
reorganization described in Sections 368(a)(1)(D) and that the Distribution will
qualify for nonrecognition treatment under Section 355 of the Code.
X. Xxxx and TCM desire to set forth their rights and obligations with
respect to Taxes (as defined herein) due for periods before and after the
Distribution Date.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I.
DEFINITIONS
1.01 "Affiliate" shall mean any Person that directly or indirectly through
one or more intermediaries Controls, is Controlled by, or is under common
Control with a specified Person.
1.02 "Agreement" shall mean this Tax Sharing Agreement between Xxxx and
TCM, as the same may be amended from time to time.
1.03 "Applicable Federal Rate" shall have the meaning set forth in Section
1274(d) of the Code, compounded quarterly.
1.04 "Code" shall have the meaning set forth in the Recitals.
1.05 "Control" or "Controlled" shall mean, with respect to any Person, the
presence of one of the following: (i) the legal, beneficial or equitable
ownership, directly or indirectly, of more than 50% (by vote or value) of the
capital or voting stock (or other ownership or voting interest, if not a
corporation) of such Person or (ii) the ability, directly or indirectly, to
direct the voting of a majority of the directors of such Person's board of
directors or, if the Person does not have a board of directors, a majority of
the positions on any similar body, whether through appointment, voting agreement
or otherwise.
1.06 "Controlling Party" shall have the meaning set forth in Section 5.01.
1.07 "Distribution" shall have the meaning set forth in the Recitals.
1.08 "Final Determination" shall mean with respect to any issue (a) a
decision, judgment, decree or other order by any court of competent
jurisdiction, which decision, judgment, decree or other order has become final
and not subject to further appeal, (b) a closing agreement whether or not
entered into under Section 7121 of the Code or any other binding settlement
agreement (whether or not with the Internal Revenue Service) entered into in
connection with or in contemplation of an administrative or judicial proceeding,
or (c) the completion of the highest level of administrative proceedings if a
judicial contest is not or is no longer possible.
1.09 "Xxxx" shall have the meaning set forth in the preamble to this
Agreement.
1.10 "Xxxx Group" shall mean Xxxx and all Subsidiaries of Xxxx at any time
following the Separation but shall not include any member of the TCM Group.
1.11 "Xxxx Publishing" shall mean Xxxx Publishing LLC, a Delaware limited
liability company, which is a member of the TCM Group.
1.12 "Xxxx Tainting Act" shall mean (a) any breach of any written
representation relating to the qualification of the Reorganization as a
reorganization described in Section 368(a)(1)(D) of the Code, relating to the
qualification of the Distribution as a transaction described in Section 355 of
the Code, or relating to the treatment of the stock of TCM as "qualified
property" within the meaning of Sections 355(c)(2) and 361(c)(2) of the Code,
which representation is made by Xxxx in that certain officer's certificate of
even date herewith that was provided to King & Spalding LLP in connection with
the tax opinion of King & Spalding LLP described in Section 3.3(g) of the
Separation and Distribution Agreement, or (b) any action, failure to act or
omission by or involving any Person (other than TCM or any other Person that is
an Affiliate of TCM immediately before or immediately after such action, failure
to act, or omission) after the Distribution Date, if such breach, action,
failure to act, or omission contributes to a Final Determination that (i) the
Reorganization failed to qualify as a reorganization under Section 368(a)(1)(D)
of the Code, (ii) the Distribution failed to qualify as a transaction described
in Section 355 of the Code or (iii) the stock of TCM distributed to Xxxx'x
-2-
shareholders failed to qualify as "qualified property" within the meaning of
Sections 355(c)(2) and 361(c)(2) of the Code, including by reason of the
application of Section 355(e) of the Code.
1.13 "Indemnitor" shall have the meaning set forth in Section 5.02.
1.14 "Person" shall mean any individual, partnership, joint venture,
corporation, limited liability company, trust, unincorporated organization,
government or department or agency of a government.
1.15 "Post-Distribution Period" shall mean any taxable year or other
taxable period beginning on or after the Distribution Date and, in the case of
any taxable year or other taxable period that begins before and ends after the
Distribution Date, that part of the taxable year or other taxable period that
begins after the close of the Distribution Date.
