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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. )*
Orion Network Systems, Inc.
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, par value $.01
- --------------------------------------------------------------------------------
(Title of Class of Securities)
68628K104
(CUSIP Number)
Eric J. Zahler, Vice President, Secretary and General Counsel,
Loral Space & Communications Ltd.,
600 Third Avenue, New York, New York 10016
(212) 697-1105
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
October 7, 1997
--------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box.
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-l(a) for other parties to whom copies are to be
sent. [ ]
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
SCHEDULE 13D
- --------------------- -----------------------
CUSIP No. 68628K104 Page 2 of 8 Pages
- --------------------- -----------------------
- ----------- --------------------------------------------------------------------
1 NAME OF REPORT PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Loral Space & Communications Ltd.
- ----------- --------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
- ----------- --------------------------------------------------------------------
3 SEC USE ONLY
- ----------- --------------------------------------------------------------------
4 SOURCE OF FUNDS*
00
- ----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
- ----------- --------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Bermuda
- ---------- ---------- --------- ------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF SHARES
BENEFICIALLY 588,235
OWNED BY EACH
REPORTING --------- ------------------------------------------------
PERSON WITH
8 SHARED VOTING POWER
10,488,038
--------- ------------------------------------------------
9 SOLE DISPOSITIVE POWER
588,235
--------- ------------------------------------------------
10 SHARED DISPOSITIVE POWER
10,488,038
- ----------- --------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
11,076,273
- ----------- --------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [ ]
- ----------- --------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
44.7%
- ----------- --------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- ----------- --------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
--------------------- -----------------------
CUSIP No. 68628K104 Page 3 of 8 Pages
- --------------------- -----------------------
----------- -------------------------------------------------------------------
1 NAME OF REPORT PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Loral Satellite Corporation
----------- -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
----------- -------------------------------------------------------------------
3 SEC USE ONLY
----------- -------------------------------------------------------------------
4 SOURCE OF FUNDS*
00
----------- -------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
----------- -------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
--------------------- -------- ------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF SHARES
BENEFICIALLY 588,235
OWNED BY EACH
REPORTING -------- ------------------------------------------------
PERSON WITH 8 SHARED VOTING POWER
10,488,038
-------- ------------------------------------------------
9 SOLE DISPOSITIVE POWER
588,235
-------- ------------------------------------------------
10 SHARED DISPOSITIVE POWER
10,488,038
----------- -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
11,076,273
----------- -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [ ]
----------- -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
44.7%
----------- -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
----------- -------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
Explanatory Note:
- ----------------
As a result of executing a Principal Stockholder Agreement
dated as of October 7, 1997 (the "Agreement") with the stockholders listed on
Exhibit A to the Agreement (the "Orion Stockholders"), Loral Space &
Communications Ltd. ("Parent" or "Loral") and Loral Satellite Corporation, a
wholly owned subsidiary of Parent ("Sub") may be deemed, for the purposes of
Section 13(d) of the Securities Exchange Act of 1934 (the "Exchange Act"), to
have formed a "group" with the Orion Stockholders.
The information regarding the Orion Stockholders contained in
this Statement on Schedule 13D is provided to the best knowledge of Parent and
Sub and, unless otherwise indicated, is based on information provided to Parent
and Sub by the Orion Stockholders.
Item 1. Security and Issuer
- ------- -------------------
This statement on Schedule 13D (this "Statement") relates to
shares of Common Stock, $.01 par value per share (the "Common Stock"), of Orion
Network Systems, Inc., a Delaware corporation (the "Issuer"), and is being filed
by Loral. The principal executive offices of the Issuer are located at 2440
Research Boulevard, Suite 400, Rockville, MD 20850.
Item 2. Identity and Background
- ------- ------------------------
(a) - (c) and (f). This Statement is filed by and on behalf of
Loral, a Bermuda company and Sub, a Delaware corporation. Loral is engaged in
the space and telecommunications business and has its principal office at 600
Third Avenue, New York, New York 10016. Sub is organized under the laws of the
State of Delaware, and its principal business address is 600 Third Avenue, New
York, New York 10016. Sub was organized for the purpose of consummating the
transactions contemplated under the Merger Agreement (as defined below).
The name, citizenship, business address, position and present principal
occupation of each of the executive officers and directors of Loral are set
forth in Schedule I of this Statement and the position and principal occupation
of the directors and executive officers of Sub (together with the executive
officers of Loral, the "Executive Officers and Directors") are set forth in
Schedule II of this Statement.
None of the other persons named in Schedule I and Schedule II, to the
best knowledge of Loral and Sub, beneficially owns for purposes of Section 13(d)
of the Securities Exchange Act of 1934 ("Beneficially Owns") shares of Common
Stock.
(d) and (e). During the last five years, neither Loral or Sub, nor, to
the best knowledge of Loral and Sub, any of the persons named in Schedule I and
Schedule II to this Statement, has or have been (i) convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors) or (ii) a
party to a civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject to a judgment,
decree or final order enjoining future violations of, or prohibiting or
- 4 of 8-
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mandating activities subject to, United States federal or state securities
laws or finding any violations with respect to such laws.
Item 3. Source and Amount of Funds or Other Considerations
- ------- --------------------------------------------------
Pursuant to the Agreement, a copy of which is attached as Exhibit 1
hereto, Parent and Sub have an option (the "Option"), exercisable only in
certain circumstances which have not yet occurred, to acquire from the Orion
Stockholders (i) 7,596,815 shares of Common Stock (after giving effect to the
conversion of the Issuer's Convertible Junior Subordinated Debentures due
February 1, 2012 (the "Debentures") into shares of Common Stock, as required by
the Agreement), (ii) 707,880 shares of the Issuer's Series A 8% Cumulative
Redeemable Convertible Preferred Stock ("Series A Stock"), (iii) 196,433 shares
of the Issuer's Series B 8% Cumulative Redeemable Convertible Preferred Stock
("Series B Stock"), and (iv) 3,007,770 shares of the Issuer's Series C 6%
Cumulative Redeemable Convertible Preferred Stock (the "Series C Stock, and
together with the Series A Stock and Series B Stock, the "Preferred Stock"). The
Preferred Stock is convertible into 3,911,494 shares of Common Stock. In
addition, each Orion Stockholder has agreed to vote its Common Stock and
Preferred Stock (the "Shares") in favor of the transactions contemplated by the
Merger and against certain actions that may be adverse to the consummation of
the Merger, and has agreed to appoint Parent and Sub as its attorney and proxy
(the "Proxy") for such purpose. The Shares represent approximately 32.6% of the
voting stock of the Issuer outstanding as of September 30, 1997.
Upon exercise of the Option, each Orion Stockholder shall receive the
number of fully paid and nonassessable shares (as adjusted in accordance with
the Merger Agreement) of Common Stock of Parent, $.01 par value per share
("Parent Shares"), equal to the number of Shares to be purchased by Parent
multiplied by the Exchange Ratio (as defined in the Merger Agreement), together
with the associated rights (the "Rights") under Parent's Rights Agreement
("Parent Rights Plan") dated as of March 27, 1996, between Parent and the Bank
of New York, as Rights Agent. Execution and delivery of the Agreement by the
Orion Stockholders was a condition to the execution of the Agreement and Plan of
Merger, dated as of October 7, 1997, by and among Parent, Sub and the Issuer
(the "Merger Agreement"), a copy of which is attached as Exhibit 2 hereto.
In addition, Space Systems/Loral, Inc. ("SS/L"), a wholly-owned
subsidiary of Loral, Beneficially Owns, and has sole voting and dispositive
power over 588,235 shares of Common Stock, as reported on the Schedule 13G filed
by SS/L on January 20, 1997 (the "Schedule 13G").
As a result of the Option and the Common Stock held by SS/L, Parent and
Sub Beneficially Own an aggregate of 11,076,273 shares of Common Stock, or 44.7%
of the Common Stock outstanding (after giving effect to the exercise of the
Option (including the conversion of the Debentures into shares of Common Stock,
as required by the Agreement) and conversion of the Preferred Stock obtained
thereby and including the shares of Common Stock held by SS/L), or 35.3% (as a
result of the Proxy and the Common Stock held by SS/L, excluding the shares of
Common Stock underlying the Debentures).
- 5 of 8-
<PAGE>
Item 4. Purpose of Transaction.
- ------- -----------------------
On October 7, 1997, Parent, Sub and the Orion Stockholders entered into
the Agreement. Pursuant to the terms of the Agreement, each Orion Stockholder
granted Parent and Sub an Option to purchase all of the Shares held by such
Orion Stockholder on the date of exercise of the Option ( including shares of
Common Stock underlying the Debentures, which are required to be converted into
Common Stock prior to the exercise of the Option) for the number of fully paid
and nonassessable Parent Shares equal to the number of Shares to be purchased by
Parent multiplied by the Exchange Ratio (as defined in the Merger Agreement),
together with the Rights. Pursuant to the Agreement, Parent and Sub have the
right to acquire all of the Shares Beneficially Owned by the Orion Stockholders
(with certain exceptions indicated in the footnotes to Exhibit A to the
Agreement) in exchange for Parent Shares and the Rights. In addition, each Orion
Stockholder has agreed to vote in favor of the transactions contemplated by the
Merger, and against certain actions that may be adverse to the consummation of
the Merger, and has agreed to appoint Parent and Sub as its Proxy for such
purpose. The Shares represent approximately 32.6% of the voting stock of the
Issuer outstanding as of September 30, 1997.
The purpose of the transactions under the Agreement is to enable Parent
and Sub to consummate the transactions contemplated under the Merger Agreement.
Pursuant to the terms of the Merger Agreement, Sub will merge (the "Merger")
with and into the Issuer, and the Issuer will be the surviving corporation. The
Directors of Merger Sub immediately prior to the consummation of the Merger
shall be the initial Directors of the surviving corporation.
Upon consummation of the Merger, the Shares would cease to be
authorized to be quoted on the Nasdaq National Market and would become eligible
for termination of registration pursuant to Section 12(g)(4) of the Exchange
Act.
Except as otherwise set forth in this Item 4, neither Parent nor Sub
has any present plans or proposals which relate to or would result in (i) the
acquisition by any person of additional securities of the Issuer, or the
disposition of securities of the Issuer; (ii) an extraordinary corporate
transaction, such as a merger, reorganization or liquidation, involving the
Issuer or any of its subsidiaries; (iii) a sale or transfer of a material amount
of assets of the Issuer or any of its subsidiaries; (iv) any change in the
present Board of Directors or management of the Issuer; (v) any material change
in the present capitalization or dividend policy of the Issuer; (vi) any other
material change in the Issuer's charter, by-laws or instruments corresponding
thereto or other actions which may impede the acquisition of control of the
Issuer by any person; (viii) causing the Shares to cease to be authorized to be
quoted or the National Market System of the National Association of Securities
Dealers Automated Quotation System; (ix) the Shares becoming eligible for
termination of registration pursuant to Section 12(g)(4) of the Exchange Act; or
(x) any action similar to any of those actions set forth in this Paragraph.
- 6 of 8-
<PAGE>
Item 5. Interest in Securities of Issuer.
- ------- ---------------------------------
(a) and (b). Parent and Sub have an Option, exercisable only
in certain circumstances which have not yet occurred, to acquire from the Orion
Stockholders 3,571,429 shares of Common Stock (after giving effect to the
conversion of the Debentures into shares of Common Stock, as required by the
Agreement) and shares of Preferred Stock convertible into 3,911,494 shares of
Common Stock. Based upon the representations of the Issuer contained in the
Merger Agreement, there were 11,675,436 shares of Common Stock issued and
11,406,162 shares outstanding as of September 30, 1997. If Parent or Sub were to
exercise the Option and convert the Preferred Stock obtained thereby into shares
of Common Stock, Parent or Sub, as the case may be, would Beneficially Own
11,076,273 shares of Common Stock, equal to 43.4% of the outstanding Common
Stock (after giving effect to such exercise and conversion and including shares
of Common Stock held by SS/L). When and if Parent acquires the Shares subject to
the Option, Parent or Sub, as the case may be, would have sole voting and
investment power with respect thereto.
Pursuant to the Agreement, each Orion Stockholder has agreed to vote
its Shares at any meeting of the Issuer's stockholders or any adjournment or
postponement thereof or pursuant to any consent in lieu of a meeting or
otherwise, among other things, in favor of the Merger Agreement and against any
proposal for any recapitalization, merger (other than the Merger), sale of
assets or other business combination between the Issuer and any person or entity
(other than Parent or Sub), any amendment to the Company's or its Subsidiaries'
charters or By-laws or any other action which is intended to, or could
reasonably be expected, to impede, interfere with, delay, postpone, or
materially adversely affect the Merger and the transactions contemplated by the
Merger Agreement. In addition, each of the Orion Stockholders have agreed to
appoint Parent and Sub as its Proxy. The Shares represent approximately 32.6% of
the voting stock of the Company outstanding as of September 30, 1997.
Accordingly, Loral and Sub Beneficially Own (without regard to the Option and
excluding the shares of Common Stock underlying the Debentures), as a result of
the Proxy and the Common Stock by SS/L (as described below), 35.3% of the voting
stock of the Issuer outstanding as of September 30, 1997.
SS/L, a wholly-owned subsidiary of Loral, Beneficially Owns,
and has sole voting and dispositive power over 588,235 shares of Common Stock,
as reported on the Schedule 13G.
Other than the Option, Proxy and the Common Stock held by SS/L, all as
described above, neither Parent, Sub nor any of their respective subsidiaries
Beneficially Owns any Shares. To the best knowledge of Parent and Sub, none of
Parent's or Sub's Executive Officers and Directors Beneficially Own any Shares.
Parent and Sub disclaim Beneficial Ownership of the Shares and, notwithstanding
anything to the contrary contained in this Schedule 13D, and in accordance with
Rule 13d-4 promulgated under the Act, the filing of this Schedule 13D shall not
be construed as an admission that Parent or Sub is the Beneficial Owner of the
Shares.
(c) There have been no transactions in the Common Stock or, to the best
knowledge of Parent and Sub, by any of Parent's or Sub's Executive Officers and
Directors, during the past 60 days.
- 7 of 8-
<PAGE>
(d) To the knowledge of Parent and Sub, the right to receive dividends
with respect to the Common Stock to which this Schedule 13D relates, and the
power to direct the receipt of dividends from, or the proceeds of the sale of,
such Common Stock held by each of the Orion Stockholders are held by such Orion
Stockholder as reflected on Exhibit A to the Agreement.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
- ------ -------------------------------------------------------------
Other than the Merger Agreement described in response to Item 4 and the
Agreement described in response to Item 3 and the transactions contemplated
thereby, there are no contracts, arrangements, understandings or relationships
between Parent or Sub and any other person, or, to the best knowledge of Parent
and Sub, among any of Parent's or Sub's Executive Officers and Directors or
between any of Parent's or Sub's Executive Officers and Directors and any other
person, with respect to the Common Stock.
Item 7. Material to Be Filed as Exhibits.
- ------- ---------------------------------
Exhibit 1 Principal Stockholder Agreement dated as of October 7, 1997
Exhibit 2 Agreement and Plan of Merger dated as of October 7, 1997
Exhibit 3 Joint Filing Agreement dated as of October 17, 1997
- 8 of 8-
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: October 17, 1997
LORAL SPACE & COMMUNICATIONS LTD.
By:/s/ Eric J. Zahler
---------------------------------
Name: Eric J. Zahler
Title: Vice President, Secretary
and General Counsel
LORAL SATELLITE CORPORATION
By:/s/ Eric J. Zahler
---------------------------------
Name: Eric J. Zahler
Title: Vice President, Secretary
and General Counsel
- 9 of 8-
<PAGE>
SCHEDULE I
Set forth below is the name, position, present principal occupation and
amount of beneficial interest in the Common Stock, if any, of the directors and
executive officers of Loral Space & Communications Ltd. Except as set forth
below, the business address of each of these persons is c/o Loral Space &
Communications Ltd., 600 Third Avenue, New York, New York 10016. Each such
person is a citizen of the United States.
Directors and Executive Officers of Loral Space &
-------------------------------------------------
Communications Ltd.
-----------------
Name and Position in Number of Shares
addition to Present Present Principal Owned and Aggregate Percentage
Principal Occupation Occupation Purchase Price Interest
----------------- ------------------- -----------
Bernard L. Schwartz Chairman of the Board
of Directors and
Chief Executive 0 N/A
Officer
Michael B. Targoff President and Chief
Operating Officer 0 N/A
Howard Gittis, Vice Chairman and Chief 0 N/A
Director Administrative Officer
of MacAndrews
& Forbes Holdings, Inc.
35 E. 62nd St.
New York, NY 10021
Robert B. Hodes,
Director Counsel to 0 N/A
Willkie Farr & Gallagher
153 East 53rd St.
New York, NY 10022
Gershon Kekst, President of Kekst and
Director Company, Inc. 0 N/A
437 Madison Ave.
New York, NY 10022
Charles Lazarus, Chairman and Director of
Director Toys "R" Us, Inc. 0 N/A
461 From Road
Paramus, NJ 07652
I-1
<PAGE>
Name and Position in Number of Shares
addition to Present Present Principal Owned and Aggregate Percentage
Principal Occupation Occupation Purchase Price Interest
- -------------------- ----------------- ------------------- -----------
Malvin A. Ruderman, Professor of Physics, 0 N/A
Director Columbia University
29 Washington Sq. West
New York, NY 10011
E. Donald Shapiro, Professor of Law 0 N/A
Director New York Law School
57 Worth Street
New York, NY 10013
Arthur L. Simon, Independent consultant 0 N/A
Director 971 Haverstraw Road
Suffern, NY 10901
Thomas J. Stanton, Chairman Emeritus of National 0 N/A
Jr., Director Westminster Bancorp NJ
240 South Mountain Ave.
Montclair, NJ 07042
Daniel Yankelovich, Chairman of DYG, Inc. 0 N/A
Director 21 Holiday Point Rd.
Sherman, CT 06784
Laurence D. Atlas Vice President, Government 0 N/A
Relations-Telecommunications
Robert E. Berry Senior Vice President 0 N/A
Jeanette H. Clonan Vice President, Communications 0 N/A
and Investor Relations
Michael P. DeBlasio Senior Vice President and 0 N/A
Chief Financial Officer
Stephen L. Jackson Vice President, Administration 0 N/A
Jerald A. Lindfelt Vice President, Business 0 N/A
Operations
Nicholas C. Moren Vice President and Treasurer 0 N/A
I-2
<PAGE>
Name and Position in Number of Shares
addition to Present Present Principal Owned and Aggregate Percentage
Principal Occupation Occupation Purchase Price Interest
- -------------------- ----------------- ------------------- -----------
Harvey B. Rein Vice President 0 N/A
and Controller
Thomas B. Ross Vice President, 0 N/A
Government Relations
Eric J. Zahler Vice President, General 0 N/A
Counsel and Secretary
I-3
<PAGE>
SCHEDULE II
Set forth below is the name, position, present principal occupation and
amount of beneficial interest in the Common Stock, if any, of the directors and
executive officers of Loral Satellite Corporation. Except as set forth below,
the business address of each of these persons is c/o Loral Space &
Communications Ltd., 600 Third Avenue, New York, New York 10016. Each such
person is a citizen of the United States.
Directors and Executive Officers of Loral Space &
--------------------------------------------------
Communications Ltd.
---------------------
Name and Position in Number of Shares
addition to Present Present Principal Owned and Aggregate Percentage
Principal Occupation Occupation Purchase Price Interest
- -------------------- ----------------- ------------------- -----------
Bernard L. Schwartz, Chairman of the Board 0 N/A
Director and Chief Executive
Officer
Michael B. Targoff, President 0 N/A
Director
Michael P. DeBlasio Senior Vice President 0 N/A
Eric J. Zahler, Vice President and 0 N/A
Director Secretary
Nicholas C. Moren Vice President and 0 N/A
Treasurer
Harvey B. Rein Vice President and 0 N/A
Controller
<PAGE>
EXHIBIT INDEX
Exhibit 1 Principal Stockholder Agreement dated October 7, 1997
Exhibit 2 Agreement and Plan of Merger dated October 7, 1997
Exhibit 3 Joint Filing Agreement dated as of October 17, 1997
<PAGE>
PRINCIPAL STOCKHOLDER AGREEMENT
THIS PRINCIPAL STOCKHOLDER AGREEMENT, dated as of October 7th, 1997
(this "Agreement") among Loral Space & Communications Ltd., a Bermuda company
("Acquiror"), Loral Satellite Corporation, a Delaware corporation, a wholly
owned subsidiary of Acquiror ("Sub"), Orion Network Systems, Inc., a Delaware
corporation ("Company"), and each other person and entity listed on the
signature pages hereof (each, a "Stockholder").
WHEREAS, as of the date hereof, each Stockholder holds of record or
beneficially owns the number of shares of common stock, $.01 par value (the
"Common Stock") of the Company set forth opposite such Stockholder's name on
Exhibit A;
WHEREAS, as of the date hereof, certain Stockholders also hold of
record or beneficially own the number of shares of the Company's Series A 8%
Cumulative Redeemable Convertible Preferred Stock ("Series A Shares"), Series B
8% Cumulative Redeemable Convertible Preferred Stock ("Series B Shares"), and/or
Series C 6% Cumulative Redeemable Convertible Preferred Stock ("Series C Shares,
and together with the Series A Shares and Series B Shares, the "Preferred
Stock"), set forth opposite such Stockholder's name on Exhibit A (all such
Preferred Stock, together with all shares of Common Stock currently held and all
shares of Common Stock and Preferred Stock hereafter acquired by the
Stockholders (including but not limited to shares acquired upon the exercise of
options, warrants or rights or the conversion or exchange of convertible or
exchangeable securities) being referred to herein as the "Shares");
WHEREAS, as of the date hereof, certain Stockholders also hold the
Company's Convertible Junior Subordinated Debentures due February 1, 2012 (the
"Debentures") in the principal amount set forth opposite such Stockholder's name
on Exhibit A;
WHEREAS, Acquiror, Sub and the Company have entered into an Agreement
and Plan of Merger dated as of the date hereof (the "Merger Agreement";
capitalized terms used but not otherwise defined in this Agreement have the
meanings assigned to such terms in the Merger Agreement), which provides, upon
the terms and subject to the conditions set forth therein, for the merger of Sub
with and into the Company (the "Merger");
1
<PAGE>
WHEREAS, as a condition to the willingness of Acquiror and Sub to
enter into the Merger Agreement and in furtherance of the acquisition of the
Company by Acquiror, Acquiror and Sub have required that the Stockholders agree,
and in order to induce Acquiror and Sub to enter into the Merger Agreement, each
Stockholder has agreed, severally and not jointly, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and
agreements contained herein, the parties hereto agree as follows:
Article I.