1.16 "Pre-Distribution Period" shall mean any taxable year or other taxable
period that ends on or before the Distribution Date and, in the case of any
taxable year or other taxable period that begins before and ends after the
Distribution Date, that part of the taxable year or other taxable period through
the close of the Distribution Date.
1.17 "Reorganization" shall have the meaning set forth in the Recitals.
1.18 "Restructuring Taxes" shall mean any Taxes resulting from or caused by
the Reorganization including, but not limited to, any income Taxes imposed
pursuant to or as a result of Sections 311, 355(c)(2), 357(c), 361(b)(1)(B),
361(b)(3), 361(c)(2), or 455(b)(1) of the Code, Sections 1.1502-13 or 1.1502-19
of the Treasury Regulations, or Section 5.02(5) of Revenue Procedure 2004-23,
2004-22 I.R.B. 991 (or any corresponding or similar provisions of state, local
or non-U.S. income Tax law) and any sales or other transfer Taxes or similar
charges imposed with respect to or as a result of the Reorganization.
1.19 "Separation" shall have the meaning set forth in the Recitals.
1.20 "Separation and Distribution Agreement" shall have the meaning set
forth in the preamble to this Agreement.
1.21 "Subsidiary" shall mean a corporation, limited liability company,
partnership, joint venture or other business entity if 50% or more of the
outstanding equity or voting power of such entity is owned directly or
indirectly by the corporation with respect to which such term is used.
1.22 "Tax" or "Taxes", whether used in the form of a noun or adjective,
shall mean all forms of taxation, whenever created or imposed, including, but
not limited to, taxes on or measured by income, franchise, gross receipts,
sales, use, excise, payroll, personal property (tangible or intangible), real
property, ad valorem, value-added, leasing, leasing use or other taxes, levies,
imposts, duties, charges or withholdings of any nature whether imposed by a
nation, locality, municipality, government, state, federation, or other
governmental body (a "Taxing Authority"). Whenever the term "tax" or "taxes" is
used (including, without limitation, in the context of any duty to reimburse
another party or indemnify for taxes or refunds or credits of taxes) it shall
include penalties, fines, additions to tax and interest thereon.
-3-
1.23 "Taxing Authority" shall have the meaning set forth in the foregoing
definition of the term "Tax."
1.24 "Tax Returns" shall mean all reports, returns, information statements,
questionnaires or other documents required to be filed or that may be filed for
any period with any Taxing Authority (whether domestic or foreign) in connection
with any Tax or Taxes (whether domestic or foreign).
1.25 "TCM" shall have the meaning set forth in the preamble to this
Agreement.
1.26 "TCM Business" shall mean the Newspaper Publishing Business, or the
Graylink Wireless Business, or both businesses.
1.27 "TCM Group" shall mean TCM and all entities that are Subsidiaries of
TCM at any time following the Separation, including without limitation Xxxx
Publishing, Graylink LLC, and Porta-Phone Paging Licensee Corp.
1.28 "TCM Tainting Act" shall mean (a) any breach of any written
representation relating to the qualification of the Reorganization as a
reorganization described in Section 368(a)(1)(D) of the Code, relating to the
qualification of the Distribution as a transaction described in Section 355 of
the Code, or relating to the treatment of the stock of TCM as "qualified
property" within the meaning of Sections 355(c)(2) and 361(c)(2) of the Code,
which representation is made by TCM in that certain officer's certificate of
even date herewith that was provided to King & Spalding LLP in connection with
the tax opinion of King & Spalding LLP described in Section 3.3(g) of the
Separation and Distribution Agreement, or (b) any action, failure to act or
omission by or involving any Person (other than Xxxx or any other Person that is
an Affiliate of Xxxx immediately before or immediately after such action,
failure to act, or omission) after the Distribution Date, if such breach,
action, failure to act, or omission contributes to a Final Determination that
(i) the Reorganization failed to qualify as a reorganization under Section
368(a)(1)(D) of the Code, (ii) the Distribution failed to qualify as a
transaction described in Section 355 of the Code or (iii) the stock of TCM
distributed to Xxxx'x shareholders failed to qualify as "qualified property"
within the meaning of Sections 355(c)(2) and 361(c)(2) of the Code, including by
reason of the application of Section 355(e) of the Code.
ARTICLE II.
TAX RETURNS, TAX PAYMENTS AND TAX SHARING OBLIGATION
2.01 OBLIGATIONS TO FILE TAX RETURNS. Xxxx shall timely file or cause to be
filed all Tax Returns that are required to be filed after the Distribution Date
by or with respect to the TCM Group that (a) are filed on a consolidated,
combined or unitary basis, (b) include both one or more members of the Xxxx
Group and one or more members of the TCM Group, and (c) are for a taxable period
that includes the Pre-Distribution Period. Xxxx also shall timely file or cause
to be filed all other Tax Returns required to be filed by one or more members of
the TCM Group for any taxable period that includes the Pre-Distribution Period,
other than any such Tax Returns relating to sales, use, personal property
(tangible or intangible), real property, and ad valorem Taxes arising in the
Pre-Distribution Period and attributable to a member of the TCM
-4-
Group or to the assets, employees, or transactions of the TCM Business. TCM
shall timely file or cause to be filed all other Tax Returns that are required
to be filed after the Distribution Date by or with respect to the members of the
TCM Group.
2.02 OBLIGATION TO REMIT TAXES. Xxxx and TCM shall each remit or cause to
be remitted to the applicable Taxing Authority any Taxes due in respect of any
Tax for which such party is required to file a Tax Return (or, in the case of a
Tax for which no Tax Return is required to be filed, which is otherwise payable
by such party or a member of such party's group (the Xxxx Group or the TCM
Group) to any Taxing Authority) and shall be entitled to reimbursement for such
payments only to the extent provided in Sections 2.03 and 2.04.
2.03 TAX SHARING OBLIGATIONS AND PRIOR AGREEMENTS.
(a) TCM shall be liable for and shall indemnify and hold the Xxxx
Group harmless against, on a net after Tax basis, (i) any liability for sales,
use, personal property (tangible or intangible), real property, and ad valorem
Taxes arising in the Pre-Distribution Period and attributable to a member of the
TCM Group or to the assets or transactions of the TCM Business, and (ii) any
liability for Taxes of any kind arising in the Post-Distribution Period and
attributable to a member of the TCM Group or to the assets, employees, or
transactions of the TCM Business.
(b) Except for Taxes specifically allocated to TCM under Section
2.03(a) or Section 2.04(b), Xxxx shall be liable for and shall indemnify and
hold the TCM Group harmless against, on a net after Tax basis, any Tax liability
of the Xxxx Group or of the TCM Group.
(c) Except as set forth in this Agreement and in consideration of the
mutual indemnities and other obligations of this Agreement, any and all prior
Tax sharing or allocation agreements or practices between any member of the Xxxx
Group and any member of the TCM Group shall be terminated with respect to the
TCM Group as of the Distribution Date.
(d) TCM shall be entitled to any refund of or credit for Taxes for
which TCM is responsible under this Agreement, and Xxxx shall be entitled to any
refund of or credit for Taxes for which Xxxx is responsible under this
Agreement.
2.04 RESTRUCTURING TAXES; OTHER TAXES RELATING TO THE REORGANIZATION.
(a) RESTRUCTURING TAXES. Notwithstanding any other provision of this
Agreement to the contrary, but subject to Section 2.04(b) below, Xxxx shall pay,
and shall indemnify and hold harmless TCM and any member of the TCM Group from
and against, on a net after Tax basis, any Restructuring Taxes and any
reasonable expenses (including, but not limited to, attorney's fees) incurred in
defending any audit or examination with respect to Restructuring Taxes.
(b) INDEMNIFICATION FOR TCM TAINTING ACTS. TCM covenants that neither
TCM nor any member of the TCM Group shall commit or be party to or the subject
of any TCM Tainting Act. To the extent that any member of the Xxxx Group would
not have been liable for the following amounts but for a TCM Tainting Act, TCM
shall pay, and shall
-5-
indemnify and hold harmless the Xxxx Group from and against, on a net after Tax
basis, any liability of any member of the Xxxx Group attributable to Taxes
imposed upon any member of the Xxxx Group or any other Person (together with any
reasonable expenses (including, but not limited to, attorney's fees) incurred in
defending against any such liability) resulting from a Final Determination that
(i) the Reorganization failed to qualify as a reorganization under Section
368(a)(1)(D) of the Code, (ii) the Distribution failed to qualify as a
transaction described in Section 355 of the Code or (iii) the stock of TCM
distributed to Xxxx'x shareholders failed to constitute "qualified property"
within the meaning of Sections 355(c)(2) and 361(c)(2) of the Code, including by
reason of the application of Section 355(e) of the Code.