GRANT OF OPTION AND EXERCISE; TRANSFER AND
VOTING OF SHARES; DEBENTURES
Section 1.1. Grant of Option.
Subject to the terms and conditions set forth herein, each Stockholder
hereby severally and not jointly grants to Acquiror an irrevocable option (the
"Option") to purchase all (but not less than all) of such Stockholder's Shares
held on the date of option exercise (and to require the conversion of all (but
not less than all) of such Stockholder's Debentures into Shares immediately
prior to the Closing (defined in Section 1.3 below) hereunder, and upon such
conversion such Shares shall be subject to the Option hereunder) for the number
of fully paid and nonassessable Acquiror Shares (as adjusted pursuant to Section
2.5 of the Merger Agreement) equal to the number of Shares to be purchased by
Acquiror multiplied by the Exchange Ratio (calculated using the Notice Date as
if it were the "Closing Date" (as defined in the Merger Agreement) for purposes
of calculating the Determination Price), together with the associated rights
under Acquiror's Rights Agreement ("Acquiror Rights Plan") dated as of March 27,
1996 between Acquiror and The Bank of New York, as Rights Agent (together, the
"Purchase Price").
Section 1.2. Exercise of Option.
(a) Provided that neither Acquiror nor Sub shall be in material breach
of their respective agreements or covenants contained in the Merger Agreement,
Acquiror may exercise the Option, in whole (but not in part) with respect to all
of the Shares of all of the Stockholders covered hereby (but not less than all),
at any time following the occurrence of any event described in Section 1.9 (a
"Purchase Event"); provided that, the Option shall terminate
2
<PAGE>
and be of no further force and effect upon the earliest to occur of (i) the
Effective Time, (ii) June 30, 1998, or (iii) termination of the Merger Agreement
by Acquiror or Sub in accordance with the terms thereof.
(b) If Acquiror exercises the Option hereunder (except following
termination of the Merger Agreement by the Company) (i) neither Acquiror nor Sub
shall terminate the Merger Agreement under any circumstances except Section
9.1(a) (with approval of the Company) and Section 9.1(c) of the Merger
Agreement, (ii) all conditions set forth in Section 8.2 and Section 8.3 (other
than Section 8.2(c) and Section 8.3(c), but it is understood and agreed that
receipt of an initial FCC order shall be deemed to satisfy Section 8.2(c) and
Section 8.3(c) for this purpose) of the Merger Agreement shall be deemed waived
by each of Acquiror, Sub, and the Company, respectively, (iii) Acquiror and Sub
shall each use their reasonable best efforts to consummate the Merger (or the
Exchange Offer as applicable) as promptly as practicable, except to the extent
that (and so long as) consummation of the Merger (or the Exchange Offer as
applicable) would violate applicable law (and if consummation of the Merger
would violate applicable law, but conducting the Exchange Offer would not
violate applicable law, Acquiror shall conduct the Exchange Offer pursuant to
the requirements of Section 7.15 (including Section 7.15(g)), except as
otherwise provided in this paragraph rather than the Merger).
(c) If following the exercise of the Option there is an Acquisition
Proposal pending prior to consummation of the Merger or the Exchange Offer, and
such Acquisition Proposal includes a per Share price higher than the per Share
consideration to be paid in the Merger or the Exchange Offer as applicable (a
"Topping Bid"), Acquiror shall have the right to tender the Shares purchased
under the Option into the Topping Bid or otherwise support the Topping Bid and
realize value therefrom, and Acquiror's obligations under the Merger Agreement
(and Section 1.6 hereof) shall (if not previously terminated) be suspended
during the pendency of the Topping Bid; provided, however, that such obligations
shall cease to be suspended if the Topping Bid ceases to be pending without a
majority of the Shares having been acquired pursuant to the Topping Bid.
Section 1.3. Closing Date.
In the event Acquiror wishes to exercise the Option, which may only be
exercised in whole (but not in part), with respect to all of the Shares of all
of the
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Stockholders covered hereby it shall send to each Stockholder a written notice
(the date of which being herein referred to as the "Notice Date") specifying a
place and date not earlier than five business days nor later than 20 Business
Days from the Notice Date for the closing of such purchase (the "Closing Date");
provided that if the closing of the purchase and sale pursuant to the Option
(the "Closing") cannot be consummated by reason of any applicable judgment,
decree, order, law or regulation, Acquiror shall use its commercially reasonable
efforts to resolve such matters and close as promptly as practicable. Without
limiting the foregoing, if prior notification to or approval of any regulatory
authority is required in connection with such purchase, Acquiror and, if
applicable, a Stockholder shall promptly file the required notice or application
for approval and shall expeditiously process the same (and such Stockholder
shall cooperate with Acquiror in the filing of any such notice or application
and the obtaining of any such approval).
Section 1.4. Payment and Delivery of Certificates.
(a) Subject to the terms and conditions of this Agreement, in reliance
on the representations, warranties and covenants of each Stockholder contained
herein and in full payment for the Shares, at the Closing, Acquiror will
deliver, or cause to be delivered, to each Stockholder, certificates
representing the Acquiror Shares to be paid pursuant to Section 1.1 duly issued
to each Stockholder, together with any necessary stock transfer stamps properly
affixed. Subject to the terms and conditions in this Agreement, in reliance on
the representations, warranties and covenants of the Acquiror contained herein
and in the Merger Agreement, at the Closing, the Stockholders shall deliver to
Acquiror certificates representing the Shares sold by the Stockholders to
Acquiror at the Closing, duly endorsed in blank or accompanied by stock powers
duly executed by the Stockholders in blank, in proper form for transfer.
(b) No certificates or scrip representing less than one share of
Acquiror Shares shall be issued upon the exercise of the Option. In lieu of any
such fractional share, each Stockholder who would otherwise have been entitled
to a fraction of a share of Acquiror Shares upon exercise of the Option shall be
paid at the Closing cash (without interest) in an amount equal to such
Stockholder's fractional part of a share of Acquiror Shares multiplied by the
last reported sale price of Acquiror Shares, as reported on the NYSE, on the
Closing Date.
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Section 1.5. Legends.
(a) Each Stockholder shall instruct the Company to cause each certificate
of any Stockholder evidencing the Shares to bear a legend in the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, EXCHANGED OR
OTHERWISE TRANSFERRED OR DISPOSED OF EXCEPT IN COMPLIANCE WITH THE TERMS
AND CONDITIONS OF THE PRINCIPAL STOCKHOLDER AGREEMENT DATED AS OF OCTOBER
7, 1997 AS IT MAY BE AMENDED, AMONG LORAL SPACE & COMMUNICATIONS LTD.,
LORAL SATELLITE CORPORATION, ORION NETWORK SYSTEMS, INC. ("ISSUER") AND THE
REGISTERED HOLDER OF THIS CERTIFICATE, A COPY OF WHICH IS ON FILE AT THE
PRINCIPAL EXECUTIVE OFFICES OF THE ISSUER.
(b) In the event that the Shares shall cease to be subject to the
restrictions on transfer set forth in this Agreement, the Company shall, upon
the written request of the holder thereof, issue to such holder a new
certificate evidencing such Shares without the legend required by Section
1.5(a).
Section 1.6. Voting Agreement; Agreement to Tender.
(a) Each Stockholder and Acquiror hereby severally and not
jointly agrees that from the date hereof to the earlier to occur of the
termination of the Merger Agreement or the Effective Time, at any meeting of the
stockholders of the Company, however called, and in any action by consent of the
stockholders of the company, such Stockholder and Acquiror shall vote the
Shares: (i) in favor of the Merger, the Merger Agreement (as amended from time
to time) and the transactions contemplated by the Merger Agreement
(collectively, the "subject transactions"), (ii) against any proposal for any
recapitalization, merger (other than the Merger), sale of assets or other
business combination between the Company and any person or entity (other than
Acquiror or Sub) or any other action or agreement that would result in a breach
of any covenant or any other obligation or agreement of the Company under the
Merger Agreement or which would result in any of the conditions to the Merger
Agreement not being fulfilled and (iii) against the following actions (other
than pursuant to the terms of this Agreement or the Merger Agreement): (A) any
extraordinary corporate transaction, such as a merger, consolidation or other
business combination involving the Company or any of it Subsidiaries; (B) any
sale, lease or transfer by the Company of a material amount of assets (including
stock) of the Company or any of its Subsidiaries; or a reorganization,
restructuring, recapitalization, special dividend, dissolution or liquidation of
the Company or any of its Subsidiaries; or (C)(1)
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any change in a majority of the persons who constitute the board of directors of
the Company or any of its Subsidiaries; (2) any change in the present
capitalization of the Company or any of its Subsidiaries including any proposal
to sell a substantial equity interest in the Company or any of its Subsidiaries;
(3) any amendment to the Company or any of its Subsidiaries' charters or
By-laws; (4) any other change in the Company or any of its Subsidiaries'
corporate structure or business; or (5) any other action which, in the case of
each of the matters referred to in clauses (C)(1), (2), (3) or (4), is intended,
or could reasonably be expected, to impede, interfere with, delay, postpone, or
materially adversely affect the Merger and the transactions contemplated by this
Agreement.
(b) Each Stockholder and Acquiror severally and not jointly agrees that it
shall not enter into any agreement or understanding the effect of which would be
inconsistent with or violative of the provisions and agreements contained
herein, including in this Section 1.6. Further, each Stockholder and Acquiror
severally and not jointly agrees that it will, if the Board of Directors of the
Company fails or refuses (other than as a result of breach by Acquiror or any of
its Affiliates of the Merger Agreement or because the Acquiror and its
Affiliates will not or cannot satisfy the conditions precedent thereto) to
submit the subject transactions to the Company's stockholders, vote all Shares
held of record or beneficially owned by it to (i) call or cause to be called a
special meeting of stockholders of the Company (or effect a written consent) to
remove the directors of the Company who have so failed or refused, or to
increase the size of the Board of Directors and elect a majority of new
directors who will submit the subject transactions to the stockholders of the
Company for a vote, and (ii) use its reasonable efforts to effect such removal
and replacement, or increase and election, and the submission of the subject
transactions to the stockholders of the Company; and (iii) at any time after
initial approval by the stockholders of the Company of the subject transactions,
if so requested by Acquiror, to approve all or any actions incident to the
subject transactions or the other matters referred to in this Section 1.6 by
stockholder written consent.
(c) If there is an Exchange Offer pursuant to Section 7.15 of the Merger
Agreement, each Stockholder agrees to tender such Stockholder's Shares into the
Exchange Offer (including all Shares issusable upon conversion of the
Debentures; provided, however, that actual conversion need not be effected until
consummation of the Exchange Offer).
Section 1.7. No Disposition or Encumbrance of Shares and Options.
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Except to the extent set forth in Exhibit B, each Stockholder
hereby severally and not jointly covenants and agrees that, from the
date hereof to the termination of the rights of Acquiror under this
Agreement, it shall not, and shall not offer or agree to, sell,
transfer, tender, assign, hypothecate or otherwise dispose of, or
create or permit to exist any Encumbrance (as hereinafter defined) on
the Shares owned by such Stockholder at any time prior to the
Effective Time.
Section 1.8. Voting of Shares; Further Assurances.
(a) Each Stockholder, by this Agreement, with respect to its Shares, does
hereby constitute and appoint Sub and Acquiror, or any nominee of Sub and
Acquiror, with full power of substitution, from the date hereof to the earlier
to occur of the termination of the Merger Agreement or the Effective Time, as
its true and lawful attorney and proxy (its "Proxy"), for and in its name, place
and stead, to vote each of such Shares as its Proxy, at every annual, special or
adjourned meeting of the stockholders of the Company, including the right to
sign its name (as stockholder) to any consent, certificate or other document
relating to the Company that the law of the State of Delaware may permit or
require:
(i) in favor of the Merger, the Merger Agreement (as amended
from time to time) and the transactions contemplated by the Merger
Agreement;
(ii) against any Acquisition Proposal for any
recapitalization, merger (other than the Merger), sale of assets or
other business combination between the Company and any person or
entity (other than Acquiror or Sub) or any other action or agreement
that would result in a breach of any covenant or any other obligation
or agreement of the Company under the Merger Agreement or which could
result in any of the conditions to the Merger Agreement not being
fulfilled; and
(iii) against (A) any extraordinary corporate transaction,
such as a merger, consolidation or other business combination
involving the Company or any of its Subsidiaries, (B) any sale, lease,
or transfer by the Company of a material amount of assets (including
stock) of the Company or any of its Subsidiaries, or a reorganization,
restructuring, recapitalization, special dividend, dissolution or
liquidation of the Company or any of its Subsidiaries; or (C) (1) any
change in a majority of the persons who constitute the board of
directors of the Company or any of its Subsidiaries; (2) any change in
the present capitalization of the Company or any of its Subsidiaries
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including any proposal to sell a substantial equity interest in the Company or
any of its Subsidiaries; any amendment of the Company or any of its
Subsidiaries' charters or By-laws; (4) any other change in the Company or any of
its Subsidiaries' corporate structure or business; or (5) any other action
which, in the case of each of the matters referred to in clauses (C)(1), (2),
(3) or (4), is intended, or could reasonably be expected, to impede, interfere
with, delay, postpone, or materially adversely affect the Merger and the
transactions contemplated by this Agreement.
THIS POWER OF ATTORNEY IS IRREVOCABLE, IS GRANTED IN
CONSIDERATION OF ACQUIROR AND SUB ENTERING INTO THE MERGER AGREEMENT
AND IS COUPLED WITH AN INTEREST SUFFICIENT IN LAW TO SUPPORT AN
IRREVOCABLE POWER. This appointment shall revoke all prior attorneys
and proxies appointed by any Stockholder at any time with respect to
the Shares and no subsequent attorneys or proxies will be appointed by
such Stockholder, or be effective, with respect thereto during the
term of this Agreement.
(a) Each Stockholder shall perform such further acts and execute such
further documents and instruments as may reasonably be required to vest in Sub
and Acquiror the power to carry out and give effect to the provisions of this
Agreement.
(b) Nothing contained in this Section 1.8 shall be construed to
invalidate any action taken by a Stockholder in accordance with Section 1.8.
Section 1.9. Purchase Events.
Acquiror may exercise the Option only if one or more of the
following events has occurred:
(a) the Board of Directors of the Company or any committee thereof
shall have withdrawn or modified its approval or recommendation of the Merger or
the Merger Agreement in any manner adverse to Acquiror, or approved or
recommended any Acquisition Proposal (as defined in the Merger Agreement), or
shall have adopted a resolution to take any of the foregoing actions;
(b) (i) the approval of the Merger Agreement by the stockholders of
the Company shall have not been obtained by reason of the failure to obtain the
required vote at the Stockholders' Meeting (as defined in the Merger Agreement)
and (ii) at the time of such negative vote there shall be pending an Acquisition
Proposal (as defined in the Merger Agreement);
(c) the Company or any of its Subsidiaries shall have
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entered into any agreement with any person (other than Acquiror or any of its
affiliates), the Board of Directors of such entity shall have approved,
recommended or resolved to enter into an agreement with any person, or the
Company shall have publicly announced its intention to take any of the foregoing
actions, with respect to the sale of 20% or more (in voting power) of the voting
securities of the Company or of 20% or more (in fair market value) of the assets
of the Company and its Subsidiaries, on a consolidated basis, however such
transaction may be effected; or
(d) any person (other than Acquiror or any of its affiliates), shall
have commenced (as such term is defined in Rule 14d-2 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), or shall have filed a
registration statement under the Securities Act of 1933, as amended (the "Act"),
with respect to a tender or exchange offer for securities representing 35% or
more of the voting power of the Company; or the acquisition, by any person or
group (as defined in Section 13(d) of the Exchange Act), other than Acquiror or
any of its affiliates, of beneficial ownership of (as defined in the Rule 13d-3
under the Exchange Act), or the right to acquire beneficial ownership of,
securities representing 35% or more of the voting power of the Company;
provided that no event set forth in this Section 1.9 shall be deemed to
occur solely by reason of any agreement, or any action that is taken,
or of any event that occurs, for which Acquiror has given its prior
written consent. As used in this Agreement, "person" shall have the
meaning specified in Section 13(d)(3) of the Exchange Act.
Section 1.10. Convertible Debentures.
Each Stockholder that holds Debentures agrees that all Debentures held
by such Stockholder shall be converted into shares of Common Stock (together
with any shares of Common Stock representing accrued but unpaid interest on the
Debentures) in accordance with Section 15.1 of the Debenture Purchase Agreement,
dated as of January 13, 1997, as amended as of January 31, 1997, among the
Company, British Aerospace Holdings, Inc. and Matra Marconi Space UK Limited
(the "Debenture Agreement") relating thereto immediately prior to the Effective
Time (except if converted prior to such date), and at such time, converted into
the right to receive in the Merger Acquiror Shares in accordance with the terms
of the Merger Agreement. In consideration for the foregoing, such Stockholder
waives its rights under Section 11.3 of the Debenture Agreement with respect to
the consummation of the Merger.
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Section 1.11. Control Shares
The Company hereby waives its rights under Article ELEVENTH, Section
H, of its Restated Certificate of Incorporation with respect to all Shares
acquired pursuant to exercise of the Option, and hereby agrees, promptly
following any such exercise, to exchange for such Shares an equal number of duly
authorized, but unissued Shares, which upon issuance will be validly issued,
fully paid and nonassessable Shares, and which will not be "control shares"
within the meaning of such Article ELEVENTH.
Article II.
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder, severally and not jointly, hereby represents and
warrants to Acquiror as follows:
Section 2.1. Due Organization, Authorization, etc.
Such Stockholder (if it is a corporation, partnership or other legal
entity) is duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation or organization. Such Stockholder has
all requisite power (corporate or otherwise) to execute and deliver this
Agreement, to grant the Option and to consummate the transaction contemplated
hereby. The execution and delivery of this Agreement, the appointment of
Acquiror and Sub as such Stockholder's Proxy, the granting of the Option and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary action (corporate or otherwise) on the part of such
Stockholder. This Agreement has been duly executed and delivered by or on behalf
of such Stockholder and, assuming its due authorization, execution and delivery
by Acquiror, constitutes a legal, valid and binding obligation of such
Stockholder, enforceable against such Stockholder in accordance with its terms.
Section 2.2. No Conflicts, Required filings and Consents.
(a) The execution and delivery of this Agreement by such Stockholder
does not, and the performance of this Agreement by such Stockholder will not,
(i) conflict with or violate the Certificate of Incorporation by By-Laws or
other similar organizational documents of such Stockholder (in the case of a
Stockholder that is a corporation, partnership or other legal
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entity), (ii) conflict with or violate any statute, law, ordinance, rule,
regulation, order, decree or judgment applicable to such Stockholder or by which
it or any of its properties is bound or affected, or (iii) result in any breach
of or constitute a default (with or without notice or lapse of time, or both)
under, or give to others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of a lien or encumbrance on any of
the property or assets of such Stockholder or (if such Stockholder is a
corporation, partnership or other legal entity) any of its subsidiaries,
including, without limitation, the Shares, pursuant to, any indenture or other
loan document provision or other contract, license, franchise, permit or other
instrument or obligation to which such Stockholder is a party or by which such
Stockholder or any of its properties is bound or affected, except, in the case
of clauses (ii) and (iii), for any such breaches, defaults or other occurrences
that would not prevent the performance by such Stockholder of its obligations
under this Agreement.
(b) The execution and delivery of this Agreement by such Stockholder
do not, and the performance of this agreement by such Stockholder will not,
require any consent, approval, authorization or permit of, or filing with or
notification to, any governmental or regulatory authority, domestic or foreign,
except where the failure to obtain such consents, approvals, authorizations or
permits, or to make such filings or notifications, would not prevent the
performance by the Stockholder of its obligations under this Agreement.
Section 2.3. Title to Shares.
Such Stockholder has, and the transfer by the Stockholder of the
Shares hereunder will pass, good and marketable title to the Shares listed on
Exhibit A hereto, free and clear of any pledge, lien, security interest,
mortgage, charge, claim, equity, option, proxy, voting restriction, right of
first refusal, limitation on disposition, adverse claim of ownership or use or
encumbrance of any kind ("Encumbrances"), except to the extent disclosed on
Exhibit B and for Shares sold prior to the Closing as permitted under Section
1.8.
Section 2.4. No Brokers.
Except as contemplated in the Merger Agreement, 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.
Section 2.5. Investment Intent, Etc.
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Each Stockholder is acquiring the Acquiror Shares, together with the
associated rights, to be received in the Merger or pursuant to the exercise of
the Option, for its own account for investment and not with a view towards the
resale, transfer or distribution thereof, nor with any present intention of
distributing the Acquiror Shares. Each Stockholder is an "accredited investor"
within the meaning of Regulation D promulgated under the Act. Each Stockholder
has such knowledge and experience in financial and business matters that it is
capable of evaluating the merits and risks of an investment in Acquiror and is
able to bear the economic risk of such investment for an indefinite period of
time.
Article III.
REPRESENTATIONS AND WARRANTIES OF ACQUIROR
Section 3.1. Authority Relative to the Agreement.