(c) INDEMNIFICATION FOR XXXX TAINTING ACTS. Xxxx covenants that
neither Xxxx nor any member of the Xxxx Group shall commit or be party to or the
subject of any Xxxx Tainting Act. To the extent that any member of the TCM Group
would not have been liable for the following amounts but for a Xxxx Tainting
Act, Xxxx shall pay, and shall indemnify and hold harmless the TCM Group from
and against, on a net after Tax basis, any liability of any member of the Xxxx
Group or the TCM Group attributable to Taxes imposed upon any member of the Xxxx
Group, any member of the TCM Group, or any other Person (together with any
reasonable expenses (including, but not limited to, attorney's fees) incurred in
defending against any such liability) resulting from a Final Determination that
(i) the Reorganization failed to qualify as a reorganization under Section
368(a)(1)(D) of the Code, (ii) the Distribution failed to qualify as a
transaction described in Section 355 of the Code or (iii) the stock of TCM
distributed to Xxxx'x shareholders failed to constitute "qualified property"
within the meaning of Sections 355(c)(2) and 361(c)(2) of the Code, including by
reason of the application of Section 355(e) of the Code.
2.05 PERIOD THAT INCLUDES THE DISTRIBUTION DATE.
(a) To the extent permitted by law or administrative practice, the
taxable year of each member of the TCM Group shall be treated as closing at the
close of the Distribution Date.
(b) If it is necessary for purposes of this Agreement to determine the
Tax liability of any member of the TCM Group for a taxable year or period that
begins on or before and ends after the Distribution Date and is not treated
under Section 2.05(a) as closing at the close of the Distribution Date, the
determination shall be made, in the case of Taxes that are based upon income or
receipts, by assuming that the relevant taxable period ended at the close of the
Distribution Date, except that any exemptions, allowances or deductions that are
calculated on an annual basis shall be apportioned on a time basis. In the case
of Taxes that are imposed on a periodic basis, are payable for a taxable period
that includes (but does not end on) the Distribution Date, and are not based
upon or related to income or receipts, the portion of such Tax that relates to
the Pre-Distribution Period shall be deemed to be the amount of such Tax for the
entire taxable period multiplied by a fraction the numerator of which is the
number of days in the taxable period ending on the Distribution Date and the
denominator of which is the number of days in the entire taxable period.
-6-
ARTICLE III.
CARRYBACKS
Without the consent of Xxxx, which shall not be withheld or delayed
unreasonably, no member of the TCM Group shall carry back any net operating loss
or other Tax attribute (unless required to carry back such loss or Tax attribute
by law) from a Post-Distribution Period to a Pre-Distribution Period. Provided
that Xxxx consents to the carryback or if the carryback is required by law, Xxxx
(or any other member of the Xxxx Group receiving such refund) shall promptly
remit to TCM any refunds it receives with respect to any such carryback. Any
refund of Taxes resulting from any such carryback by a member of the TCM Group
shall be payable to TCM. For purposes of this Article III, it shall be deemed
reasonable for Xxxx to withhold its consent to any carryback, or alternatively
to require reasonable monetary compensation for granting such consent, to the
extent that Xxxx determines in good faith that such carryback will cause (i) an
actual increase in the Taxes for which the Xxxx Group is responsible, or (ii) an
actual reduction in the amount of any refund of Taxes payable to the Xxxx Group
or in the amount of any Tax attribute of the Xxxx Group.
ARTICLE IV.
PAYMENTS
4.01 PAYMENTS. Payments due under this Agreement shall be made no later
than thirty (30) days after the receipt or crediting of a refund, the delivery
of notice of payment of a Tax for which the other party is responsible under
this Agreement, or the delivery of notice of a Final Determination which results
in such other party becoming obligated to make a payment hereunder to the other
party hereto. Payments due hereunder, but not made within such 30-day period,
shall be accompanied with interest at a rate equal to the Applicable Federal
Rate from the due date of such payment.