(a) Acquiror has the corporate power to execute and deliver this Agreement
and to carry out its obligations hereunder. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have been
duly authorized by Acquiror's Board of Directors. The Agreement constitutes a
valid and binding obligation of Acquiror, enforceable against Acquiror in
accordance with its terms, except as enforcement may be limited by bankruptcy,
insolvency or other similar laws affecting the enforcement of creditors' rights
generally and except that the availability of equitable remedies, including
specific performance, is subject to the discretion of the court before which any
proceeding therefor may be brought. No other corporate proceedings on the part
of Acquiror are necessary to authorize the execution and delivery by Acquiror of
this Agreement or the consummation of the transactions contemplated hereby.
(b) The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby, does not and will not result in the change
in conversion ratios, conversion rights or voting rights, or the breach,
violation, default (with or without notice or lapse of time, or both),
termination, cancellation or acceleration of any obligation, or the loss of a
material benefit, under (i) the Acquiror's Memorandum of Association or bye-laws
or (ii) any indenture or other loan document provision or other contract,
license, franchise, permit, order, decree, concession, lease, instrument,
judgment, statute, law, ordinance, rule or regulation applicable to Acquiror or
any of its Subsidiaries or their respective properties or assets, other than, in
the case of clause (ii)
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only, (A) any breaches, violations, defaults, terminations, cancellations,
accelerations or losses which, either singly or in the aggregate, will not have
a Acquiror Material Adverse Effect or prevent the consummation of the
transactions contemplated hereby.
Section 3.2. Representations in Merger Agreement.
Acquiror represents and warrants to each Stockholder that the
representations and warranties set forth in Article V of the Merger
Agreement were (or will be) true and correct when made and on and as of the
date of any action taken by Acquiror hereunder (including without
limitation exercise of the Option) with the same effect as though such
representations and warranties had been made on and as of such date (except
for representations and warranties that speak as of a specific date or
time, which need only be true and correct as of such date or time), except
where the failure of such representations and warranties to be so true and
correct (without giving effect to any limitation as to "materiality" or
"Acquiror Material Adverse Effect" set forth therein) does not have an
Acquiror Material Adverse Effect, and such representations and warranties
shall be deemed incorporated herein; provided, however, that incorporated
representations and warranties which relate to the Merger Agreement shall
be deemed for purposes of this Section to have been modified to relate only
to this Agreement.
Article IV.
DISTRIBUTIONS; ADJUSTMENT UPON
CHANGES IN CAPITALIZATION.
(a) Any dividends or other distributions (whether payable in cash,
stock or otherwise) by the Company with respect to any Shares purchased
hereunder with a record date on or after the Closing Date will belong to
Acquiror. If any such dividend or distribution belonging to Acquiror is paid by
the Company to the Stockholder, the Stockholder shall hold such dividend or
distribution in trust for the benefit of Acquiror and shall promptly remit such
dividend or distribution to Acquiror in exactly the form received, accompanied
by appropriate instruments of transfer. If on or after the date of this
Agreement there shall occur any stock dividend, stock split, recapitalization,
combination or exchange of shares, merger, consolidation, reorganization or
other change or transaction of or by the Company, as a result of which shares of
any class of stock, other securities, cash or other property shall be issued in
respect of any Shares or if any Shares shall be changed into the same or
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another class of stock or other securities, then, upon exercise of the Option,
Acquiror shall receive for the aggregate price payable upon exercise of the
Option with respect to the Shares, all such shares of stock, other securities,
cash or other property issued, delivered or received with respect to such Shares
(or if the Option shall not be exercised, appropriate adjustment shall be made
for purposes of the calculations set forth in this Agreement).
(b) Any dividends or other distributions (whether payable in cash,
stock or otherwise) by Acquiror with respect to any Acquiror Shares issued
hereunder with a record date on or after the Closing Date will belong to the
Stockholder to which such Acquiror Shares were issued. If on or after the date
of this Agreement there shall occur any stock dividend, stock split,
recapitalization, combination or exchange of shares, merger, consolidation,
reorganization or other change or transaction of or by Acquiror, as a result of
which shares of any class of stock, other securities, cash or other property
shall be issued in respect of any Acquiror Shares or if any Acquiror Shares
shall be changed into the same or another class of stock or other securities,
then, upon exercise of the Option, each Stockholder shall receive for the
aggregate price payable to such Stockholder upon exercise of the Option, all
such shares of stock, other securities, cash or other property issued, delivered
or received with respect to the Acquiror Shares to be delivered to such
Stockholder (or if the Option shall not be exercised, appropriate adjustment
shall be made for purposes of the calculations set forth in this Agreement).
Article V.
NO SOLICITATION OF TRANSACTIONS.
Each Stockholder severally and not jointly covenants
and agrees that in its capacity as a stockholder of the Company it
shall not, through any officer, director, employee, representative,
agent or direct or indirect stockholder of the Company or any Company
Subsidiary, directly or indirectly, take any action to (i) encourage,
initiate or solicit the submission of any proposal
that constitutes an Acquisition Proposal, (ii) enter into any agreement
with respect to or accept any Acquisition Proposal or (iii) facilitate
any inquiries or the making of any proposal that constitutes, or may
reasonably be expected to lead to, an Acquisition Proposal. The
Stockholder shall promptly notify Acquiror in writing of any request
for information or Acquisition Proposal, specifying reasonable details
of any inquiry or Acquisition Proposal, and shall keep Acquiror
informed as to the status of any such
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discussions or negotiations. Each Stockholder severally and not
jointly further agrees to use its best efforts as a stockholder to
cause the Company not to, directly or indirectly, solicit, initiate,
seek, or encourage (including by way of furnishing information or
assistance), or take other action to facilitate, any inquiries or the
making of any proposal which constitutes or may reasonably be expected
to lead to, an Acquisition Proposal.
Article VI.
COVENANTS OF THE STOCKHOLDERS.
Section 6.1. Negative Covenants.
Each Stockholder agrees, until the Option has terminated, not to:
(a) sell, transfer, pledge, assign or otherwise dispose of, or enter
into any contract, option or other arrangement with respect to the sale,
transfer, pledge, assignment or other disposition of, the Shares owned by such
Stockholder to any person other than Acquiror or Acquiror's designee and except
as contemplated in Exhibit B;
(b) acquire any additional shares of Common Stock without the prior
consent of Acquiror other than pursuant to rights under the Company Stock
Purchase Plans, options outstanding on the date of this Agreement, or Shares
issued in payment of interest on the Debentures or dividends on the Series C
Shares;
(c) deposit any Shares into a voting trust or grant a proxy or enter
into a voting agreement with respect to any Shares, except for this Agreement;
or
(d) take any action that would make any representation or warranty of
such Stockholder contained herein untrue or incorrect or would result in a
breach by such Stockholder of its obligations under this Agreement or a breach
by the Company of its obligations under the Merger Agreement.
Section 6.2. Reliance; Further Assurances.
Each Stockholder understands and acknowledges that Acquiror
and Sub are entering into the Merger Agreement in reliance upon each
Stockholder's execution and delivery of this Agreement. If Acquiror
shall exercise the Option in accordance with the terms of this
Agreement, from time to time and without additional consideration the
Stockholder will execute and deliver, or cause to be executed and
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delivered, such additional or further transfers, assignments,
endorsements, consents and other instruments as Acquiror may
reasonably request for the purpose of effectively carrying out the
transactions contemplated by this Agreement, including the transfer of
the Shares to Acquiror and the release of any and all Encumbrances
with respect thereto.
Section 6.3. Transfer of Acquiror Shares by British
Aerospace.
British Aerospace Space Systems, Inc. and British Aerospace Holdings,
Inc. (collectively, "BAe") and Acquiror agree to consult and cooperate with
respect to the orderly disposition of Acquiror Shares obtained by BAe. BAe
agrees that for a period of twelve months from the date it acquires the Acquiror
Shares it will not, and will cause each of its affiliates not to, sell or
otherwise transfer any Acquiror Shares other than by means of a block trade (or
a series of block trades) with an entity that qualifies as a block trade
positioner (as that term is defined and/or interpreted under the federal
securities laws and the rules and regulations promulgated thereunder) who is
experienced in block trade transactions. BAe shall consult with Acquiror prior
to such sale and seek the consent of Acquiror to such sale, which consent shall
not be unreasonably withheld, conditioned or delayed. In the event of such
withholding of consent, BAe shall have the right to revise the proposed sale,
and Acquiror shall reconsider the revised sale in accordance with the standard
of this Section. No delay in any proposed sale shall be beyond the expiration of
the twelve-month period. As an alternative to conducting block trades, BAe shall
have the right to sell all (but not less than all) of its Acquiror Shares
pursuant to an underwritten sale with an underwriter reasonably acceptable to
Acquiror. In such event, Acquiror shall modify the registration statement filed
pursuant to Section 6.5 (or file a separate registration statement meeting the
requirements of Section 6.5) to enable BAe to effect such sale. Except as
provided in the prior sentence, Acquiror shall not be obligated to conduct a
"road show" or otherwise support such sale.
Section 6.4. Affiliate Agreement.
Each Stockholder acknowledges that such Stockholder may be
deemed an affiliate (as defined in Rule 12b-2 of the rules promulgated
under the Exchange Act) of the Company, Acquiror or Sub, and further
acknowledges and agrees to transfer, sell or otherwise dispose of
Acquiror Shares (including Acquiror Shares acquired upon the exercise
of options, warrants or rights or the conversion or exchange of
convertible or exchangeable securities) only (a) if such
16
<PAGE>
transfer, sale or disposition is registered under the Act, (b) is in
compliance with the requirements of paragraphs (c) and (d) of Rule 145
promulgated under the Act ("Rule 145") (as indicated in the
restrictive legend that will appear on the stock certificate), or (c)
pursuant to another exemption from registration under the Act for such
offer and sale. Each Stockholder agrees not to make an illegal
"distribution" (within the meaning of the Act and Rule 145) of
Acquiror Shares. Acquiror shall be entitled to place restrictive
legends upon certificates for each Stockholder's Acquiror Shares to
enforce the applicable provisions of law and this Agreement and
Acquiror shall not be required to maintain the effectiveness of the
Proxy Registration Statement (or Exchange Registration Statement, as
the case may be) under the Act for the purposes of resale of Acquiror
Shares by each Stockholder.
Section 6.5. Registration Rights.
(a) In the event that Acquiror exercises the Option, as
promptly as practicable following the closing date for the exchange
offer referred to in Section 1.2 above (but not more than 60 days
following the Closing Date), Acquiror shall (i) file a shelf
registration statement covering all Acquiror Shares for the purposes
of resale of Acquiror Shares by each Stockholder and (ii) use its
reasonable best efforts to cause such shelf registration statement to
become and remain effective for the resale of all Acquiror Shares
issued pursuant to this Agreement; provided, however, that Acquiror
shall be required to include in such registration statement only those
Acquiror Shares as to which the Stockholder holding such Acquiror
Shares agrees to sell such shares in compliance with the requirements
of paragraphs (c) and (d) of Rule 145 that would have been applicable
to such sale if such Acquiror Shares had been registered under the
Proxy Registration Statement (or Exchange Registration Statement, as
the case may be) rather than such shelf registration statement.
(b) Registrations effected under this Section shall be
effected at Acquiror's expense, including the fees and expenses of one
counsel to the holders of Acquiror Shares, but excluding underwriting
discounts and commissions to brokers or dealers. In connection with
each registration under this Section, Acquiror shall indemnify and
hold each holder of Acquiror Shares whose shares are registered
pursuant to such registration statement (a "Holder of Acquiror
Shares"), its underwriters and each of their respective affiliates
harmless against any and all losses, claims, damages, liabilities and
expenses (including,
17
<PAGE>
without limitation, investigation expenses and fees and disbursements
of counsel and accountants), joint or several, to which such Holder of
Acquiror Shares, its underwriters and each of their respective
affiliates may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages, liabilities or expenses (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in
such registration statement (including any prospectus therein), of any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, other than such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) which arise out of are based
upon an untrue statement or alleged untrue statement of a material
fact contained in written information furnished by a Holder of
Acquiror Shares to Acquiror expressly for use in such registration
statement; provided, however, that the foregoing indemnity shall not
inure to the benefit of any Holder of Acquiror Shares, its
underwriters or respective affiliates, if a copy of the prospectus was
not sent or given by or on behalf of such person to the person
purchasing the Shares, if required by law so to have been delivered,
at or prior to the written confirmation of the sale of the Shares to
such person, and if the prospectus (as so amended or supplemented)
would have cured the defect giving rise to such loss, claim, damage or
liability.
(c) In connection with any registration statement pursuant
to this Section, each Holder of Acquiror Shares agrees to furnish
Acquiror with such information concerning itself and the proposed sale
or distribution as shall reasonably be required in order to ensure
compliance with the requirements of the Securities Act. Each Holder of
Acquiror Shares shall indemnify and hold Acquiror, its underwriters
and each of their respective affiliates harmless against any and all
losses, claims, damages, liabilities and expenses (including without
limitation investigation expenses and fees and disbursements of
counsel and accountants), joint or several, to which Acquiror, its
underwriters and each of their respective affiliates may become
subject under the Securities Act or otherwise, insofar as such losses,
claims, damages, liabilities or expenses (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in written information
furnished by any Holder of Acquiror Shares to Acquiror expressly for
use in such registration statement. In no
18
<PAGE>
event shall the liability of any Holder of Acquiror Shares or any
affiliate thereof under this Section be greater in amount than the
dollar amount of the proceeds received by such Holder of Acquiror
Shares upon the sale of the Acquiror Shares giving rise to such
indemnification obligation.
(d) Upon the issuance of Acquiror Shares hereunder, Acquiror
will use its reasonable best efforts promptly to list such Acquiror
Shares with the New York Stock Exchange or on such national or other
exchange on which Acquiror Shares are at the time principally listed.
Article VII.
MISCELLANEOUS
Section 7.1. Non-Survival of Representations, Warranties and
Agreements.
All representations, warranties and agreements made by the
parties to this Agreement shall terminate at the Closing except for
those which by their terms are to be performed after the Closing.
Section 7.2. Expenses.
All costs and expenses incurred in connection with the
transactions contemplated by this Agreement shall be paid by the party
incurring such costs and expenses.
Section 7.3. Notices.
All notices or other communications under this Agreement
shall be in writing and shall be given by delivery in person, by
facsimile, cable, telegram, telex or other standard form of
telecommunications, or by registered or certified mail, postage
prepaid, return receipt requested, addressed as follows (or such other
address for a party as shall be specified in a notice given in
accordance with this Section 7.3) and shall be deemed to have been
given one business day after transmission by facsimile of other
standard form of telecommunications or four days after deposit in the
US mail:
19
<PAGE>
If to the Company:
Orion Network Systems, Inc.
2440 Research Boulevard
Suite 400
Rockville, Maryland 20850
Telecopier No.: (301) 258-3300
Attention: President
With a copy (which shall not constitute notice) to:
Hogan & Hartson L.L.P.
Columbia Square
555 Thirteenth Street, N.W.
Washington, DC 20004
Telecopier No.: (202) 637-5910
Attention: Anthony S. Harrington, Esq.
If to a Stockholder, at the address or facsimile number of such
Stockholder set forth on Exhibit A, with a copy to:
Hogan & Hartson L.L.P.
Columbia Square
555 Thirteenth Street, N.W.
Washington, DC 20004
Telecopier No.: (202) 637-5910
Attention: Anthony S. Harrington, Esq.
If to Acquiror or Sub, at:
Loral Space & Communications Ltd.
600 Third Avenue
New York, New York 10016
Telecopier No.: (212) 338-5350
Attention: Eric J. Zahler, Esq.
with a copy to:
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022
Telecopier No.: (212) 821-8111
Attention: Bruce R. Kraus, Esq.
20
<PAGE>
Section 7.4. Severability.
Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability
without rendering invalid or unenforceable the remaining terms and
revisions of this Agreement or affecting the validity or
enforceability of any of the terms or provisions of this Agreement in
any other jurisdiction. If any provision of this Agreement is so broad
as to be unenforceable, the provision shall interpreted to be only so
broad as is enforceable.
Section 7.5. Entire Agreement.
This Agreement and any documents delivered by the parties in
connection herewith constitute the entire agreement among the parties
with respect to the subject matter hereof and supersede all prior
agreements and understandings among the parties with respect thereto.
No addition to or modification of any provision of this Agreement
shall be binding upon any party hereto unless made in writing and
signed by all parties hereto.
Section 7.6. Assignment, Binding Effect.
Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties hereto
(whether by operation of law or otherwise) without the prior written
consent of the other parties, except that Acquiror or Sub may assign
all or any of their rights and obligations hereunder to any affiliate
of Acquiror, provided that no such assignment shall relieve Acquiror
or Sub of its obligations hereunder if such assignee does not perform
such obligations. Subject to the preceding sentence, this Agreement
shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns. Notwithstanding
anything contained in this Agreement to the contrary, nothing in this
Agreement, expressed or implied, is intended to confer on any person
other than the parties hereto or their respective successors and
assigns any rights, remedies, obligations or liabilities under or by
reason of this Agreement.
Section 7.7. Specific Performance.
The parties hereto agree that irreparable damage would occur
in the event that any of the provisions of this Agreement was not
performed in accordance with its specific terms or was otherwise
breached. It is accordingly agreed
21
<PAGE>
that the parties shall be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the
terms and provisions hereof in any Delaware Court, this being in
addition to any other remedy to which they are entitled at law or in
equity.
Section 7.8. Confidentiality and Public Announcements.
The parties recognize that successful consummation of the
transactions contemplated by this Agreement may be dependent upon
confidentiality with respect to the matters referred to herein. In
this connection, pending public disclosure thereof, each of the
parties hereto severally and not jointly agrees not to disclose or
discuss such matters with anyone not a party to this Agreement (other
than its counsel, advisors, corporate parents and Affiliates) without
the prior written consent of the other parties hereto, except for
filings required pursuant to the Exchange Act and the rules and
regulations thereunder or disclosures its counsel advises are
necessary in order to fulfill its obligations imposed by law or the
requirements of any securities exchange. At all times during the terms
of this Agreement, the parties hereto will consult with each other
before issuing or making any reports, statements or releases to the
public with respect to this Agreement or the transactions contemplated
hereby and will use good faith efforts to agree on the text of public
reports, statements or releases. For purposes of this Section, any
consultation or consent required of from the Stockholders may be
obtained from Gustave M. Hauser.
Section 7.9. Governing Law.
This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to
its rules of conflict of laws.
Section 7.10. Readings.
Headings of the Articles and Sections of this Agreement are
for the convenience of the parties only, and shall be given no
substantive or interpretive effect whatsoever.
Section 7.11. Counterparts.
This Agreement may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered
shall be an original, but all such
22
<PAGE>
counterparts shall together constitute one and the same instrument.
Each counterpart may consist of a number of copies hereof each signed
by less than all, but together signed by all of the parties hereto.
23
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused
this Principal Stockholder Agreement to be executed and delivered as of
the date first written above.
LORAL SPACE & COMMUNICATIONS LTD.
By: /s/ Eric J. Zahler
Name: Eric J. Zahler
Title: Vice President, General
Counsel and Secretary
LORAL SATELLITE CORPORATION
By: /s/ Eric J. Zahler
Name: Eric J. Zahler
Title: Vice President, General
Counsel and Secretary
ORION NETWORK SYSTEMS INC.
By: /s/ W. Neil Bauer
Name: W. Neil Bauer
Title: President and Chief Executive Officer
BRITISH AEROSPACE SPACE SYSTEMS, INC.
By: /s/ William Anthony Rice
Name: William Anthony Rice
Title: Director
BRITISH AEROSPACE HOLDINGS, INC.
By: /s/ William Anthony Rice
Name: William Anthony Rice
Title: Director
FLEET VENTURE RESOURCES, INC.
24
<PAGE>
By:/s/ Robert M. Van Degna
Name:Robert M. Van Degna
Title:Chairman and Chief Executive Officer
/s/ John V. Saeman
John V. Saeman
/s/ W. Neil Bauer
W. Neil Bauer
/s/ Gustave M. Hauser
Gustave M. Hauser
/s/ Sidney S. Kahn
Sidney S. Kahn
/s/ John G. Puente
John G. Puente
25
<PAGE>
EXHIBIT A
Common Series A Series B Series C Convertible
Stock Preferred Preferred Preferred Debentures
------ --------- --------- --------- -----------
British Aerospace Space
Systems, Inc. 729,921 _____ _____ 3,007,770 3,571,429
British Aerospace
Holdings, Inc.
Warwick House, PO Box 87
Farnborough Aerospace
Centre
Farnborough
Hants, GU146YU
Telecopier No.:
(011) 441-252-383488
John V. Saeman 1,394,078 58,823 16,339 _____ _____
Medallion Enterprises,
LLC
3200 Cherry Creek
South Dr.
Suite 570
Denver, CO 80209
Telecopier No.:
(303) 722-0443
W. Neil Bauer(1)(2) _____ _____ _____ _____ _____
Orion
2440 Research Blvd.
Suite 400
Rockville, MD 20850
Telecopier No.: (301) 258-3300
Gustave M. Hauser 352,355 58,823 16,339 _____ _____
Hauser Communications,
Inc.
712 Fifth Avenue
41st Floor
New York, NY 10019
Telecopier No.: (212) 956-
(303) 722-1413
26
<PAGE>
Sidney S. Kahn 207,260 _____ 8,169 _____ _____
14 East 60th Street
Suite 500
New York, NY 10022
Telecopier No.:
(212) 750-8904
John G. Puente(2) 321,501 1,411 392 _____ _____
10500 Willowbrook Dr.
Potomac, MD 20854
Telecopier No.:
(301) 299-9691
Fleet Venture _____ 588,234 155,194 _____ _____
Resources, Inc.
c/o Fleet Equity Partners
RI MO F12C
50 Kennedy Plaza
Providence, RI 02903
Telecopier No.:
(401) 278-6387
(1) Does not include shares purchased under Employee Stock Purchase
Plan.