4.02 NOTICE. Xxxx and TCM shall give each other prompt written notice of
any payment that may be due to the provider of such notice under this Agreement.
ARTICLE V.
TAX AUDITS
5.01 GENERAL. Except as provided in Section 5.02, each of TCM and Xxxx
shall have sole responsibility for all audits or other proceedings ("Tax
Controversies") with respect to Tax Returns that it is required to file under
Section 2.01 (the "Controlling Party"). Except as provided in Section 5.02(c) or
Section 5.02(d), the Controlling Party shall have the sole right to contest the
audit or proceeding and to employ advisors of its choice.
5.02 INDEMNIFIED CLAIMS.
(a) Xxxx or TCM shall promptly notify the other in writing as soon as
practicable after receipt by such party of any written communication from a
relevant Taxing Authority that proposes adjustment to a Tax Return that may
result in liability of the other party
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(the "Indemnitor") under this Agreement (a "Proposed Tax Adjustment"). If the
Indemnitor is not also the Controlling Party, the Controlling Party shall
provide the Indemnitor with information about the nature and amounts of the
Proposed Tax Adjustments.
(b) The Indemnitor shall have 30 days after receipt of such notice
from the Controlling Party within which to object to the Proposed Tax
Adjustment. If the Indemnitor does not notify the Controlling Party within such
30 day period that it objects to the Proposed Tax Adjustment, Section 5.02(c)
and Section 5.02(d) below shall not apply, and the Controlling Party shall have
exclusive control over all stages of the Tax Controversy, including full
authority to determine whether and in what manner to contest or compromise the
Proposed Tax Adjustment.
(c) If the Indemnitor notifies the Controlling Party that it objects
to a Proposed Tax Adjustment, then the Controlling Party shall not thereafter
consent to the adjustment or compromise of such Proposed Tax Adjustment without
the consent of the Indemnitor, but shall cooperate with the Indemnitor to
resolve the Proposed Tax Adjustment on a reasonable basis acceptable to the
Indemnitor. Prior to the issuance of any notice raising a Proposed Tax
Adjustment or similar stage in the proceedings, however, the Controlling Party
shall be responsible for the conduct of the audit, including matters pertaining
to such Proposed Tax Adjustment. The Controlling Party shall notify the
Indemnitor in advance of any conferences, meetings, and proceedings pertaining
to the audit and, at its own expense, the Indemnitor shall have the right to
attend all such proceedings with any Taxing Authority, the subject matter of
which is or includes such Proposed Tax Adjustment.
(i) Upon the issuance of a notice of proposed adjustment or
similar stage in the proceedings, the Indemnitor shall assume the conduct of all
further proceedings, with counsel selected by it, at the Indemnitor's sole
expense, insofar as the proceedings relate to a Proposed Tax Adjustment, and
thereafter the Indemnitor and the Controlling Party shall jointly be responsible
for the conduct of proceedings to contest such Proposed Tax Adjustment.
(ii) In the event that the Controlling Party receives a notice of
deficiency from the Internal Revenue Service, or a similar notice from any other
Taxing Authority, and such notice includes one or more Proposed Tax Adjustments,
then:
(A) upon receiving a written request from the Indemnitor,
given no later than a date reasonably necessary to permit preparation and
timely filing of a petition in the United States Tax Court for
redetermination of the deficiency relating to the Proposed Tax Adjustment,
or a court of similar jurisdiction with respect to a Proposed Tax
Adjustment imposed by any other Taxing Authority, the Controlling Party
shall timely file such petition (at the Indemnitor's sole expense); or
(B) If (1) the Indemnitor does not request the Controlling
Party to file a petition for redetermination of the deficiency pursuant to
subsection 5.02(c)(ii)(A) hereof, (2) the Indemnitor requests that the
Controlling Party file a claim for refund of Taxes relating to a Proposed
Tax Adjustment, and (3) the Indemnitor provides the Controlling Party with
sufficient funds to pay the deficiency relating to the Proposed Tax
Adjustment, then the Controlling Party (at the Indemnitor's sole expense)
-8-
shall file a claim for refund thereof and, if the claim is denied, bring an
action in a court of competent jurisdiction seeking such refund.