(2) Does not include shares beneficially owned by wife.
27
<PAGE>
EXHIBIT B
Each of the Stockholders shall have the right to transfer
Shares to (a) any member of such Stockholder's immediate family, (b)
any trust or similar instrument for estate planning purposes or (c)
any charitable organization, foundation or similar entities; provided,
however, such transfer may be made to any such permitted transferee
only if such permitted transferee shall agree in writing to all of the
terms, conditions and restrictions set forth in this Agreement
regarding Shares received by such permitted transferee.
28
<PAGE>
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
ORION NETWORK SYSTEMS, INC.
LORAL SPACE & COMMUNICATIONS LTD.
and
LORAL SATELLITE CORPORATION
DATED AS OF OCTOBER 7, 1997
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I. THE MERGER
SECTION 1.1. The Merger.......................................................1
SECTION 1.2. Effective Time...................................................1
SECTION 1.3. Effect of the Merger.............................................2
SECTION 1.4. Certificate of Incorporation; Bylaws.............................2
SECTION 1.5. Directors and Officers...........................................2
SECTION 1.6. Closing..........................................................2
SECTION 1.7. Subsequent Actions...............................................2
ARTICLE II. CONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES
SECTION 2.1. Conversion of Securities.........................................3
SECTION 2.2. Payment..........................................................5
SECTION 2.3. Company Options; Stock Purchase Plan; Warrants...................7
SECTION 2.4. Stock Transfer Books.............................................9
SECTION 2.5. Certain Adjustments..............................................9
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
SECTION 3.1. Organization and Qualification; Subsidiaries.....................9
SECTION 3.2. Certificate of Incorporation and Bylaws..........................10
SECTION 3.3. Capitalization...................................................10
SECTION 3.4. Authority........................................................11
SECTION 3.5. No Conflict; Required Filings and Consents.......................12
SECTION 3.6. SEC Filings; Financial Statements................................13
SECTION 3.7. Absence of Certain Changes or Events.............................13
SECTION 3.8. Absence of Litigation............................................14
SECTION 3.9. Licenses and Permits; Compliance with Laws.......................14
SECTION 3.10. Taxes...........................................................17
SECTION 3.11. Intellectual Property...........................................18
SECTION 3.12. Material Contracts..............................................19
SECTION 3.13. Employee Benefit Plans..........................................20
SECTION 3.14. Properties; Assets..............................................21
SECTION 3.15. Labor Relations.................................................22
SECTION 3.16. Environmental Matters...........................................23
SECTION 3.17. Insurance.......................................................24
SECTION 3.18. Board Approval; Vote Required...................................24
SECTION 3.19. Opinion of Financial Advisor....................................24
SECTION 3.20. Brokers.........................................................25
SECTION 3.21. Takeover Provisions Inapplicable................................25
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ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF MERGER SUB
SECTION 4.1. Organization and Qualification...................................25
SECTION 4.2. Certificate of Incorporation and Bylaws..........................25
SECTION 4.3. Authority........................................................25
SECTION 4.4. No Conflict; Required Filings and Consents.......................26
ARTICLE V. REPRESENTATIONS AND WARRANTIES OF ACQUIROR
SECTION 5.1. Organization and Qualification; Subsidiaries.....................27
SECTION 5.2. Certificate of Incorporation and Bylaws..........................27
SECTION 5.3. Capitalization...................................................27
SECTION 5.4. Authority........................................................28
SECTION 5.5. No Conflict; Required Filings and Consents.......................29
SECTION 5.6. SEC Filings; Financial Statements................................29
SECTION 5.7. Absence of Certain Changes or Events.............................30
SECTION 5.8. Absence of Litigation............................................30
SECTION 5.9. Licenses and Permits; Compliance with Laws.......................30
SECTION 5.10. Taxes...........................................................31
SECTION 5.11. Intellectual Property...........................................32
SECTION 5.12. Material Contracts..............................................33
SECTION 5.13. Employee Benefit Plans..........................................33
SECTION 5.14. Qualification of Acquiror.......................................33
SECTION 5.15. Brokers.........................................................34
ARTICLE VI. COVENANTS
SECTION 6.1. Affirmative Covenants of the Company.............................34
SECTION 6.2. Negative Covenants of the Company................................35
ARTICLE VII. ADDITIONAL AGREEMENTS
SECTION 7.1. Access and Information...........................................38
SECTION 7.2. Confidentiality..................................................38
SECTION 7.3. Proxy Registration Statement; Board Recommendation and
Stockholder Vote..........................................38
SECTION 7.4. FCC Application..................................................39
SECTION 7.5. HSR Act Matters..................................................40
SECTION 7.6. Public Announcements.............................................40
SECTION 7.7. Indemnification; Directors' and Officers' Insurance..............40
SECTION 7.8. Employee Benefits Matters........................................42
SECTION 7.9. Further Action; Commercially Reasonable Efforts..................42
SECTION 7.10. Negotiation With Others.........................................43
SECTION 7.11. Stock Merger Listing............................................44
SECTION 7.12. Blue Sky........................................................44
SECTION 7.13. Affiliate Agreements............................................44
SECTION 7.14. Consent Solicitation and Supplemental Indenture.................44
SECTION 7.15. The Exchange Offer..............................................45
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<PAGE>
SECTION 7.16. Control of Acquiror and the Company.............................48
SECTION 7.17. Private Letter Ruling...........................................49
ARTICLE VIII. CLOSING CONDITIONS
SECTION 8.1. Conditions to Obligations of Acquiror, Merger Sub and the Company
to Effect the Merger......................................49
SECTION 8.2. Additional Conditions to Obligations of Acquiror and Merger Sub..50
SECTION 8.3. Additional Conditions to Obligations of the Company..............51
ARTICLE IX. TERMINATION, AMENDMENT AND WAIVER
SECTION 9.1. Termination......................................................52
SECTION 9.2. Effect of Termination............................................53
SECTION 9.3. Expenses.........................................................53
SECTION 9.4. Amendment........................................................54
SECTION 9.5. Waiver...........................................................54
ARTICLE X. GENERAL PROVISIONS
SECTION 10.1. Nonsurvival of Representations, Warranties and Agreements.......55
SECTION 10.2. Notices.........................................................55
SECTION 10.3. Certain Definitions.............................................56
SECTION 10.4. Headings........................................................57
SECTION 10.5. Severability....................................................57
SECTION 10.6. Entire Agreement................................................57
SECTION 10.7. Specific Performance............................................57
SECTION 10.8. Assignment......................................................58
SECTION 10.9. Third Party Beneficiaries.......................................58
SECTION 10.10. Governing Law..................................................58
SECTION 10.11. Counterparts...................................................58
EXHIBITS
- --------
Exhibit A Affiliate Agreement
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Index of Defined Terms
----------------------
Section
-------
Acquiror........................................................ PREAMBLE
Acquiror Benefit Plans.......................................... 5.13(a)
Acquiror Commonly Controlled Entity............................. 5.13(a)
Acquiror Election............................................... 7.14(b)
Acquiror ERISA Plan............................................. 5.13(b)
Acquiror Ground Stations........................................ 5.9
Acquiror Intellectual Property.................................. 5.11
Acquiror Material Adverse Effect................................ 5.1
Acquiror Material Contracts..................................... 5.12
Acquiror Permits................................................ 5.9
Acquiror Rights Plan............................................ 2.1(h)
Acquiror Satellites............................................. 5.9(a)
Acquiror SEC Reports............................................ 5.6(a)
Acquiror Series A Preferred..................................... 5.3
Acquiror Series C Preferred..................................... 5.3
Acquiror Shares................................................. 2.1(a)
Acquiror Subsidiary and Acquiror Subsidiaries................... 5.1
Acquisition Proposal............................................ 7.10(a)
affiliate....................................................... 10.3(a)
Affiliate Agreements............................................ 7.13
Agreement....................................................... PREAMBLE
Averaging Period................................................ 2.1(a)
Backlog......................................................... 3.12(c)
beneficial owner................................................ 10.3(b)
benefit liabilities............................................. 3.13(c)
Benefit Plans................................................... 3.13(a)
Blue Sky Laws................................................... 3.5(b)
business day.................................................... 10.3(c)
Capital Stock................................................... 2.1(b)
Certificate and Certificates.................................... 2.2(b)
Certificate of Merger........................................... 1.2
Claim........................................................... 7.7(b)
Closing......................................................... 1.6
Closing Date.................................................... 1.6
Code............................................................ 2.3
Common Stock.................................................... 2.1(a)
Communications Act.............................................. 3.5(b)
Company......................................................... PREAMBLE
Company Balance Sheet........................................... 3.14(a)
Company Benefit Plans........................................... 3.13(a)
Company Commonly Controlled Entity.............................. 3.13(a)
Company ERISA Plan.............................................. 3.13(a)
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Company Ground Stations......................................... 3.9(a)
Company Intellectual Property................................... 3.11
Company Material Adverse Effect................................. 3.1(a)
Company Material Contracts...................................... 3.12(a)
Company Negative Vote........................................... 9.3(a)(iii)
Company Satellites.............................................. 3.9(a)
Company SEC Reports............................................. 3.6(a)
Company Stock Option Plans...................................... 2.3(a)
Company Subsidiary and Company Subsidiaries..................... 3.1(a)
Company Termination Fee......................................... 9.3(a)
Confidentiality Agreement....................................... 7.2
Consent Solicitation............................................ 7.14(a)
control, controlled by, under common control with............... 10.3(d)
Convertible Debentures.......................................... 3.3
Delaware Law.................................................... PREAMBLE
Determination Price............................................. 2.1(a)
Effective Time.................................................. 1.2
Employee Stock Purchase Plan.................................... 2.3(b)
Encumbrances.................................................... 3.3
Environmental Claim............................................. 3.16(d)(i)
Environmental Laws.............................................. 3.16(d)(ii)
Environmental Permits........................................... 3.16(a)
ERISA........................................................... 3.13(a)
Exchange Act.................................................... 3.5(b)
Exchange Agent.................................................. 2.2(a)
Exchange Consideration.......................................... 7.15
Exchange Fund................................................... 2.2(a)
Exchange Offer.................................................. 7.15(a)
Exchange Offer Conditions....................................... 7.15(a)
Exchange Offer Documents........................................ 7.15(b)
Exchange Ratio.................................................. 2.1(a)
Exchange Registration Statement................................. 7.15(b)
FCC............................................................. 3.5(b)
FCC Application................................................. 7.4(a)
FCC Rules....................................................... 3.9(a)
Final Order..................................................... 8.2(c)
Governmental Entity............................................. 3.5(b)
Hazardous Materials............................................. 3.16(d)(iii)
HSR Act......................................................... 3.5(b)
IGO Determinations.............................................. 3.9(c)
Indemnified Parties............................................. 7.7(b)
Indentures...................................................... 7.14(a)
Interim Period.................................................. 7.1
Key Applications................................................ 3.9(a)
Key Company Permits............................................. 3.9(a)
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<PAGE>
Major Station................................................... 3.14(b)
Merger.......................................................... 1.1
Merger Consideration............................................ 2.2(b)
Merger Consideration Value...................................... 6.3(d)(i)
Merger Sub...................................................... PREAMBLE
Multiemployer Plan.............................................. 3.13(d)
NASD............................................................ 3.5(b)
Nasdaq.......................................................... 3.5(b)
NYSE............................................................ 2.1(a)
Offer to Exchange............................................... 7.15(b)
Oldco........................................................... 3.6(a)
Option.......................................................... 2.3(a)
Other Permits................................................... 3.9(a)
Per Share Amount................................................ 2.1(b)
person.......................................................... 10.3(e)
Preferred Stock................................................. 2.1(b)
Principal Stockholder Agreement................................. PREAMBLE
Proxy Registration Statement.................................... 7.3(a)
qualified....................................................... 3.13(b)
reasonable efforts.............................................. 10.3(f)
Receiving Party................................................. 7.2
Requisite Consents.............................................. 7.14(a)
Schedule 14D-1.................................................. 7.15(c)
Schedule 14D-9.................................................. 7.15(d)
SEC............................................................. 3.6(a)
Securities Act.................................................. 3.5(b)
Senior Notes.................................................... 7.14(a)
Series A Preferred Stock........................................ 2.1(b)
Series B Preferred Stock........................................ 2.1(b)
Series C Preferred Stock........................................ 2.1(b)
Solicitation Termination Date................................... 7.14(b)
Stockholders' Meeting........................................... 7.3(b)
Subsidiary...................................................... 3.1(b)
Surviving Corporation........................................... 1.1
Tax, Taxable and Taxes.......................................... 3.10
Termination Date................................................ 9.1(e)
Trading Day..................................................... 2.1(a)
unfunded current liability...................................... 3.13(c)
VSAT Stations................................................... 3.14(b)
Volume Weighted Average Trading Price........................... 2.1(a)
Warrant......................................................... 2.3(c)
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is
entered into this 7th day of October, 1997, by and among ORION NETWORK SYSTEMS,
INC., a Delaware corporation ("Company"), LORAL SPACE & COMMUNICATIONS LTD., a
Bermuda company ("Acquiror"), and LORAL SATELLITE CORPORATION, a Delaware
corporation ("Merger Sub").
WHEREAS, the Boards of Directors of the Company, Acquiror and
Merger Sub have each determined that it is fair to, and in the best interests
of, their respective stockholders that Merger Sub, a wholly-owned subsidiary of
Acquiror, be merged with and into the Company, pursuant to and subject to the
terms and conditions of this Agreement and the Delaware General Corporation Law
("Delaware Law"); and
WHEREAS, concurrently with the execution of this Agreement and
as an inducement to Acquiror to enter into this Agreement, certain stockholders
have entered into an agreement with Acquiror (the "Principal Stockholder
Agreement") pursuant to which, among other things, such stockholders have agreed
to vote their shares of stock of the Company in favor of this Agreement, the
Merger (as defined below) and the other transactions contemplated by this
Agreement; and
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements set forth in
this Agreement, the parties hereto agree as follows:
ARTICLE I.
THE MERGER
SECTION 1.1. The Merger.
Upon the terms and subject to the conditions set forth in this
Agreement, and in accordance with Delaware Law, at the Effective Time (as
defined in Section 1.2) Merger Sub shall be merged with and into the Company
(the "Merger"). As a result of the Merger, the separate corporate existence of
Merger Sub shall cease and the Company shall continue as the surviving
corporation of the Merger (sometimes referred to herein as the "Surviving
Corporation") and a wholly-owned subsidiary of Acquiror. The name of the
Surviving Corporation shall be Loral Orion Network Systems, Inc.
SECTION 1.2. Effective Time.
As promptly as practicable on the Closing Date (as defined in
Section 1.6), the parties hereto shall cause the Merger to be consummated by
filing a certificate of merger (the "Certificate of Merger") with the Secretary
of State of the State of Delaware, in such form as required by, and executed in
accordance with the relevant provisions of, Delaware Law and in such form as
approved by the Company and Acquiror prior to such filing (the time of the
filing of the Certificate of Merger or the time specified therein being the
"Effective Time").
<PAGE>
SECTION 1.3. Effect of the Merger.
At the Effective Time, the effect of the Merger shall be as
provided in the applicable provisions of Delaware Law. Without limiting the
generality of the foregoing, and subject thereto, at the Effective Time, except
as otherwise provided herein, all the rights, privileges, powers and franchises
of Merger Sub and the Company shall vest in the Surviving Corporation, and all
debts, liabilities and duties of Merger Sub and the Company shall become the
debts, liabilities and duties of the Surviving Corporation.
SECTION 1.4. Certificate of Incorporation; Bylaws.
At the Effective Time, (a) the certificate of incorporation of
Merger Sub, as, in effect immediately prior to the Effective Time and as amended
by the Certificate of Merger, shall be the certificate of incorporation of the
Surviving Corporation, and (b) the bylaws of Merger Sub, as in effect
immediately prior to the Effective Time, shall be the bylaws of the Surviving
Corporation.
SECTION 1.5. Directors and Officers.
The directors of Merger Sub (or such other or additional
individuals as Acquiror may designate prior to Closing) shall be the initial
directors of the Surviving Corporation, each to hold office in accordance with
the certificate of incorporation and bylaws of the Surviving Corporation; and
the officers of Merger Sub (or such other or additional individuals as Acquiror
may designate prior to Closing) shall be the officers of the Surviving
Corporation, in each case until their respective successors are duly elected or
appointed and qualified.
SECTION 1.6. Closing.
Subject to the terms and conditions of this Agreement, the
closing of the Merger (the "Closing") will take place as promptly as practicable
after satisfaction of the latest to occur or, if permissible, waiver of the
conditions set forth in Article VIII hereof (the "Closing Date"), at the offices
of Willkie Farr & Gallagher, One Citicorp Center, 153 East 53rd East Street, New
York, New York 10022, unless another date or place is agreed to in writing by
the parties hereto.
SECTION 1.7. Subsequent Actions.
If, at any time after the Effective Time, the Surviving
Corporation shall consider or be advised that any deeds, bills of sale,
assignments, assurances or any other actions or things are necessary or
desirable to continue in, vest, perfect or confirm of record or otherwise in the
Surviving Corporation its right, title or interest in, to or under any of the
rights, properties, privileges, franchises or assets of either of its
constituent corporations acquired or to be acquired by the Surviving Corporation
as a result of, or in connection with, the Merger or otherwise to carry out this
Agreement, the officers and directors of the Surviving Corporation shall be
directed and authorized to execute and deliver, in the name and on behalf of
either of such constituent corporations, all such deeds, bills of sale,
assignments and assurances and to take and do, in the name and on behalf of each
of such corporations or otherwise, all such other actions and things as may be
necessary or desirable to vest, perfect or confirm any and all right, title and
interest in,
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<PAGE>
to and under such rights, properties, privileges, franchises or
assets in the Surviving Corporation or otherwise to carry out this Agreement.
ARTICLE II.
CONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES
SECTION 2.1. Conversion of Securities.
At the Effective Time, by virtue of the Merger and without any
action on the part of Acquiror, Merger Sub, the Company or the holders of any of
the following securities:
(a) Common Stock. Each share of common stock, par value $.01
per share, of the Company ("Common Stock") (excluding any shares described in
Sections 2.1(c) and (d)) issued and outstanding immediately prior to the
Effective Time shall cease to be outstanding and shall be converted into and
exchanged for the right to receive the number of fully paid and nonassessable
shares of common stock, par value $0.01 per share, of Acquiror ("Acquiror
Shares") equal to the Exchange Ratio defined below. All such shares of Common
Stock shall cease to be outstanding and shall automatically be canceled and
retired and shall cease to exist, and each certificate previously evidencing any
such shares shall thereafter represent only the right to receive the Merger
Consideration as described below. The holders of certificates previously
evidencing such shares of Common Stock outstanding immediately prior to the
Effective Time shall cease to have any rights with respect to such shares of
Common Stock, except as otherwise provided herein or by law. Each such
certificate previously evidencing such shares of Common Stock shall be exchanged
for the number of shares previously evidenced by the canceled certificate upon
the surrender of such certificate in accordance with the provisions of Section
2.2, multiplied by the Exchange Ratio.
The Exchange Ratio shall be as follows:
(i) if the Determination Price shall be less than $24.458 but
greater than $16.305, the Exchange Ratio shall be the quotient
obtained by dividing $17.50 by the Determination Price,
(ii) if the Determination Price shall be equal to or greater
than $24.458, the Exchange Ratio shall be 0.71553 and
(iii) if the Determination Price shall be equal to or less
than $16.305, the Exchange Ratio shall be 1.07329.
"Determination Price" shall mean the average of the
Volume-Weighted Average Trading Prices of Acquiror Shares for the twenty (20)
consecutive trading days on which trading of Acquiror Shares occurs (each a
"Trading Day") (the "Averaging Period") ending on the tenth trading day
immediately prior to the Closing Date for the Merger, rounded to the nearest
one-hundred thousandth (or if there shall not be a nearest one-hundred
thousandth, to the next higher one-hundred thousandth). "Volume-Weighted Average
Trading Price" means, for any Trading Day, an amount equal to (i) the cumulative
sum, for each trade of Acquiror Shares during such
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<PAGE>
Trading Day on the New York Stock Exchange, Inc. (the "NYSE") (or, if such
security is not listed on the NYSE, such other principal exchange or
over-the-counter market on which such security is listed), of the product of:
(x) the sale price times (y) the number of Acquiror Shares sold at such price,
divided by (ii) the total number of Acquiror Shares so traded during the Trading
Day.
(b) Company Preferred Stock. Subject to the other provisions
of this Section 2.1, each share of preferred stock, par value $.01 per share, of
the Company ("Preferred Stock"), issued and outstanding immediately prior to the
Effective Time (excluding any shares described in Sections 2.1(c) and (d)),
shall be converted into the right to receive the number of fully paid and
nonassessable Acquiror Shares equal to the Exchange Ratio multiplied by the
number of shares of Common Stock into which such share of Preferred Stock was
convertible immediately prior to the Effective Time. The Company's Series A 8%
Cumulative Redeemable Preferred Stock ("Series A Preferred Stock"), Series B 8%
Cumulative Redeemable Preferred Stock ("Series B Preferred Stock") and Series C
6% Cumulative Redeemable Preferred Stock ("Series C Preferred Stock"), shall be
referred to herein collectively as the "Preferred Stock." The Exchange Ratio
multiplied by the number of Acquiror Shares into which a share of each series of
the Company's Preferred Stock shall be converted in the Merger shall be referred
to herein collectively as the "Per Share Amounts" and individually as a "Per
Share Amount." The Common Stock and Preferred Stock shall be referred to herein
collectively as the "Capital Stock."
All such shares of Preferred Stock shall cease to be
outstanding and shall automatically be canceled and retired and shall cease to
exist, and each certificate previously evidencing any such shares shall
thereafter represent only the right to receive the Merger Consideration as
described below. The holders of certificates previously evidencing such shares
of Preferred Stock outstanding immediately prior to the Effective Time shall
cease to have any rights with respect to such shares of Preferred Stock, except
as otherwise provided herein or by law. Each such certificate previously
evidencing such shares of Preferred Stock shall be exchanged for the applicable
Per Share Amount multiplied by the number of shares previously evidenced by the
canceled certificate upon the surrender of such certificate in accordance with
the provisions of Section 2.3, without interest.
(c) Acquiror-Owned Shares. All shares of capital stock of the
Company owned, directly or indirectly, by Acquiror, Merger Sub or any other
Acquiror Subsidiary (as defined in Section 5.1) shall be canceled and
extinguished without any conversion thereof and no amount shall be delivered or
deliverable in exchange therefor;
(d) Treasury Stock. All shares of capital stock of the Company
held in the treasury of the Company immediately prior to the Effective Time
shall be canceled and extinguished without any conversion thereof and no amount
shall be delivered or deliverable in exchange therefor;
(e) Merger Sub Stock. Each share of common stock, par value
$.01 per share, of Merger Sub issued and outstanding immediately prior to the
Effective Time shall be converted
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into and exchanged for one (1) duly and validly issued, fully paid and
nonassessable share of common stock of the Surviving Corporation; and
(f) No Fractional Shares. No certificate or scrip representing
a fractional share of Acquiror Shares shall be issued pursuant to this Section
2.1, and such fractional interests shall not entitle the owner thereof to any
rights as a security holder of Acquiror. All holders entitled to receive a
fractional share of Acquiror Shares shall be entitled to receive, in lieu
thereof, cash (without interest) in an amount equal to the product of (i) such
fractional part of Acquiror Shares multiplied by (ii) the last sales price per
Acquiror Share on the NYSE Composite Transactions reporting system for the
Closing Date. As promptly as possible after the determination of the amount of
cash, if any, to be paid to holders of fractional interests, the Exchange Agent
shall so notify Acquiror, and Acquiror shall cause the Surviving Corporation to
deposit such amount with the Exchange Agent and shall cause the Exchange Agent
to forward payments to such holders of fractional interests subject to and in
accordance with the terms hereof.
(g) Interest and Dividend Shares. To the extent that any
interest accrued or payable with respect to the Company's 8.75% Convertible
Junior Subordinated Debentures due 2012 or any dividends accrued or payable with
respect to the Series C Preferred Stock, in each case which are payable in the
form of Common Stock, have not been paid as of the Closing Date, such interest
and dividends shall be converted into the right to receive the number of fully
paid and nonassessable Acquiror Shares equal to the Exchange Ratio multiplied by
the number of shares of Common Stock that would have been issued if such
interest or dividends had been paid immediately prior to the Effective Time or,
to the extent such interest or dividends cannot be so converted under the terms
of their governing instruments, such interest and dividends shall be paid in
Common Stock immediately prior to the Effective Time and converted pursuant to
Section 2.1(a).
(h) Rights. Pursuant to the Acquiror's Rights Agreement dated
as of March 27, 1996 between Acquiror and The Bank of New York, as Rights Agent
(the "Acquiror Rights Plan"), the issuance of each Acquiror Share hereunder (or
under the Exchange Offer) shall be accompanied by the associated right under the
Acquiror Rights Plan.
(i) No Liens or Calls on Acquiror Shares. Prior to the
issuance of any Acquiror Shares pursuant to this Agreement, the Principal
Stockholder Agreement or the Exchange Offer, the Board of Directors of the
Acquiror shall, to the extent permitted by Bermuda law, (i) irrevocably waive
any lien that has arisen or may arise on any such Acquiror Shares under Bermuda
law; (ii) irrevocably declare exempt from Section 14 of Acquiror's bye-laws all
such Acquiror Shares; and (iii) irrevocably declare that the Acquiror shall not
make any calls on any such Acquiror Shares pursuant to Section 17 of Acquiror's
bye-laws.
SECTION 2.2. Payment.
(a) Exchange Agent. As of the Effective Time, Acquiror shall,
on behalf of Merger Sub, deposit with an exchange agent theretofore designated
by the Company and Acquiror (the "Exchange Agent"), for the benefit of the
holders of shares of Capital Stock
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<PAGE>
(excluding any shares described in Sections 2.1(c) and (d)), for payment in
accordance with this Article II, through the Exchange Agent, the Acquiror Shares
issuable pursuant to Sections 2.1(a) and (b) plus from time to time as necessary
cash in an amount sufficient to make payment for fractional shares under Section
2.1(f) (such Acquiror Shares and cash being hereinafter referred to as the
"Exchange Fund"). Acquiror shall cause the Exchange Agent, pursuant to
irrevocable instructions, to deliver the Acquiror Shares (and cash for
fractional shares) contemplated to be paid pursuant to Sections 2.1(a), (b) and
(f) out of the Exchange Fund. The Exchange Fund shall not be used for any other
purpose.
(b) Payment Procedures. Promptly after the Effective Time, but
in no event later than five (5) business days thereafter, Acquiror shall cause
the Exchange Agent to mail to each record holder, as of the Effective Time, an
outstanding certificate (each a "Certificate" and collectively, the
"Certificates") that immediately prior to the Effective Time evidenced
outstanding shares of Capital Stock (excluding any shares described in Sections
2.1(c) and (d)); a form letter of transmittal and instructions for use in
effecting the surrender of the Certificates for payment therefor. Upon surrender
to the Exchange Agent of a Certificate, together with such letter of transmittal
duly executed, and any other required documents, the holder of such Certificate
shall be entitled to receive in exchange therefor the applicable consideration
set forth in Section 2.1 (the "Merger Consideration"), and such Certificate
shall forthwith be canceled. Until surrendered in accordance with the provisions
of this Section 2.2, each Certificate shall represent for all purposes only the
right to receive the applicable consideration set forth in Section 2.1, without
any interest thereon. Acquiror or the Surviving Corporation shall pay any
transfer or other similar taxes required by reason of the issuance and receipt
by the former stockholders of the Company of Acquiror Shares pursuant to the
provisions of this Article II.
(c) No Further Rights in Stock. All Acquiror Shares paid upon
conversion of the shares of Capital Stock in accordance with the terms of this
Article II shall be deemed to have been paid in full satisfaction of all rights
pertaining to such shares of Capital Stock.
(d) Termination of Exchange Fund. Any portion of the Exchange
Fund that remains undistributed to the holders of Capital Stock for one hundred
eighty (180) days after the Effective Time shall be delivered to Acquiror, upon
demand, and any holders of Capital Stock that have not theretofore complied with
this Article II shall thereafter look only to the Surviving Corporation and
Acquiror for the Merger Consideration to which they are entitled.
(e) No Liability. Neither Acquiror nor the Surviving
Corporation shall be liable to any holder of shares of Capital Stock for any
Acquiror Shares or cash delivered to a public official pursuant to any
applicable abandoned property, escheat or similar law.
(f) Lost, Stolen or Destroyed Certificates. In the event any
Certificate evidencing shares of Capital Stock shall have been lost, stolen or
destroyed, upon the making of an affidavit setting forth that fact by the person
claiming such lost, stolen or destroyed Certificate and the granting of a
reasonable indemnity against any claim that may be made against Acquiror or the
Exchange Agent with respect to such Certificate, Acquiror shall cause the
Exchange Agent to pay to such person the Merger Consideration with respect to
such lost, stolen or destroyed Certificate.
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<PAGE>
SECTION 2.3. Company Options; Stock Purchase Plan; Warrants.
(a) Company Options. As of the Effective Time, each
outstanding stock option (an "Option") to purchase shares of Common Stock,
including without limitation those granted under the Company's 1986 Stock Option
Plan, 1997 Stock Option Plan and Non-Employee Directors' Stock Option Plan, each
as amended to the date of this Agreement (collectively, the "Company Stock
Option Plans"), shall be converted into an option to acquire Acquiror Shares, as
provided in this Section. Following the Effective Time, each Option shall
continue to have, and shall be subject to, the terms and conditions of each
agreement pursuant to which such Option was subject immediately prior to the
Effective Time (including, in the case of each Option granted under the Company
Stock Option Plans, the terms and conditions of the Company Stock Option Plans),
except that (A) each Option shall be exercisable for that number of Acquiror
Shares equal to the product of (1) the aggregate number of shares of Common
Stock for which such Option was exercisable multiplied by (2) the Exchange
Ratio, provided, however, that no Option shall be exercisable for a fractional
Acquiror Share, and the holder of an Option exercisable for a fractional
Acquiror Share shall be entitled to receive, upon exercise thereof, an offset
against the aggregate exercise price of the Option being exercised therewith,
such offset to be determined by multiplying the fraction of a Acquiror Share to
which a holder of an Option would be entitled to receive times the excess of the
closing price of the Acquiror Share as reported on the NYSE on the date of
exercise over the exercise price of such Option; (B) the exercise price per
share of Acquiror Shares issuable pursuant to each Option shall be equal to the
aggregate exercise price of such Option at the Effective Time divided by the
number of shares of Acquiror Shares for which such Option shall be exercisable
as determined in accordance with the preceding clause (A), rounded to the next
highest whole cent, if necessary; and (C) each outstanding Option shall
accelerate and be exercisable, if not vested and exercisable at such time to the
extent, and only to the extent, provided in Schedule 2.3. Except as set forth
herein, the assumption and substitution of options as provided herein shall not
give the holders of such options additional benefits or additional vesting
rights which they did not have immediately prior to the Effective Time or
relieve the holders of any obligations or restrictions applicable to their
options or the shares obtainable upon exercise of the options. The adjustment
provided herein with respect to any Options that are "incentive stock options"
as defined in the Internal Revenue Code of 1986, as amended (the "Code") shall
be and is intended to be effected in a manner that is consistent with continued
treatment of such Options as "incentive stock options" under of the Code. The
Company Stock Option Plans shall be assumed by Acquiror with respect to all
outstanding Options, and no further options shall be granted under the Company
Stock Option Plans after the Effective Time.
Acquiror shall (i) file one or more registration statements on
Form S-8 (or amend existing registration statements on Form S-8) to become
effective as soon as practicable after the Effective Time with respect to the
Acquiror Shares subject to Options granted under the Company Stock Option Plans;
(ii) use all reasonable efforts to maintain the effectiveness of such
registration statements (and maintain the current status of the prospectus or
prospectuses contained therein) for so long as such options remain outstanding;
and (iii) promptly prepare and submit to the NYSE applications covering the
Acquiror Shares subject to such Options and use commercially reasonable efforts
to cause such securities to be approved for listing on or prior to the Effective
Time, subject to official notice of issuance.
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<PAGE>
Acquiror shall, on behalf of Merger Sub, take such other
actions as are reasonably necessary to revise and adjust each Option as provided
in this Section, including providing the holder of each Option as soon as
practicable after the Effective Time with an appropriate option agreement or
amendment to existing option agreement. Acquiror shall take all corporate action
reasonably necessary to reserve for issuance a sufficient number of Acquiror
Shares for delivery upon the exercise of Options. To the extent that the
provisions of this Section 2.3(a) require amendments to the Company Stock Option
Plans, the Company shall take all actions necessary to make such amendments to
allow for the treatment of Options as provided for in this Section 2.3(a).
(b) Employee Stock Purchase Plan. Effective as of the last
trading day of the Common Stock prior to the Effective Time, the then applicable
Payroll Deduction Period, as defined in the Company's 1996 Employee Stock
Purchase Plan (the "Employee Stock Purchase Plan"), shall be terminated and
shall be deemed to have ended on the last day of the last payroll period ending
prior to the Effective Time; and the rights of each participating employee shall
be deemed to be automatically exercised as of such last trading day of the
Common Stock, as provided in Sections 10 and 26(c) of the Employee Stock
Purchase Plan.
(c) Warrants. As of the Effective Time, each outstanding
warrant (a "Warrant") to purchase shares of Common Stock shall be converted into
a warrant to acquire Acquiror Shares, as provided in this Section. Following the
Effective Time, each Warrant shall continue to have, and shall be subject to,
the terms and conditions of each agreement pursuant to which such Warrant was
subject immediately prior to the Effective Time, except as set forth in this
Section and except that (A) each such Warrant shall be exercisable for that
number of whole Acquiror Shares equal to the product of (x) the aggregate number
of shares of Common Stock for which such Warrant was exercisable multiplied by
(y) the Exchange Ratio; provided, however, that no Warrant shall be exercisable
for a fractional Acquiror Share, and the holder of a Warrant exercisable for a
fractional Acquiror Share shall be entitled to receive, upon exercise thereof,
an offset against the aggregate exercise price of the Warrant being exercised
therewith, such offset to be determined by multiplying the fraction of an
Acquiror Share to which a holder of a Warrant would be entitled to receive times
the excess of the closing price of the Acquiror Share as reported on the NYSE on
the date of exercise over the exercise price of such Warrant, and (B) the
exercise price per Acquiror Share issuable pursuant to such Warrant shall be
equal to the aggregate exercise price of such Warrant at the Effective Time
divided by the number of Acquiror Shares for which such Warrant shall be
exercisable as determined in accordance with the preceding clause (A), rounded
to the next highest whole cent, if necessary.
Acquiror shall, on behalf of Merger Sub, take such other
actions as are reasonably necessary to revise and adjust each Warrant as
provided in this Section, including providing the holder of each Warrant as soon
as practicable after the Effective Time with an appropriate warrant agreement or
amendment to existing warrant agreement. Acquiror shall take all corporate
action reasonably necessary to reserve for issuance a sufficient number of
Acquiror Shares for delivery upon the exercise of Warrants.
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<PAGE>
SECTION 2.4. Stock Transfer Books.
At the Effective Time, the stock transfer books of the Company
with respect to all shares of capital stock of the Company shall be closed and
no further registration of transfers of such shares of capital stock shall
thereafter be made on the records of the Company. On or after the Effective
Time, if any Certificates for shares of Capital Stock (excluding any shares
described in Sections 2.1(c) and (d)) are presented to the Exchange Agent, the
Surviving Corporation or Acquiror for any reason, such Certificates shall be
canceled and exchanged as provided in this Article II, except as otherwise
provided by law.
SECTION 2.5. Certain Adjustments.
If between the date hereof and the Effective Time, the
outstanding shares of Capital Stock or of Acquiror Shares shall be changed into
a different number of shares by reason of any reclassification,
recapitalization, split-up, combination or exchange of shares, or any dividend
payable in stock or other securities shall be declared thereon with a record
date within such period, the Exchange Ratio shall be adjusted accordingly to
provide to the holders of Capital Stock the same economic effect as contemplated
by this Agreement prior to such reclassification, recapitalization, split-up,
combination, exchange or dividend; provided, however, that in the event that,
prior to the Effective Time, Acquiror consummates any merger, amalgamation or
consolidation as a result of which Acquiror Shares being issued hereunder are
neither registered with the SEC pursuant to Section 12(b) or 12(g) of the
Exchange Act (as defined below) nor converted into the right to receive
securities so registered, the Exchange Ratio shall be determined assuming that
the Volume-Weighted Average Trading Price was equal to the per share amount of
consideration a common stockholder of Acquiror received on the date of
consummation of such transaction.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Acquiror and
Merger Sub as follows:
SECTION 3.1. Organization and Qualification; Subsidiaries.
(a) The Company and each Subsidiary (as defined below) of the
Company (each a "Company Subsidiary" and collectively, the "Company
Subsidiaries") is a corporation or partnership duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization. The
Company and each Company Subsidiary is duly qualified to conduct its business,
and is in good standing, in each jurisdiction where the character of its
properties owned, operated or leased or the nature of its activities makes such
qualification necessary, except for such failures which would not in the
aggregate have a Company Material Adverse Effect (as defined below). The Company
and each Company Subsidiary has the requisite corporate or partnership power and
authority and any necessary governmental authority, franchise, license or permit
to own, operate, lease and otherwise to hold and operate its assets and
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properties and to carry on its businesses as now being conducted, except for
such failures which would not have a Company Material Adverse Effect. The
Company has no Subsidiaries (as defined below) or any equity or similar interest
in any entity other than those listed in Schedule 3.1. Except as set forth in
Schedule 3.1, each Company Subsidiary is a wholly-owned direct or indirect
subsidiary of the Company. As used herein, the term "Company Material Adverse
Effect" means any material adverse effect on the business (where "business"
shall be deemed to include the Orion 1 satellite and the proposed Orion 2
satellite and Orion 3 satellite), assets or condition (financial or otherwise),
liabilities or operations of the Company and the Company Subsidiaries taken as a
whole.
(b) For purposes of this Agreement, a "Subsidiary" 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) (i) owns, directly or indirectly, fifty percent (50%) or more of the
capital stock, partnership interests 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, partnership, joint venture or other
legal entity; or (ii) possesses, directly or indirectly, control over the
direction of management or policies of such corporation, partnership, joint
venture or other legal entity (whether through ownership of voting securities,
by agreement or otherwise).
SECTION 3.2. Certificate of Incorporation and Bylaws.
The Company has heretofore delivered to Acquiror a complete
and correct copy of the certificate or articles of incorporation and the bylaws
of the Company and each Company Subsidiary that is a corporation, and a correct
copy of the partnership agreement for each Company Subsidiary that is a
partnership, each as amended to date. Each such certificate or articles of
incorporation, bylaws and partnership agreement is in full force and effect.
Neither the Company nor any Company Subsidiary is in violation of any of the
provisions of its respective certificate or articles of incorporation, bylaws or
partnership agreement.
SECTION 3.3. Capitalization.
The authorized capital stock of the Company consists, as of
September 30, 1997, of: (a) 40,000,000 shares of Common Stock, of which
11,675,436 shares are issued and 11,406,162 shares are outstanding; and (b)
1,000,000 shares of Preferred Stock, of which 15,000 shares have been designated
as Series A Preferred Stock, 5,000 shares have been designated as Series B
Preferred Stock and 150,000 shares have been designated as Series C Preferred
Stock, with 13,845 shares of Series A Preferred Stock, 4,295 shares of Series B
Preferred Stock and 123,172 shares of Series C Preferred Stock being issued and
outstanding.
As of September 30, 1997, (i) 2,022,573 shares of Common Stock
were reserved for issuance upon the exercise of Options outstanding under the
Company Stock Option Plans, 500,000 shares of Common Stock were reserved for
issuance under the Company's 1996 Employee Stock Purchase Plan and 100,000
shares of Common Stock were reserved for issuance under the Company's 401(k)
Plan; (ii) 9,088,300 shares of Common Stock were reserved for purposes of
effecting conversions of Preferred Stock into Common Stock; (iii) 4,285,714
shares
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of Common Stock were reserved for purposes of effecting conversions of the
Company's Convertible Junior Subordinated Debentures due February 1, 2012 (the
"Convertible Debentures") into Common Stock; and (iv) 961,238 shares were
issuable (and were reserved for issuance) upon the exercise of outstanding
warrants and options other than those referred to in clauses (i) and (ii) above.
In addition, Common Stock has been reserved for issuance in payment of interest
on Convertible Debentures and dividends on Series C Preferred Stock.
As of the date hereof, there are no bonds, debentures, notes
or other indebtedness having the right to vote on any matters on which the
Company's stockholders may vote issued or outstanding.
Since June 30, 1997, no shares of Capital Stock have been
issued, except for shares of Common Stock issued upon the exercise of options
granted under the Company's Stock Option Plans, shares of Common Stock issued
pursuant to the Company's Employee Stock Purchase Plan or 401(k) Plan and shares
of Common Stock issued upon conversion of Preferred Stock and in payment of
interest on Preferred Stock and the Convertible Debentures. Other than as set
forth above, except as set forth in Schedule 3.3, there are no options, warrants
or other rights, agreements, arrangements or commitments of any character
relating to the issued or unissued capital stock of the Company or any Company
Subsidiary or obligating the Company or any Company Subsidiary to issue, deliver
or sell any shares of capital stock of, or other equity interests, in the
Company or any Company Subsidiary. Set forth on Schedule 3.3 is a list of all
options, warrants or other rights, agreements, arrangements or commitments of
any character relating to the issued or unissued capital stock of the Company or
any Company Subsidiary granted by the Company or any Company Subsidiary since
June 30, 1997.
Except as set forth in Schedule 3.3, there are no outstanding
contractual obligations of the Company to repurchase, redeem or otherwise
acquire any shares of its capital stock. All of the issued and outstanding
shares of Capital Stock have been duly authorized and validly issued and are
fully paid and nonassessable and not subject to preemptive rights. Except as set
forth in Schedule 3.3, all of the outstanding shares of capital stock of each
Company Subsidiary that is a corporation have been duly authorized and validly
issued and are fully paid and nonassessable, and all of the partnership
interests of each Company Subsidiary that is a partnership have been duly
authorized and validly issued and, except pursuant to provisions of the
applicable partnership agreement, are fully paid. With respect to each Company
Subsidiary that is a partnership, all of the partnership interests owned by the
Company, and with respect to each Company Subsidiary that is a corporation, all
of the outstanding shares of capital stock owned by the Company, are owned by
the Company free and clear of any liens, security interests, pledges,
agreements, claims, charges or encumbrances (collectively, the "Encumbrances").
SECTION 3.4. Authority.
The Company has the necessary corporate power and authority to
enter into this Agreement and the Principal Stockholder Agreement and, subject
to obtaining any necessary stockholder approval of the Merger, to perform its
obligations hereunder and thereunder and to consummate the transactions
contemplated hereby and thereby. Except for the approval of this Agreement by
the stockholders of the Company in accordance with Delaware Law, the execution
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and delivery of this Agreement and the Principal Stockholder Agreement by the
Company and the consummation by the Company of the transactions contemplated
hereby and thereby have been duly and validly authorized by all necessary
corporate action and no other corporate proceedings on the part of the Company
are necessary to authorize this Agreement and the Principal Stockholder
Agreement or to consummate the transactions contemplated hereby and thereby.