(C) In the event that a judgment of the United States Tax
Court or other court of competent jurisdiction results in an adverse
determination with respect to the Proposed Tax Adjustment, then the
Indemnitor shall have the right to cause the Controlling Party to appeal
from such adverse determination at the Indemnitor's sole expense.
(D) The Indemnitor and its representatives, at the
Indemnitor's sole expense, shall be entitled to the extent permitted by law
to participate in (1) all conferences, meetings, or proceedings with any
Taxing Authority, the subject matter of which is a Proposed Tax Adjustment,
and (2) all appearances before any court, the subject matter of which is a
Proposed Tax Adjustment. The right to participate referred to in this
subsection 5.02(c)(ii)(D) hereof shall include matters such as the
submission and content of documentation, memoranda of fact and law and
briefs, the conduct of oral arguments or presentations, the selection of
witnesses, and the negotiation of stipulations of fact with respect to a
Proposed Tax Adjustment.
(d) If a notice of proposed adjustment raises both one or more issues
that would result in Taxes for which the Controlling Party is liable under this
Agreement in addition to one or more issues that constitute Proposed Tax
Adjustments for which any other party is liable under this Agreement, then the
Controlling Party and the Indemnitor shall cooperate with each other to allow
each party to conduct the Tax Controversy with respect to those issues that
would result in Taxes for which such party is liable under this Agreement. Each
party shall bear the expense of conducting the Tax Controversy with respect to
the issues that would result in Taxes for which such party is liable under this
Agreement.
ARTICLE VI.
COOPERATION
Xxxx and TCM shall cooperate with each other in the filing of any Tax Returns
and the conduct of any audit or other proceeding and each shall execute and
deliver such powers of attorney and make available such other documents as are
reasonably necessary to carry out the intent of this Agreement. Each party
agrees to notify the other party in writing of any audit adjustments which do
not result in Tax liability but can be reasonably expected to affect Tax Returns
of the other party, or any of its Subsidiaries, for a Post-Distribution Period.
Unless and until there has been a Final Determination to the contrary, each
party agrees to treat the Reorganization as a reorganization qualifying under
Section 368(a)(1)(D) of the Code and the Distribution as a transaction
qualifying under Section 355 of the Code.
-9-
ARTICLE VII.
RETENTION OF RECORDS; ACCESS
The Xxxx Group and the TCM Group shall (a) in accordance with their then current
record retention policy, retain records, documents, accounting data and other
information (including computer data) necessary for the preparation and filing
of all Tax Returns in respect of Taxes of the Xxxx Group or the TCM Group for
any Pre-Distribution Period or for the audit of such Tax Returns; and (b) give
to the other reasonable access to such records, documents, accounting data and
other information (including computer data) and to its personnel (insuring their
cooperation) and premises, for the purpose of the review or audit of such Tax
Returns to the extent relevant to an obligation or liability of a party under
this Agreement. At any time after the Distribution Date that the TCM Group
proposes to destroy such material or information, they shall first notify the
Xxxx Group in writing and the Xxxx Group shall be entitled to receive such
materials or information proposed to be destroyed. At any time after the
Distribution Date that the Xxxx Group proposes to destroy such material or
information, they shall first notify the TCM Group in writing and the TCM Group
shall be entitled to receive such materials or information proposed to be
destroyed.
ARTICLE VIII.
TERMINATION OF LIABILITIES
Notwithstanding any other provision in this Agreement, any liabilities
determined under this Agreement shall not terminate any earlier than the
expiration of the applicable statute of limitation for such liability. All other
covenants under this Agreement shall survive indefinitely.
ARTICLE IX.
DISPUTE RESOLUTION; MISCELLANEOUS PROVISIONS
To the extent not inconsistent with any specific term of this Agreement, the
following sections of the Separation and Distribution Agreement shall apply in
relevant part to this Agreement: 6.3 (Privileged Matters), 8 (Dispute
Resolution), 9.6 (Amendment), 9.7 (No Third-Party Beneficiaries), 9.8 (Governing
Law), 9.10 (Notices), 9.11 (Counterparts), 9.12 (Binding Effect and Assignment),
9.13 (Severability), 9.14 (Failure and Remedies), 9.15 (Authority), 9.16
(Interpretation).
-10-
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
XXXX TELEVISION, INC.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: President and Chief Operating
Officer
TRIPLE CROWN MEDIA, INC.