Each of this Agreement and the Principal Stockholder Agreement has been duly
executed and delivered by the Company and, assuming the due authorization,
execution and delivery by Acquiror and Merger Sub, constitutes a legal, valid
and binding obligation of the Company, enforceable in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws of general applicability
relating to or affecting creditors' rights generally and by the application of
general principles of equity.
SECTION 3.5. No Conflict; Required Filings and Consents.
(a) The execution and delivery of this Agreement and the
Principal Stockholder Agreement by the Company do not, and the performance by
the Company of its obligations under this Agreement and the Principal
Stockholder Agreement will not, (i) conflict with or violate the certificate or
articles of incorporation, bylaws or partnership agreement of the Company or any
Company Subsidiary, (ii) subject to obtaining the approvals and compliance with
the requirements set forth in Section 3.5(b), conflict with or violate any law,
statute, ordinance, rule, regulation, order, judgment or decree applicable to
the Company or any Company Subsidiary or by which any of their respective
properties is bound or affected, or (iii) except as set forth in Schedule 3.5,
result in any breach of or constitute a default (or an event which with or
without notice or lapse of time or both would become a default) under, or give
to others any rights of termination, amendment, acceleration or cancellation of,
or result in the creation of an Encumbrance on any of the properties or assets
of the Company or any Company Subsidiary pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which the Company or any Company Subsidiary is a
party or by which the Company, any Company Subsidiary or any of their respective
properties or assets is bound or affected, except, in the case of clauses (ii)
and (iii) above, for any such conflicts, violations, breaches, defaults or other
alterations or occurrences that would not prevent or delay consummation of the
Merger in any material respect, or otherwise prevent the Company from performing
its obligations under this Agreement in any material respect, and would not have
a Company Material Adverse Effect.
(b) The execution and delivery of this Agreement by the
Company does not, and the performance of this Agreement by the Company will not,
require any consent, approval, authorization or permit of, or filing with or
notification to, any governmental or regulatory authority, domestic or foreign
(each a "Governmental Entity"), by or with respect to the Company except (i) for
(A) applicable requirements, if any, of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), the Securities Act of 1933, as amended (the
"Securities Act"), state securities or "blue sky" laws ("Blue Sky Laws"), state
takeover laws, the National Association of Securities Dealers, Inc. (the "NASD")
or the Nasdaq National Market ("Nasdaq"), the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended (the "HSR Act"), the Communications Act of
1934, as amended (the "Communications Act"), the Federal
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Communications Commission (the "FCC"), Telekommunikationsgesetz (TKG) and the
German Telecommunications Installations Act, (B) applicable requirements, if
any, of the consents, approvals, authorizations or permits described in Schedule
3.5, and (C) filing and recordation of appropriate merger documents as required
by Delaware Law and (ii) where 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 in any material respect, or
otherwise prevent the Company from performing its obligations under this
Agreement in any material respect, and would not have a Company Material Adverse
Effect.
SECTION 3.6. SEC Filings; Financial Statements.
(a) The Company (or its predecessor, Constellation Oldco
Services, Inc., now a 100% owned Company Subsidiary ("Oldco")) has filed all
forms, reports, statements and other documents required to be filed with the
Securities and Exchange Commission (the "SEC") since August 4, 1995, the date of
Oldco's initial public offering, and has heretofore furnished to Acquiror, in
the form filed with the SEC since such date, together with any amendments
thereto, its (i) Annual Reports on Form 10-K, (ii) all Quarterly Reports on Form
10-Q, (iii) all proxy statements relating to meetings of stockholders (whether
annual or special), (iv) all reports on Form 8-K, and (v) all other reports or
registration statements filed by the Company (collectively, the "Company SEC
Reports"). As of their respective filing dates, the Company SEC Reports (i)
complied as to form in all material respects with the requirements of the
Exchange Act and the Securities Act, and (ii) did not at the time they were
filed contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(b) The audited consolidated financial statements and
unaudited interim financial statements of the Company included in the Company
SEC Reports comply as to form in all material respects with applicable
accounting requirements and with the published rules and regulations of the SEC
with respect thereto. The financial statements, including all related notes and
schedules, contained in the Company SEC Reports (or incorporated by reference
therein) present fairly in all material respects the consolidated financial
position of the Company (or Oldco, as the case may be) and the Company
Subsidiaries as at the respective dates thereof and the consolidated results of
operations and cash flows of the Company (or Oldco, as the case may be) and the
Company Subsidiaries for the periods indicated, in accordance with generally
accepted accounting principles applied on a consistent basis throughout the
periods involved (except as may be noted therein) and subject in the case of
interim financial statements to normal year-end adjustments.
SECTION 3.7. Absence of Certain Changes or Events.
Except as set forth in Schedule 3.7, since June 30, 1997, the
Company and the Company Subsidiaries have not incurred any material liability,
except in the ordinary course of business consistent with their past practices,
and the Company and the Company Subsidiaries have conducted their respective
businesses in the ordinary course consistent with their past practices. Except
as set forth in Schedule 3.7, since June 30, 1997, there has not been any change
in the business (where "business" shall be deemed to include the Orion 1
satellite and the
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proposed Orion 2 satellite and Orion 3 satellite), condition (financial or
otherwise) or results of operations of the Company and the Company Subsidiaries,
including any transaction, commitment, dispute, damage, destruction or loss,
whether or not covered by insurance, or other event of any character (whether or
not in the ordinary course of business) individually or in the aggregate, which
has had, or is reasonably likely to have, a Company Material Adverse Effect,
other than (i) any change arising out of matters of a general economic nature,
or (ii) any change arising out of matters affecting the satellite industry,
either international or national, generally (including, but not limited to,
competition from other satellite systems or service providers and legislation,
rulemaking, regulation or regulatory practice by any governmental agency or
international rulemaking body such as the International Telecommunication
Union).
SECTION 3.8. Absence of Litigation.
Except as set forth in Schedule 3.8, as of the date hereof
there are (a) no claims, actions, suits, investigations, or proceedings pending
or, to the Company's knowledge, threatened against the Company or any of the
Company Subsidiaries before any court, administrative, governmental, arbitral,
mediation or regulatory authority or body, domestic or foreign, that would be
reasonably likely to have a Company Material Adverse Effect, or that challenge
or seek to prevent, enjoin, alter or materially delay the transactions
contemplated hereby, and (b) no judgments, decrees, injunctions or orders of any
Governmental Entity or arbitrator outstanding against the Company or any Company
Subsidiary that would reasonably be likely to have a Company Material Adverse
Effect.
SECTION 3.9. Licenses and Permits; Compliance with Laws.
Except as set forth in Schedule 3.9:
(a) Set forth on Schedule 3.9(a) is a true and complete list
of all permits, licenses and approvals (none of which has been modified or
rescinded and all of which are in full force and effect) from all Governmental
Entities held by the Company ("Company Permits"), except in each case for
Company Permits whose absence or revocation would not individually or in the
aggregate have a Company Material Adverse Effect (all of the foregoing, which
are denoted by an asterisk on Schedule 3.9(a), being referred to herein
collectively as the "Key Company Permits"); provided, however, that Schedule
3.9(a) shall not be required to include a list of Company Permits for Very Small
Aperture Terminals (VSATs). The Key Company Permits listed on Schedule 3.9(a)
include, without limitation, all Key Company Permits (i) issued by the FCC to
the Company or any Company Subsidiary, (ii) authorizing the construction, launch
or operation in their assigned orbital locations of Company Satellites (as
defined below) or construction and operation of Company Ground Stations (as
defined below), including without limitation the agreement with the Republic of
the Marshall Islands and the license granted by the Federal Republic of Germany,
and (iii) issued to the Company or any Company Subsidiary by Governmental
Entities that regulate broadcasting or communications services, authorizing the
Company or the Company Subsidiaries to provide broadcasting or communications
services. The parties acknowledge that (i) the approval for the Orion 2
satellite is a conditional approval subject to the conditions described in the
orders and agreements relating thereto and (ii) the approval for the Orion 3
satellite results from an agreement with the Republic of the Marshall
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Islands (and no further regulatory approvals from the Republic of the Marshall
Islands are necessary for such construction, launch and operation of the Orion 3
satellite).
Schedule 3.9(a) also sets forth a true and complete list of
all Company Permits issued by the FCC, the Marshall Islands or the Federal
Republic of Germany (including applications therefor) which are not Key Company
Permits or VSATs ("Other Permits"). To the best of the Company's knowledge, the
Other Permits are in full force and effect or, in the case of applications
therefor, the Company knows of no reason why the same should not be granted.
Schedule 3.9(a) also sets forth a true and complete list of all pending
applications for Company Permits that would be Key Company Permits required to
be listed in such Schedule if issued or granted and if the satellites which they
relate were owned by the Company, all pending applications by the Company or any
Company Subsidiary with the FCC and all pending applications by the Company or
any Company Subsidiary for modification, extension or renewal of Key Company
Permits (the "Key Applications").
The Key Company Permits held by the Company or Company
Subsidiaries and listed on Schedule 3.9(a) include all permits, licenses and
approvals from all Governmental Entities which are necessary for the Company and
the Company Subsidiaries to (i) operate the Orion 1 satellite in its present
orbital location and provide communications services (and broadcast services, if
any are provided by the Company or Company Subsidiaries) therefrom, operate
ground stations communicating therewith, including, without limitation, the
related broadcasting facility assets consisting of land, building, fixtures,
equipment, improvements (if any) and telemetry, tracking and control equipment
that is owned or leased by the Company or a Company Subsidiary (each a "Company
Ground Station" and collectively the "Company Ground Stations"), and own, lease
and operate their properties and to carry on their business as currently
conducted using the Orion 1 satellite, and (ii) construct, launch and operate,
at their assigned orbital locations, the proposed Orion 2 and Orion 3 satellites
(collectively with the Orion 1 satellite, the "Company Satellites"), except as
set forth in the last sentence of the first paragraph of this subsection (a) and
in each case for permits, licenses and approvals whose absence or revocation
would not individually or in the aggregate have a Company Material Adverse
Effect (without giving effect to any limitation as of "materiality" or "Company
Material Adverse Effect" in the definition of Key Company Permits).
Each of the Company and the Company Subsidiaries has fulfilled
and complied in all material respects with its obligations under each of the Key
Company Permits and the Key Applications owned, held or possessed by it, and no
event has occurred or condition or state of facts exists which constitutes or,
after notice or lapse of time or both, would constitute a breach or default
under any Key Company Permit or Key Applications and which permits or, after
notice or lapse of time or both, would permit revocation or termination of any
such Key Company Permit or Key Application, and neither the Company nor any
Company Subsidiary has received or has knowledge of any written notice of
cancellation or default or of any dispute concerning any Key Company Permit or
Key Application, or of any such event, condition or state of facts that would
constitute a default the effect of which would be revocation or termination of
such Key Company Permit or Key Application, except, in each case, any of the
foregoing which individually or in the aggregate would not have a Company
Material Adverse Effect. Each of the Key Company Permits is validly held by the
entities listed on Schedule 3.9(a), is in full force and
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effect in all material respects, is free and clear of all liens (other than
permitted liens), is unimpaired in any material respect by acts or omissions of
the Company or its employees, partners or affiliates, will expire on the date
shown on Schedule 3.9(a), is valid for the balance of its current term, and is
not subject to any restriction or condition that limits in any material respect
the full operation of the Company's and Company Subsidiaries' business as now
operated.
The Company has not received any complaint that any of the
Company Satellites or Company Ground Stations is causing objectionable
interference to the transmissions or reception of any other radio communications
facility, and to the Company's best knowledge, no other radio communications
facility is causing objectionable interference to the transmissions from or the
receipt of signals by any Company Satellite or Company Ground Station. None of
the Key Company Permits issued prior to the date hereof is the subject of any
pending renewal application; no renewal of any Key Company Permit issued by the
FCC would constitute a major environmental action under the rules and
regulations promulgated by the FCC (the "FCC Rules"), excluding the impact of
the FCC's new RF radiation rules adopted by the FCC in the ET Docket No. 93-62
on August 1, 1996; and the Company is not aware of any reason why the Key
Company Permits will not be renewed in the ordinary course or why any of the Key
Company Permits might be revoked. The Company knows of the existence of no fact
that, under any Key Company Permits and present law relating thereto, would
disqualify the Company from consummating the Merger within the time contemplated
herein (other than matters disclosed on Schedule 5.14).
All information contained in any pending Key Application is
true, correct and complete in all material respects. The Company has duly filed
or caused to be filed with the FCC or any other Governmental Entity all required
material reports, statements, documents, registrations, filings or submissions
with respect to the operations of the business of the Company and the Company
Subsidiaries, the Key Company Permits, the Company's and Company Subsidiaries'
ownership of their assets and the pending applications by the Company or any
Company Subsidiary for Key Company Permits or for modification, extension or
renewal of Company Permits, in each case as required by the FCC or any other
Governmental Entity. All such filings complied in all material respects with
applicable laws when made and no material deficiencies have been asserted with
respect to any such filings.
Except for rulemaking proceedings affecting the satellite
industry in general, no judgment, decree, order or notice of violation has been
issued by the FCC (or other Governmental Entity) which permits or contemplates
revocation, modification or termination or any of the Key Company Permits or
which would result in any material impairment of any rights thereunder. The
business of the Company and the Company Subsidiaries (where "business" shall be
deemed to include the Orion 1 satellite and the proposed Orion 2 satellite and
Orion 3 satellite), is not being conducted in violation of any applicable law,
statute, ordinance, regulation or judgment or any Key Company Permit, order,
decree, concession, grant or other authorization of any Governmental Entity, in
each case except for violations that, individually or in the aggregate, would
not be reasonably likely to have a Company Material Adverse Effect. Except for
rulemaking proceedings affecting the satellite industry in general, no
complaints, proceedings or applications are pending, or to the Company's best
knowledge, threatened, at the FCC or any other Governmental Entity, that would
result in the revocation, forfeiture, adverse modification, non-renewal or
suspension of any of the Key Company Permits, the denial of any pending Key
Application, the issuance against the Company or any Company Subsidiary of a
cease and desist order, or the imposition of any administrative actions by the
FCC or any
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other Governmental Entity with respect to the Key Company Permits, in each case
that would have, whether individually or in the aggregate, a Company Material
Adverse Effect.
(b) Neither the Company nor any Company Subsidiary or
affiliate has taken, is taking or will take, or has allowed or will allow on its
behalf to be taken, any action which would have violated or would violate the
United States Foreign Corrupt Practices Act of 1977, the US Export
Administration Act, as amended, or any laws to which such party or persons is
subject, relating in each case to payments for the purpose of influencing an act
or decision of a Governmental Entity or government official, except for
violations that individually or in the aggregate would not have a Company
Material Adverse Effect; provided, however, that nothing in this sentence shall
be deemed to subject any party or person to any law to which such party or
person would not otherwise be subject. Each of the Company and the Company
Subsidiaries is in material compliance with all domestic and, to the knowledge
of the Company, foreign laws restricting or regulating the export of technology
to foreign countries, except for violations that individually or in the
aggregate would not have a Company Material Adverse Effect.
(c) Schedule 3.9(c) contains a list of all consultations and
similar arrangements that have been effectuated with INTELSTAT, EUTELSAT and
other similar intergovernmental entities (collectively the "IGO Determinations")
with respect to the Company Satellites that are needed to operate the business
of the Company and the Company Subsidiaries as it is now being conducted. Except
as set forth on such schedule, the Company is not aware of any material
difficulties in obtaining any other determinations from such entities with
respect to any satellite now operated by the Company or any Company Subsidiary
or for which the Company or any Company Subsidiary has applied for a Company
Permit, except for those that individually or in the aggregate would not have a
Company Material Adverse Effect.
SECTION 3.10. Taxes.
Except as set forth in Schedule 3.10, the Company and the
Company Subsidiaries have prepared and filed on a timely basis with all
appropriate Governmental Entities all material returns, reports, information
statements and other documentation in respect of Taxes that they are required to
file on or prior to the Closing Date or by the date therefor including
extensions, and all such returns, reports, information statements and other
documentation are correct and complete in all material respects. Except as set
forth in Schedule 3.10, the Company and the Company Subsidiaries have paid in
full all Taxes (other than Taxes, the failure to pay which would not,
individually or in the aggregate, have a Company Material Adverse Effect) due on
or before the Closing Date and, in the case of material Taxes accruing on or
before the Closing Date that are not due on or before the Closing Date, the
Company has made adequate provisions in its books and records and financial
statements for such payment. Except as set forth in Schedule 3.10, the Company
and the Company Subsidiaries have withheld from payments made to its present or
former employees, contractors, officers and directors, creditor or other third
party, all amounts required by law to be withheld except where the liability
would not, individually or in
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the aggregate, have a Company Material Adverse Effect, and has, where required,
remitted such amounts within the applicable periods to the appropriate
Governmental Entities. In addition, except as set forth in Schedule 3.10, (a)
there are no assessments of, or claims against, the Company or the Company
Subsidiaries with respect to Taxes, the liability for which would, individually
or in the aggregate, have a Company Material Adverse Effect, that are
outstanding; (b) no Governmental Entity is conducting an examination or audit of
the Company or any Company Subsidiary in respect of Taxes and neither the
Company nor any Company Subsidiary has received notice of any such examination
or audit from any Governmental Entity; and (c) neither the Company nor any
Company Subsidiary has executed or filed any agreement extending the period of
assessment or collection of any Taxes which remain in effect. For the purpose of
this Agreement, the term "Tax" (including, with correlative meaning, the terms
"Taxes" and "Taxable") shall include, except where the context otherwise
requires, all federal, state, local and foreign income, profits, franchise,
gross receipts, payroll, sales, employment, use, property, withholding, excise,
occupancy and other taxes, duties or assessments or claims of any nature
whatsoever, together with all interest, penalties and additions imposed with
respect to such amounts.
SECTION 3.11. Intellectual Property.
Schedule 3.11 sets forth a listing and description of all
material domestic, foreign, common law, registered and pending applications for
patents, trademarks, service marks, logos, slogans, designs, copyrights, trade
names, and all material intellectual property licenses running to or from the
Company or any Company Subsidiary relating to the Company's or any Company
Subsidiaries' businesses or owned by the Company or any Company Subsidiary.
Unless expressly set forth otherwise on Schedule 3.11, the Company and the
Company Subsidiaries own (or where indicated on Schedule 3.11, have a right to
use), free and clear of any liens, security interests, encumbrances or claims of
others, all patents, trademarks, service marks, logos, slogans, designs,
copyrights, tradenames, design registrations, and other intellectual property
listed on Schedule 3.11 and any trade secrets, know-how, confidential
information, material computer programs (including any source code),
documentation, engineering and technical drawings, processes, methodologies,
trade dress, mask works and technology, in each case material to the conduct of
the business of the Company and the Company Subsidiaries taken as a whole (all
of the foregoing items collectively referred to as the "Company Intellectual
Property"). Except as set forth on Schedule 3.11, (a) no proceedings are pending
or, to the Company's knowledge, threatened in writing, which challenge the
validity of the ownership by the Company and/or any Company Subsidiary of the
Company Intellectual Property; (b) the Company has no knowledge of any
infringement or infringing use of any of the Company Intellectual Property or
licenses by any person or entity, and the Company and the Company Subsidiaries
have, and as of the Closing Date will have, good and valid title to all of the
Company Intellectual Property owned by the Company or Company Subsidiaries and
their licenses and other rights to use will be adequate for conducting the
businesses of the Company and the Company Subsidiaries and enforceable in
accordance with their terms; (c) to the Company's knowledge, no infringement of
any material intellectual property right or other proprietary right of any third
party has occurred or will result in any way from the signing and execution of
this Agreement or the consummation of any or all of the transactions
contemplated hereby, and no written claim has been made by any third party based
upon an allegation of any such infringement; (d) the material Company
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Intellectual Property is valid and in full force and effect and no aspect
thereof is subject to any outstanding order, ruling, decree, judgment or
stipulation by or with any court, arbitrator or administrative agency; and (e)
there are no restrictions on the direct or indirect transfer of any license, or
any interest therein, held by the Company or any Company Subsidiary in respect
of the Company Intellectual Property.
SECTION 3.12. Material Contracts.
(a) Schedule 3.12(a) sets forth a complete and correct list,
as of the date of this Agreement, of all agreements of the following type to
which the Company or a Company Subsidiary is a party or may be bound
(collectively, the "Company Material Contracts"): (i) agreements filed as an
exhibit to the Company SEC Reports and each agreement that would have been
required to be filed as an exhibit to the Company SEC Reports if such agreement
had been entered into as of the date of filing any such Company SEC Report; (ii)
employment, severance, termination, consulting and retirement agreements; (iii)
loan agreements, indentures, letters of credit, mortgages, notes and other debt
instruments evidencing indebtedness in excess of five hundred thousand dollars
($500,000), other than those relating to intercompany debt among the Company and
the Company Subsidiaries; (iv) agreements that require aggregate future payments
of more than five hundred thousand dollars ($500,000) (other than purchase
orders and sales contracts entered into in the ordinary course of business); (v)
agreements involving payments in excess of two hundred fifty thousand dollars
($250,000) concerning any provisions with respect to a "change in control"; (vi)
material agreements with any key employee, director, officer or beneficial owner
(as determined pursuant to Rule 13d-3 promulgated under the Exchange Act) of 5%
or more of the Company's Common Stock; and (vii) agreements for a remaining term
of five (5) years or more with any customer of the Company or any Company
Subsidiary.
(b) Except as set forth in Schedule 3.12(b), all the Company
Material Contracts are valid and in full force and effect on the date hereof
except to the extent they have previously expired in accordance with their
terms, and neither the Company nor any Company Subsidiary has (or has any
knowledge that any party thereto has) violated any provision of, or committed or
failed to perform any act which with or without notice, lapse of time or both
would constitute a default under the provisions of, any Company Material
Contract, except for defaults which, individually or in the aggregate, would not
reasonably be expected to have a Company Material Adverse Effect. True and
complete copies of all Company Material Contracts have been delivered to
Acquiror or made available for inspection by Acquiror.
(c) As of August 31, 1997, the contracts, agreements,
commitments, arrangements, leases (including with respect to personal property)
that represent obligations of third parties to make payments to the Company or
any Company Subsidiary, as the case may be, in exchange for the sale or lease of
transponder capacity, have an aggregate stated amount of unpaid payments owing
to the Company or any Company Subsidiary, as the case may be, of approximately
$263 million over the remaining stated term of such contracts (the "Backlog")
(prior to any reserve for doubtful accounts or other similar allowances or
deductions). The Backlog represents amounts that, assuming the due performance
by each party of its obligations under each contract and the occurrence of no
event that would permit termination of a contract without liability to the
terminating party, will be due for, and will arise out of, bona fide sales and
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delivery of goods, performance of services and other business transactions,
unless the underlying contract thereto is properly terminated in accordance with
the terms thereof. Except as set forth on Schedule 3.12(c), neither the Company
nor any Company Subsidiary is, or has received any notice or has any knowledge
that any other party is, in default in any material respect under any contract
representing any material portion of the Backlog, other than (i) payment
defaults under transponder lease agreements which are not more than 90 days past
due and (ii) defaults or terminations under transponder lease agreements that
are promptly replaced by contracts providing for reasonably equivalent or
superior backlog payments.
SECTION 3.13. Employee Benefit Plans.
(a) Schedule 3.13 sets forth a list of all of the material
pension, retirement, profit-sharing, deferred compensation, stock option,
employee stock ownership, severance pay, vacation or bonus plans or agreements
or other material incentive plans or agreements, all other material written
employee programs, arrangements or agreements and all other material employee
benefit plans or fringe benefit plans, including, without limitation, all
"employee benefit plans" as that term is defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA") (collectively,
"Benefit Plans"), currently adopted, maintained by, sponsored in whole or in
part by, or contributed to by the Company or any entity required to be
aggregated with the Company which is a member of the "controlled group of
corporations" which includes the Company within the meaning of Section 414(b) or
(c) of the Code (each, a "Company Commonly Controlled Entity") for the benefit
of present and former employees or directors of the Company and of each Company
Subsidiary or their beneficiaries, or providing benefits to such persons in
respect of services provided to any such entity (collectively, the "Company
Benefit Plans"). Any Company Benefit Plan which is an "employee pension benefit
plan," as that term is defined in Section 3(2) of ERISA, is referred to herein
as a "Company ERISA Plan."
(b) Each of the Company Benefit Plans intended to be
"qualified" within the meaning of Section 401(a) of the Code has been determined
by the Internal Revenue Service to be so qualified and, to the Company's
knowledge, no circumstances exist that could reasonably be expected by the
Company to result in the revocation of any such determination. Each of the
Company Benefit Plans is in compliance with the applicable terms of ERISA and
the Code and any other applicable laws, rules and regulations the breach or
violation of which could result in a material liability to the Company or any
Company Commonly Controlled Entity.
(c) No Company ERISA Plan which is a defined benefit pension
plan has any "unfunded current liability," as that term is defined in Section
302(d)(8)(A) of ERISA, and the present fair market value of the assets of any
such plan equals or exceeds the plan's "benefit liabilities," as that term is
defined in Section 4001(a)(16) of ERISA, when determined under actuarial factors
that would apply if the plan terminated in accordance with all applicable legal
requirements.
(d) Except as disclosed in Schedule 3.13, no Company Benefit
Plan is or has been a multiemployer plan within the meaning of Section 3(37) of
ERISA (a "Multiemployer Plan"). Neither the Company nor any Company Commonly
Controlled Entity has completely or
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partially withdrawn from any Multiemployer Plan. No termination liability to the
Pension Benefit Guaranty Corporation or withdrawal liability to any
Multiemployer Plan that is material in the aggregate has been or is reasonably
expected to be incurred with respect to any Multiemployer Plan by the Company or
any Company Commonly Controlled Entity.
(e) The Company has furnished to Acquiror complete copies, as
of the date hereof, of all of the Company Benefit Plans that have been reduced
to writing, together with all documents establishing or constituting any related
trust, annuity contract, insurance contract or other funding instrument. The
Company has furnished to Acquiror complete copies of all existing current plan
summaries, employee booklets, personnel manuals and other material documents or
written materials concerning the Company Benefit Plans.
(f) Except as set forth on Schedule 3.13, there are no Company
Benefit Plans which provide for payments which would not be deductible for
Federal income tax purposes by reason of Section 280G of the Code.
SECTION 3.14. Properties; Assets.
(a) Except as set forth in Schedule 3.14(a), the Company or
one of the Company Subsidiaries (a) has good and marketable title to all the
properties and assets reflected in the consolidated balance sheet of the Company
dated as of June 30, 1997 (the "Company Balance Sheet") as being owned by the
Company or one of the Company Subsidiaries (except properties sold or otherwise
disposed of since the date thereof in the ordinary course of business), or
acquired after the date thereof which are material to the Company's business on
a consolidated basis, free and clear of all Encumbrances except (i) statutory
liens securing payments not yet due, and (ii) such imperfections or
irregularities of title, claims, liens, charges, security interests or
encumbrances as do not materially affect the use of the properties or assets
subject thereto or affected thereby or otherwise materially impair business
operations at such properties, and (b) is the lessee of all leasehold estates
reflected in the Company Balance Sheet (except for leases that have expired by
their terms since the date thereof) or acquired after the date thereof which are
material to its business on a consolidated basis and is in possession of the
properties purported to be leased thereunder, and, to the knowledge of the
Company, each such lease is valid without default thereunder by the lessee. The
assets and properties of the Company and the Company Subsidiaries, taken as a
whole, are in good operating condition and repair (ordinary wear and tear
excepted), and constitute all of the assets and properties which are required
for the businesses and operations of the Company and the Company Subsidiaries as
presently conducted.
(b) Each Company Ground Station other than Very Small Aperture
Terminal (VSAT) earth stations (the "VSAT Stations") now operated by the Company
or a Company Subsidiary (a "Major Station") is listed on Schedule 3.14(b), and,
except as set forth on such schedule, with respect to each such Major Station,
the improvements thereto and all components used in connection therewith are (i)
in good operating condition and repair and are suitable for their intended
purposes and (ii) supported by a back-up, fuel-powered electricity generator
capable of generating power sufficient to meet the requirements of the
operations conducted at the Major Station. The transmission/reception systems
and programming and data broadcasting systems at each such Major Station have
the redundancies that are set forth on Schedule 3.14(b).
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The VSAT Stations, taken as a whole, are in good operating condition and repair,
ordinary wear and tear excepted, and are suitable for their intended purposes.
(c) Set forth on Schedule 3.14(c) are the following: (i) a
complete and accurate list, by orbital location, of each Company Satellite, (ii)
a true and correct copy of a satellite loading chart listing each transponder on
the Satellite, along with the type of transponder and the customer or group of
related customers that have purchased services utilizing capacity on such
transponder and the amount of such capacity allocated to such customer(s), and
(iii) the most recent "Health Status Report," summarizing all spacecraft related
incidents and anomalies known to the Company as well as the current status, to
the best knowledge of the Company, of the subsystems on the Company Satellites.
(d) Except as set forth on Schedule 3.14(d), to the best
knowledge of the Company the equipment to provide tracking, telemetry and
control services related to each Satellite is (i) in good operating condition
and repair, ordinary wear and tear excepted, and (ii) not in need of maintenance
or repairs except for ordinary, routine maintenance and repairs.
(e) Except as set forth on Schedule 3.14(e), to the best
knowledge of the Company, no person or entity has asserted that it has rights to
operate a spacecraft in a manner that would result in interference with respect
to any satellite now operated by the Company or any Company Subsidiary or for
which the Company or any Company Subsidiary has applied for a permit. Schedule
3.14(e) contains a list of all satellite coordination agreements to which the
Company or any Company Subsidiary are a party, a summary of all operational or
technical limitations set forth therein, and a summary of all coordination
discussions in which the Company or the Company Subsidiaries has been engaged in
the past three (3) years with other persons or entities with regard to any
Satellite now operated by the Company or any Company Subsidiary or for which the
Company or any Company Subsidiary has applied for a permit.
(f) Schedule 3.14(f) contains a summary, by orbital location,
of the status of frequency registration at the International Telecommunication
Union, for each Satellite operated, or proposed to be operated during the next
three (3) years, by the Company or any Company Subsidiary, including the
identity of the sponsoring administration and frequency bands covered.
SECTION 3.15. Labor Relations.
Except as set forth in Schedule 3.15, Neither the Company nor
any Company Subsidiary is a party to any collective bargaining agreement or
other contract or agreement with any labor organization or other representative
of any of the employees of the Company or any Company Subsidiary. Except as set
forth in Schedule 3.15, the Company and each Company Subsidiary is in compliance
in all material respects with all laws relating to the employment or the
workplace, including, without limitation, provisions relating to wages, hours,
collective bargaining, safety and health, work authorization, equal employment
opportunity, immigration and the withholding of income taxes, unemployment
compensation, worker's compensation, employee privacy and right to know and
social security contributions.
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SECTION 3.16. Environmental Matters.
(a) Except as set forth in Schedule 3.16 and except for
matters which would not have a Company Material Adverse Effect, (i) the Company
and each Company Subsidiary is in compliance with all applicable Environmental
Laws (as defined below) in effect on the date hereof; (ii) neither the Company
nor any Company Subsidiary has received any written communication that alleges
that the Company or any Company Subsidiary is not in compliance in all material
respects with all applicable Environmental Laws in effect on the date hereof;
(iii) all material permits and other governmental authorizations currently held
by the Company and each Company Subsidiary pursuant to the Environmental Laws
("Environmental Permits") are in full force and effect, the Company and each
Company Subsidiary is in compliance with all of the terms of such Environmental
Permits and authorizations, and no other Environmental Permits or authorizations
are required by the Company or any Company Subsidiary for the conduct of their
respective businesses on the date hereof; and (iv) the management, handling,
storage, transportation, treatment, and disposal by the Company and each Company
Subsidiary of any Hazardous Materials (as defined below) has been in compliance
with all applicable Environmental Laws.
(b) Except as set forth in Schedule 3.16 and except for
Environmental Claims (as defined below) which would not have a Company Material
Adverse Effect, there is no Environmental Claim pending or, to the knowledge of
the Company, threatened against or involving the Company or any of the Company
Subsidiaries or against any person or entity whose liability for any
Environmental Claim the Company or any of the Company Subsidiaries has or may
have retained or assumed either contractually or by operation of law.
(c) Except as set forth in Schedule 3.16 and except for
matters which would not have a Company Material Adverse Effect, to the knowledge
of the Company, there are no past or present actions or activities by the
Company or any Company Subsidiary involving the storage, treatment, release,
emission, discharge, disposal or arrangement for disposal of any Hazardous
Materials, that could reasonably form the basis of any Environmental Claim
against the Company or any Company Subsidiary or against any person or entity
whose liability for any Environmental Claim the Company or any Company
Subsidiary may have retained or assumed either contractually or by operation of
law.
(d) As used herein, these terms shall have the following
meanings:
(i) "Environmental Claim" means any and all administrative,
regulatory or judicial actions, suits, demands, demand letters,
directives, claims, liens, investigations, proceedings or notices of
noncompliance or violation (written or oral) by any person or
governmental authority alleging potential liability arising out of,
based on or resulting from the presence, or release or threatened
release into the environment, or any exposure to, of any Hazardous
Materials at any property or location owned or leased by the Company or
any Company Subsidiary (for purposes of this Section 3.16) or other
circumstances forming the basis of any violation or alleged violation
of any Environmental Law.
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<PAGE>
(ii) "Environmental Laws" means all applicable foreign,
federal, state and local laws (including the common law), rules,
requirements and regulations relating to pollution, the environment
(including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or protection of human
health as it relates to the environment including, without limitation,
laws and regulations relating to releases of Hazardous Materials, or
otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous
Materials or relating to management of asbestos in buildings.
(iii) "Hazardous Materials" means wastes, substances, or
materials (whether solids, liquids or gases) that are deemed hazardous,
toxic, pollutants, or contaminants under any Environmental Laws,
including, without limitation, substances defined as "hazardous
substances," "toxic substances," "radioactive materials, including
sources of ionizing and nonionizing radiation," "petroleum products or
wastes," or other similar designations in, or otherwise subject to
regulation under, any Environmental Law.
SECTION 3.17. Insurance.
Schedule 3.17 contains a list of all insurance policies of
title, property, fire, casualty, liability, life, workmen's compensation, libel
and slander, and other forms of insurance in force at the date thereof with
respect to the Company and the Company Subsidiaries. All such insurance
policies: (a) insure against such risks, and are in such amounts, as are
appropriate and reasonable, in the judgment of the Company's Board of Directors,
considering the Company and the Company Subsidiaries' properties, businesses and
operations; (b) are in full force and effect; and (c) are valid, outstanding,
and enforceable. Neither the Company nor any of the Company Subsidiaries has
received or given notice of cancellation with respect to any of the material
insurance policies. The Company is in compliance with the provisions of the
Indentures (as defined below) regarding insurance.
SECTION 3.18. Board Approval; Vote Required.
The Board of Directors of the Company has determined that the
transactions contemplated by this Agreement are in the best interests of the
Company and its stockholders and has resolved to recommend to such stockholders
that they vote in favor thereof.
SECTION 3.19. Opinion of Financial Advisor.
The Company's Board of Directors has received the written
opinion of Morgan Stanley & Co. Incorporated that, as of the date of this
Agreement, the consideration to be received pursuant to the Agreement is fair
from a financial point of view to the holders of shares of Common Stock (other
than Acquiror and its affiliates) and, assuming the conversion of Preferred
Stock into Common Stock in accordance with its terms, to the holders of
Preferred Stock. A copy of such opinion has been delivered to Acquiror, and such
opinion has not been withdrawn or modified in any material respect.
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<PAGE>
SECTION 3.20. Brokers.
Except for Morgan Stanley & Co. Incorporated, 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.
SECTION 3.21. Takeover Provisions Inapplicable.
Assuming Acquiror and its "associates" and "affiliates" (as
defined in Section 203 of the Delaware Law in effect as of the date hereof)
collectively beneficially own and have beneficially owned at all times during
the three year period prior to the date hereof less than fifteen percent (15%)
of the Common Stock outstanding (other than the Common Stock subject to the
Principal Stockholder Agreement), Section 203 of the Delaware Law is, and shall
be, inapplicable to the Merger and the transactions contemplated by this
Agreement, including the Principal Stockholder Agreement.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF MERGER SUB
Acquiror and Merger Sub jointly and severally represent and
warrant to the Company as follows:
SECTION 4.1. Organization and Qualification.
Merger Sub is a corporation duly organized, validly existing
and in good standing under Delaware Law. Merger Sub was formed solely for the
purpose of engaging in the transactions contemplated by this Agreement. As of
the date of this Agreement, except for obligations or liabilities incurred in
connection with its incorporation or organization and the transactions
contemplated by this Agreement, Merger Sub has not incurred, directly or
indirectly, any obligations or liabilities or engaged in any business activities
of any type or kind whatsoever or entered into any agreements or arrangements
with any person.
SECTION 4.2. Certificate of Incorporation and Bylaws.
Merger Sub has heretofore made available to the Company a
complete and correct copy of the certificate of incorporation and the bylaws of
Merger Sub, each as amended to date. Such certificate of incorporation and
bylaws are in full force and effect. Merger Sub is not in violation of any of
the provisions of its certificate of incorporation or bylaws.
SECTION 4.3. Authority.
Merger Sub has the necessary corporate power and authority to
enter into this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by Merger Sub and the consummation by Merger Sub of the
transactions contemplated hereby have been duly and
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<PAGE>
validly authorized by all necessary corporate action and no other corporate
proceedings on the part of Merger Sub are necessary to authorize this Agreement
or to consummate the transactions contemplated hereby. This Agreement has been
duly executed and delivered by Merger Sub and, assuming the due authorization,
execution and delivery of this Agreement by the Company and Acquiror,
constitutes a legal, valid and binding obligation of Merger Sub, enforceable in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws of
general applicability relating to or affecting creditors' rights generally and
by the application of general principles of equity.
SECTION 4.4. No Conflict; Required Filings and Consents.
(a) The execution and delivery of this Agreement by Merger Sub
do not, and the performance by Merger Sub of its obligations under this
Agreement will not, (i) conflict with or violate the certificate of
incorporation or bylaws of Merger Sub, (ii) subject to compliance with the
requirements set forth in Section 4.4(b) below, conflict with or violate any
law, statute, ordinance, rule, regulation, order, judgment or decree applicable
to Merger Sub or by which any of its properties is bound or affected, or (iii)
result in any breach of or constitute a default (or an event which with notice
or lapse of time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, or result in
the creation of any Encumbrance on any of the properties or assets of Merger Sub
pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument or obligation to which Merger Sub
is a party or by which Merger Sub or any of its properties or assets is bound or
affected, except, in the case of clauses (ii) and (iii) above, for any such
conflicts, violations, breaches, defaults or other alterations or occurrences
that would not prevent or delay consummation of the Merger in any material
respect, or otherwise prevent Merger Sub from performing its obligations under
this Agreement in any material respect.
(b) The execution and delivery of this Agreement by Merger Sub
does not, and the performance of this Agreement by Merger Sub will not, require
any consent, approval, authorization or permit of, or filing with or
notification to, any Governmental Entity, except (i) for (A) applicable
requirements, if any, of the Exchange Act, state takeover laws, the NASD, the
HSR Act, the Communications Act and the FCC, (B) applicable requirements, if
any, of the consents, approvals, authorizations or permits described in Schedule
4.4, and (C) filing and recordation of appropriate merger documents as required
by Delaware Law and (ii) where 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 in any material respect.
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ARTICLE V.
REPRESENTATIONS AND WARRANTIES
OF ACQUIROR
Acquiror represents and warrants to the Company as follows:
SECTION 5.1. Organization and Qualification; Subsidiaries.
Each Subsidiary of Acquiror, Globalstar Telecommunications
Limited, a Bermuda company, and Globalstar, L.P., a Delaware limited partnership
(each an "Acquiror Subsidiary" and collectively, the "Acquiror Subsidiaries,")
and Acquiror is a corporation or partnership duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization. The
Acquiror and each Acquiror Subsidiary is duly qualified to conduct its business,
and is in good standing, in each jurisdiction where the character of its
properties owned, operated or leased or the nature of its activities makes such
qualification necessary, except for such failures which would not in the
aggregate have an Acquiror Material Adverse Effect (as defined below). The
Acquiror and each Acquiror Subsidiary has the requisite power and authority and
any necessary governmental authority, franchise, license or permit to own,
operate, lease and otherwise to hold and operate its assets and properties and
to carry on its business as now being conducted, except for such failures which
would not have an Acquiror Material Adverse Effect. As used herein, the term
"Acquiror Material Adverse Effect" means any material adverse effect on the
business, assets or condition (financial or otherwise), liabilities or
operations of Acquiror and Acquiror Subsidiaries taken as a whole.
SECTION 5.2. Certificate of Incorporation and Bylaws.
Acquiror has heretofore delivered to the Company a complete
and correct copy of the memorandum of association and the bye-laws of Acquiror,
each as amended to date. Such memorandum of association and bye-laws are in full
force and effect. Acquiror is not in violation of any of the provisions of its
memorandum of association or bye-laws.
SECTION 5.3. Capitalization.
As of September 30, 1997, the authorized capital stock of
Acquiror consists of: (a) seven hundred fifty million (750,000,000) shares of
common stock, par value $.01 per share of which two hundred million six hundred
thirty-three thousand one hundred sixty-one (200,633,161) shares are issued and
outstanding; (b) one hundred fifty million (150,000,000) shares of Series A
convertible preferred stock, par value $.01 per share ("Acquiror Series A
Preferred") of which forty-five million eight hundred ninety-six thousand nine
hundred seventy-seven (45,896,977) shares are issued and outstanding; (c) seven
hundred fifty thousand (750,000) shares Series B preferred stock, par value $.01
per share, no shares of which are outstanding; and (d) twenty million
(20,000,000) shares 6% Series C convertible redeemable preferred stock, par
value $.01 per share ("Acquiror Series C Preferred") of which fourteen million
nine hundred nine thousand four hundred thirty-seven (14,909,437) are
outstanding. As of September 30, 1997, (i) eleven million eight hundred thirteen
thousand five hundred (11,813,500) shares of common
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stock were reserved for issuance under the Acquiror's 1996 stock option plan;
(ii) four million eight hundred forty-three thousand two hundred (4,843,200)
shares of common stock were reserved for issuance under the Acquiror's savings
plan; (iii) two hundred thousand (200,000) shares of the Acquiror's common stock
were reserved for issuance under the Acquiror's non-employee director stock
option plan; and (iv) shares were reserved for issuance upon conversion of the
Acquiror Series A Preferred and Acquiror Series C Preferred. Other than as set
forth above, there are no options, warrants or other rights, agreements,
arrangements or commitments of any character relating to the issued or unissued
capital stock of Acquiror or obligating Acquiror to issue or sell any shares of
capital stock of, or other equity interests, in Acquiror.
As of the date hereof, there are no bonds, debentures, notes
or other indebtedness having the right to vote on any matters on which
Acquiror's stockholders may vote issued or outstanding. Except for agreements or
other documents set forth in Schedule 5.3, there are no outstanding contractual
obligations of Acquiror to repurchase, redeem or otherwise acquire any shares of
its capital stock. All of the issued and outstanding shares of Acquiror capital
stock have been duly authorized and validly issued and are fully paid and
nonassessable and not subject to preemptive rights. All of the Acquiror Shares
issuable in accordance with this Agreement in exchange for Capital Stock will be
when so issued duly authorized, validly issued, fully paid and nonassessable and
shall be delivered free and clear of all liens, claims, charges and encumbrances
of any kind or nature whatsoever. Except as set forth in Schedule 5.3, with
respect to each Acquiror Subsidiary that is a corporation, all of the
outstanding shares of capital stock of such Acquiror Subsidiary have been duly
authorized and validly issued and are fully paid and nonassessable. With respect
to each Acquiror Subsidiary that is a partnership, all of the partnership
interests owned by Acquiror, and with respect to each Acquiror Subsidiary that
is a corporation, all of the outstanding shares of capital stock owned by
Acquiror, are owned by Acquiror free and clear of any Encumbrances, except as
set forth in Schedule 5.3.