By: /s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx X. Xxxx
Title: Chief Financial Officer and
Secretary
-11-
EXHIBIT C
FORM OF RULE 145 AFFILIATE AGREEMENT
[-], 2005
Triple Crown Media
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
I have been advised that, as of the date of this letter, I may be
deemed to be an "affiliate" of Bull Run Corporation, a Georgia corporation (the
"Company"), as the term "affiliate" is defined for purposes of paragraphs (c)
and (d) of Rule 145 of the rules and regulations (the "Rules and Regulations")
of the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Act"). I have been further advised
that, pursuant to the terms of the Agreement and Plan of Merger dated as of [-],
2005 (the "Merger Agreement") by and among Triple Crown Media, Inc., a Delaware
corporation ("Buyer"), BR Acquisition Corp., a Delaware corporation and a wholly
owned subsidiary of Buyer ("Merger Sub"), and the Company, the Company will be
merged with and into Merger Sub (the "Merger") and that, as a result of the
Merger, I may receive TCM Capital Stock (as such term is defined in the Merger
Agreement) in exchange for shares of Company Capital Stock (as defined in the
Merger Agreement) owned by me.
I hereby represent, warrant and covenant to Buyer that in the event I
receive any TCM Capital Stock as a result of the Merger:
a. I will not offer, sell, transfer, pledge, hypothecate or otherwise
dispose of, or reduce the undersigned's interest in or risk relative
to, any shares of TCM Capital Stock issued to the undersigned in the
Merger unless at such time either (i) such transaction shall be
permitted pursuant to the provisions of Rule 145 under the Securities
Act; (ii) the undersigned shall have furnished to the Buyer an opinion
of counsel, satisfactory to the Buyer, to the effect that no
registration under the Securities Act would be required in connection
with the proposed offer, sale, transfer, pledge, hypothecation or other
disposition; or (iii) a registration statement under the Securities Act
covering the proposed offer, sale, transfer, pledge, hypothecation or
other disposition shall be effective under the Securities Act.
b. I understand that Buyer is under no obligation to register the sale,
transfer or other disposition of TCM Capital Stock by me or on my
behalf under the Act.
c. I also understand that stop transfer instructions will be given to
Buyer's transfer agent with respect to shares of TCM Capital Stock
issued to me and that there will be placed on
the certificates for such shares of TCM Capital Stock issued to me, or
any substitutions therefor, a legend stating in substance:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN
A TRANSACTION TO WHICH RULE 145 PROMULGATED UNDER THE
SECURITIES ACT OF 1933 APPLIES. THE SHARES REPRESENTED BY THIS
CERTIFICATE MAY ONLY BE SOLD OR OTHERWISE TRANSFERRED IN
ACCORDANCE WITH THE TERMS OF AN AGREEMENT DATED [-], 2005
BETWEEN THE REGISTERED HOLDER HEREOF AND TRIPLE CROWN MEDIA,
INC., A COPY OF WHICH AGREEMENT IS ON FILE AT THE PRINCIPAL
OFFICES OF TRIPLE CROWN MEDIA, INC."
d. I also understand that unless the transfer by me of my TCM Capital
Stock has been registered under the Act or is a sale made in conformity
with the provisions of Rule 145, Buyer reserves the right to put the
following legend on the certificates issued to my transferee:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AND WERE ACQUIRED
FROM A PERSON WHO RECEIVED SUCH SHARES IN A TRANSACTION TO
WHICH RULE 145 PROMULGATED UNDER THE SECURITIES ACT OF 1933
APPLIES. THE SHARES HAVE BEEN ACQUIRED BY THE HOLDER NOT WITH
A VIEW TO, OR FOR RESALE IN CONNECTION WITH, ANY DISTRIBUTION
THEREOF WITHIN THE MEANING OF SECURITIES ACT OF 1933 AND MAY
NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN
ACCORDANCE WITH AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OF 1933."
It is understood and agreed that the legends set forth in paragraphs
(c) and (d) above shall be removed by delivery of substitute certificates
without such legend if the undersigned shall have delivered to Buyer a copy of a
letter from the staff of the Commission, or an opinion of counsel in form and
substance reasonably satisfactory to Buyer, to the effect that such legend is
not required for purposes of the Act.
Very truly yours,
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