SECTION 5.4. Authority.
Acquiror has the necessary corporate power and authority to
enter into this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by Acquiror and the consummation by Acquiror of the transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate action and no other proceedings on the part of Acquiror are necessary
to authorize this Agreement or to consummate the transactions contemplated
hereby. This Agreement has been duly executed and delivered by Acquiror and,
assuming the due authorization, execution and delivery by the Company,
constitutes a legal, valid and binding obligation of Acquiror, enforceable in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws of
general applicability relating to or affecting creditors' rights generally and
by the application of general principles of equity. No vote of the stockholders
of Acquiror is necessary to approve this Agreement or any of the transactions
contemplated hereby.
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<PAGE>
SECTION 5.5. No Conflict; Required Filings and Consents.
(a) The execution and delivery of this Agreement by Acquiror
do not, and the performance by Acquiror of its obligations under this Agreement
will not, (i) conflict with or violate the memorandum of association or bye-laws
of Acquiror, (ii) subject to obtaining the approvals and compliance with the
requirements set forth in Section 5.5(b) below, conflict with or violate any
law, statute, ordinance, rule, regulation, order, judgment or decree applicable
to Acquiror or any Acquiror Subsidiary or by which any of its properties is
bound or affected, or (iii) result in any breach of or constitute a default (or
an event which with or without notice or lapse of time or both would become a
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of an Encumbrance on
any of the properties or assets of Acquiror pursuant to, any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which Acquiror or any Acquiror Subsidiary is a
party or by which Acquiror or any of its properties or assets is bound or
affected, except, in the case of clauses (ii) and (iii) above, for any such
conflicts, violations, breaches, defaults or other alterations or occurrences
that would not prevent or delay consummation of the Merger in any material
respect, or otherwise prevent Acquiror from performing its obligations under
this Agreement in any material respect, and would not have an Acquiror Material
Adverse Effect.
(b) The execution and delivery of this Agreement by Acquiror
does not, and the performance of this Agreement by Acquiror will not, require
any consent, approval, authorization or permit of, or filing with or
notification to, any Governmental Entity, except (i) for (A) applicable
requirements, if any, of the Securities Act, Blue Sky Laws, Exchange Act, state
takeover laws, the NYSE, the NASD, the HSR Act, the Communications Act and the
FCC, (B) applicable requirements, if any, of the consents, approvals,
authorizations or permits described in Schedule 5.5, and (C) filing and
recordation of appropriate merger documents as required by Delaware Law and (ii)
where 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 in any material respect, or otherwise prevent Acquiror from
performing its obligations under this Agreement in any material respect, and
would not have an Acquiror Material Adverse Effect.
SECTION 5.6. SEC Filings; Financial Statements.
(a) Acquiror and each Acquiror Subsidiary required to file has
filed all forms, reports, statements and other documents required to be filed
with the SEC since January 1, 1996, and has heretofore delivered to the Company,
in the form filed with the SEC since such date, together with any amendments
thereto, its (i) Annual Reports on Form 10-K, (ii) all Quarterly Reports on Form
10-Q, (iii) all proxy statements relating to meetings of stockholders (whether
annual or special), (iv) all reports on Form 8-K and (v) all other reports or
registration statements filed by Acquiror and such Acquiror Subsidiaries
(collectively, the "Acquiror SEC Reports"). As of their respective filing dates,
the Acquiror SEC Reports (i) complied as to form in all material respects with
the requirements of the Exchange Act and the Securities Act and (ii) did not at
the time they were filed contain any untrue statement of a material fact or omit
to state a material fact
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<PAGE>
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
(b) The audited consolidated financial statements and
unaudited interim financial statements of Acquiror included in the Acquiror SEC
Reports comply as to form in all material respects with applicable accounting
requirements and with the published rules and regulations of the SEC with
respect thereto. The financial statements, including all related notes and
schedules, contained in the Acquiror SEC Reports (or incorporated by reference
therein) present fairly in all material respects the consolidated financial
position of Acquiror and the Acquiror Subsidiaries as at the respective dates
thereof and the consolidated results of operations and cash flows of Acquiror
and the Acquiror Subsidiaries for the periods indicated, in accordance with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved (except as may be noted therein) and subject in
the case of interim financial statements to normal year-end adjustments.
SECTION 5.7. Absence of Certain Changes or Events.
Except as set forth in Schedule 5.7, since June 30, 1997,
Acquiror and the Acquiror Subsidiaries have not incurred any material liability,
except in the ordinary course of their businesses consistent with their past
practices, and Acquiror and the Acquiror Subsidiaries have conducted their
respective businesses in the ordinary course consistent with their past
practices. Except set forth in Schedule 5.7, since June 30, 1997, there has not
been any change in the business, condition (financial or otherwise) or results
of operations of Acquiror and the Acquiror Subsidiaries, including any
transaction, commitment, dispute, damage, destruction or loss, whether or not
covered by insurance, or other event of any character (whether or not in the
ordinary course of business) individually or in the aggregate which has had, or
is reasonably likely to have, an Acquiror Material Adverse Effect.
SECTION 5.8. Absence of Litigation.
Except as set forth in Schedule 5.8, as of the date hereof,
there are (a) no claims, actions, suits, investigations, or proceedings pending
or, to Acquiror's knowledge, threatened against Acquiror or any Acquiror
Subsidiary before any court, administrative, governmental, arbitral, mediation
or regulatory authority or body, domestic or foreign, that would be reasonably
likely to have an Acquiror Material Adverse Effect, or that challenge or seek to
prevent, enjoin, alter or materially delay the transactions contemplated hereby,
and (b) no judgments, decrees, injunctions or orders of any Governmental Entity
or arbitrator outstanding against Acquiror or any Acquiror Subsidiary that would
reasonably be likely to have an Acquiror Material Adverse Effect.
SECTION 5.9. Licenses and Permits; Compliance with Laws.
Except as set forth in Schedule 5.9 or disclosed in the
Acquiror SEC Reports:
(a) Acquiror and Acquiror Subsidiaries hold all permits,
licenses and approvals (none of which has been modified or rescinded and all of
which are in full force and
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effect) from all Governmental Entities (collectively, the "Acquiror Permits")
necessary for Acquiror and Acquiror Subsidiaries to own, lease and operate their
respective properties and to carry on their respective businesses, including,
without limitation, the construction, launch and operation of, and transmitting
to and from, each of the satellites and transponders owned by Acquiror (the
"Acquiror Satellites") and ground stations, including, without limitation, the
related broadcasting facility assets consisting of land, building, fixtures,
improvements and telemetry, tracking and control equipment that is owned or
leased by Acquiror or an Acquiror Subsidiary (each an "Acquiror Ground Station"
and collectively the "Acquiror Ground Stations") and the provision of
broadcasting or communications services, except for Acquiror Permits for which
the failure to obtain would not have a Acquiror Material Adverse Effect. Each of
Acquiror and Acquiror Subsidiaries has fulfilled and complied in all material
respects with its obligations under each of Acquiror Permits owned, held or
possessed by it, and no event has occurred or condition or state of facts exists
which constitutes or, after notice or lapse of time or both, would constitute a
breach or default under any Acquiror Permit and which permits or, after notice
or lapse of time or both, would permit revocation or termination of any such
Acquiror Permit, and neither Acquiror nor any Acquiror Subsidiary has received
or has knowledge of any written notice of cancellation or default or of any
dispute concerning any Acquiror Permit, or of any such event, condition or state
of facts that would constitute a default the effect of which would be revocation
or termination of such Acquiror Permit, in each case where these would be an
Acquiror Material Adverse Effect. If any of the Acquiror Permits that has been
issued prior to the date hereof is the subject of any pending renewal
application, Acquiror is not aware of any reason why the Acquiror Permits will
not be renewed in the ordinary course or why any of Acquiror Permits might be
revoked, except in each case where any such non-renewal or revocation would not
individually or in the aggregate be an Acquiror Material Adverse Effect. Except
for rulemaking proceedings affecting the satellite industry in general, no
judgment, decree, order or notice of violation has been issued by the FCC (or
other Governmental Entity) which permits or contemplates revocation,
modification or termination or any of Acquiror Permits or which would result in
any material impairment of any rights thereunder, except where there would be no
Acquiror Material Adverse Effect. The businesses of Acquiror and the Acquiror
Subsidiaries are not being conducted in violation of any applicable law,
statute, ordinance, regulation, judgment, Acquiror Permit, order, decree,
concession, grant or other authorization of any Governmental Entity, except for
violations that would not be reasonably likely to have an Acquiror Material
Adverse Effect.
(b) Acquiror is not aware of any material difficulties in
obtaining any IGO Determinations with respect to the Acquiror Satellites that
are needed to operate the business of Acquiror and Acquiror Subsidiaries, taken
as a whole, as it is now conducted, or for which Acquiror or any Acquiror
Subsidiary has applied for an Acquiror Permit, except for those that would not
have an Acquiror Material Adverse Effect.
SECTION 5.10. Taxes.
Except as set forth in Schedule 5.10, Acquiror and the
Acquiror Subsidiaries have prepared and filed on a timely basis with all
appropriate Governmental Entities all material returns, reports, information
statements and other documentation in respect of Taxes that they are required to
file on or prior to the Closing Date or by the date therefor including
extensions, and
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all such returns, reports, information statements and other documentation are
correct and complete in all material respects. Except as set forth in Schedule
5.10, Acquiror and the Acquiror Subsidiaries have paid in full all Taxes (other
than Taxes, the failure to pay which would not, individually or in the
aggregate, have a Acquiror Material Adverse Effect) due on or before the Closing
Date and, in the case of material Taxes accruing on or before the Closing Date
that are not due on or before the Closing Date, Acquiror has made adequate
provision in its books and records and financial statements for such payment.
Except as set forth in Schedule 5.10, Acquiror and the Acquiror Subsidiaries
have withheld from payments made to its present or former employees, officers
and directors all amounts required by law to be withheld, except where the
liability would not, individually or in the aggregate, have a Acquiror Material
Adverse Effect, and has, where required, remitted such amounts within the
applicable periods to the appropriate Governmental Entities. In addition, except
as set forth in Schedule 5.10 and except for such matters which would not
individually or in the aggregate have an Acquiror Material Adverse Effect, (a)
there are no assessments of, or claims against, Acquiror or the Acquiror
Subsidiaries with respect to Taxes, that are outstanding; (b) no Governmental
Entity is conducting an examination or audit of Acquiror or any Acquiror
Subsidiary in respect of taxes; and (c) neither Acquiror nor any Acquiror
Subsidiary has executed or filed any agreement extending the period of
assessment or collection of any taxes which remain in effect.
SECTION 5.11. Intellectual Property.
Unless expressly set forth otherwise on Schedule 5.11,
Acquiror and Acquiror Subsidiaries own or have a right to use, free and clear of
any liens, security interests, encumbrances or claims of others, all patents,
trademarks, service marks, logos, slogans, designs, copyrights, tradenames,
design registrations, and other intellectual property and any trade secrets,
know-how, confidential information, material computer programs (including any
source code), documentation, engineering and technical drawings, processes,
methodologies, trade dress, mask works and technology, in each case material to
the conduct of the business of Acquiror and Acquiror Subsidiaries taken as a
whole (all of the foregoing items collectively referred to as the "Acquiror
Intellectual Property"). Except as set forth on Schedule 5.11 or where there
would be no Acquiror Material Adverse Effect, (a) no proceedings are pending or,
to Acquiror's knowledge, threatened in writing, which challenge the validity of
the ownership by Acquiror and/or any Acquiror Subsidiary of any material
Acquiror Intellectual Property; (b) Acquiror has no knowledge of any
infringement or infringing use of any material Acquiror Intellectual Property or
licenses by any person or entity; (c) to Acquiror's knowledge, no infringement
of any material intellectual property right or other proprietary right of any
third party has occurred or will result in any way from the signing and
execution of this Agreement or the consummation of any or all of the
transactions contemplated hereby, and no written claim has been made by any
third party based upon an allegation of any such infringement; and (d) material
Acquiror Intellectual Property is valid and in full force and effect and no
aspect thereof is subject to any outstanding order, ruling, decree, judgment or
stipulation by or with any court, arbitrator or administrative agency.
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SECTION 5.12. Material Contracts.
Except as set forth in Schedule 5.12, all agreements filed as
exhibits to Acquiror SEC Reports and each agreement that would have been
required to be filed as an exhibit to Acquiror SEC Reports if such agreement had
been entered into prior to the date of filing any such Acquiror SEC Report
(collectively, the "Acquiror Material Contracts") are valid and in full force
and effect on the date hereof except to the extent they have previously expired
in accordance with their terms, and neither Acquiror nor any Acquiror Subsidiary
has (or has any knowledge that any party thereto has) violated any provision of,
or committed or failed to perform any act which with or without notice, lapse of
time or both would constitute a default under the provisions of, any Acquiror
Material Contract, except for defaults which would not reasonably be expected to
have an Acquiror Material Adverse Effect.
SECTION 5.13. Employee Benefit Plans.
(a) Each of the Benefit Plans currently adopted, maintained
by, sponsored in whole or in part by, or contributed to by Acquiror or any
entity required to be aggregated with Acquiror which is a member of the
controlled group of corporations which includes Acquiror within the meaning of
Section 414(b) or (c) of the Code (each, an "Acquiror Commonly Controlled
Entity") for the benefit of present and former employees or directors of
Acquiror and of each Acquiror Subsidiary or their beneficiaries, or providing
benefits to such persons in respect of services provided to any such entity
(collectively, the "Acquiror Benefit Plans") intended to be "qualified" within
the meaning of Section 401(a) of the Code has been determined by the Internal
Revenue Service to be so qualified and, to Acquiror's knowledge, no
circumstances exist that could reasonably be expected by Acquiror to result in
the revocation of any such determination. Each of the Acquiror Benefit Plans is
in compliance with the applicable terms of ERISA and the Code and any other
applicable laws, rules and regulations the breach or violation of which could
result in a material liability to Acquiror or any Acquiror Commonly Controlled
Entity.
(b) No Acquiror Benefit Plan which is an "employee pension
benefit plan," as that term is defined in Section 3(2) of ERISA (an "Acquiror
ERISA Plan") which is a defined benefit pension plan that is subject to Title IV
of ERISA has any "unfunded current liability," as that term is defined in
Section 302(d)(8)(A) of ERISA.
(c) No Acquiror Benefit Plan is a Multiemployer Plan. Neither
Acquiror nor any Acquiror Commonly Controlled Entity has completely or partially
withdrawn from any Multiemployer Plan. No termination liability to the Pension
Benefit Guaranty Corporation or withdrawal liability to any Multiemployer Plan
that is material in the aggregate has been or is reasonably expected to be
incurred with respect to any Multiemployer Plan by Acquiror or any Acquiror
Commonly Controlled Entity.
SECTION 5.14. Qualification of Acquiror.
Acquiror is and pending the Effective Time will be legally,
technically, financially and otherwise qualified under the Communications Act
and all rules, regulations and policies of
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the FCC to acquire, own and operate the material assets and business of the
Company and the Company Subsidiaries. Acquiror knows of the existence of no fact
that, under any Acquiror Permits and present law relating thereto, would
disqualify Acquiror from consummating the Merger within the time contemplated
herein. There are no facts or proceedings which would reasonably be expected to
disqualify Acquiror under the Communications Act or otherwise from acquiring or
operating any of the assets and business of the Company and the Company
Subsidiaries or would cause the FCC not to approve the FCC Application (as
defined in Section 7.4(a)). Acquiror has no knowledge of any fact or
circumstance relating to Acquiror or any of its affiliates that would reasonably
be expected to (a) except as set forth on Schedule 5.14, cause the filing of any
objection to the FCC Application, or (b) lead to a material delay in the
processing by the FCC of the FCC Application. No waiver of any FCC rule or
policy is necessary to be obtained for the approval of the FCC Application, nor
will processing pursuant to any exception or rule of general applicability be
requested or required in connection with the consummation of the transactions
herein.
SECTION 5.15. Brokers.
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 Acquiror.
ARTICLE VI.
COVENANTS
SECTION 6.1. Affirmative Covenants of the Company.
The Company hereby covenants and agrees that, prior to the
Closing Date, unless otherwise expressly contemplated by this Agreement or
consented to in writing by Acquiror, the Company shall, and shall cause each
Company Subsidiary to, (a) operate its business in the usual and ordinary course
consistent with past practices; (b) use its commercially reasonable efforts to
preserve substantially intact its business organization, maintain its rights and
franchises, retain the services of its respective principal officers and key
employees and maintain its relationship with its respective principal customers
and suppliers; (c) use its commercially reasonable efforts to maintain and keep
its properties and assets in as good repair and condition as at present,
ordinary wear and tear excepted; (d) use its commercially reasonable efforts to
keep in full force and effect insurance comparable in amount and scope of
coverage to that currently maintained; (e) prepare and file all tax returns
required to be filed in a timely manner, and in a manner consistent with prior
years and applicable laws and regulations; (f) timely file with the Commission
all reports required to be filed under the Exchange Act, which reports
(including the unaudited interim financial statements included in such reports)
shall comply with the Exchange Act, the rules and regulations promulgated
thereunder and all applicable accounting requirements; (g) operate its business
in accordance with the terms of its licenses, the Communications Act and the FCC
rules and policies and in all material respects with all other applicable laws;
(h) use its commercially reasonable efforts to maintain each Key Company Permit
in effect until the applicable construction projects are complete except where
(x) the loss
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of such Key Company Permit or pending Key Application would not, individually or
in the aggregate, have a Company Material Adverse Effect or (y) the maintenance
of any such Company Permit would require an expenditure which would be in
violation Section 6.2(e); (i) use its commercially reasonable efforts to enforce
its rights to have the transmissions to and from the Company Satellites and
Major Stations be free from interference from other radio communications
facilities (existing or proposed), to the extent that such interference is
prohibited by FCC Rules or inconsistent with rights accorded the Company
Satellites under the International Telecommunication Union's radio regulations
and shall promptly notify Acquiror of any actual or threatened interference; and
(j) proceed in the ordinary course of business with all pending applications
submitted by the Company or any Company Subsidiary with any Governmental Entity
and use its commercially reasonable efforts to ensure that such applications are
granted; provided, however, that in the event the Company or any of the Company
Subsidiaries deems it necessary to take certain actions that would otherwise be
prohibited by clauses (a)-(j) of this Section 6.1, the Company shall consult
with the President and Chief Operating Officer of Acquiror and Acquiror shall
consider in good faith the Company's request to take such action and not
unreasonably withhold or delay its consent for such action.
SECTION 6.2. Negative Covenants of the Company.
Except as expressly contemplated by this Agreement and except
as set forth in Schedule 6.2, or otherwise consented to in writing by Acquiror
(which approval shall not be unreasonably delayed or withheld), from the date
hereof until the Closing Date, the Company shall not, and shall cause each
Company Subsidiary not to, do any of the following:
(a) (i) increase the periodic compensation payable to or to
become payable to any of its directors or executive officers, except for
increases in salary, wages or bonuses payable or to become payable in the
ordinary course of business and consistent with past practice; (ii) grant any
severance or termination pay (other than pursuant to existing severance
arrangements or policies as in effect on the date of this Agreement) to, or
enter into or modify any employment or severance agreement with, any of its
directors, officers or employees; or (iii) adopt or amend any employee benefit
plan or arrangement, except as may be required by applicable law;
(b) declare or pay any dividend on, or make any other
distribution in respect of, outstanding shares of its capital stock, except as
required under the Certificates of Designations with respect to the Series C
Preferred Stock, as presently in effect;
(c) (i) redeem, repurchase or otherwise reacquire any shares
of its capital stock or any securities or obligations convertible into or
exchangeable for any share of its capital stock, or any options, warrants or
conversion or other rights to acquire any shares of its capital stock or any
such securities or obligations (except pursuant to agreements and documents as
set forth in Schedule 3.3 or Schedule 3.12, and except in connection with the
exercise of outstanding Options referred to in Schedule 3.3 in accordance with
their terms); (ii) effect any reorganization or recapitalization; or (iii)
split, combine or reclassify any of its capital stock or issue or authorize or
propose the issuance of any other securities in respect of, in lieu of, or in
substitution for, shares of its capital stock;
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(d) (i) issue, pledge, deliver, award, grant or sell, or
authorize or propose the issuance, pledge, delivery, award, grant or sale
(including the grant of any Encumbrances) of, any shares of any class of its
capital stock (including shares held in treasury), any securities convertible
into or exercisable or exchangeable for any such shares, or any rights, warrants
or options to acquire, any such shares (except pursuant to agreements or other
documents set forth on Schedule 3.12, except pursuant to the agreements and
documents (other than the Company Stock Option Plans) set forth in Schedule 3.3
and except for the issuance of shares upon the exercise of outstanding Options,
the issuance of options to employees with the written consent of Acquiror and
the issuance of shares under the Company Stock Purchase Plan as presently in
effect, but only to the extent such issuances are in the ordinary course of
business and consistent with past practice); or (ii) amend or otherwise modify
the terms of any such rights, warrants or options;
(e) acquire or agree to acquire, by merging or consolidating
with, by purchasing an equity interest in or a portion of the assets of, or by
any other manner, (i) any business or any corporation, partnership, association
or other business organization or division (other than a wholly-owned
Subsidiary) thereof or any satellite or other spacecraft the Company has not, on
the date hereof, previously agreed in writing to acquire, or otherwise acquire
or agree to acquire any assets of any other person or (ii) make or commit to
make any investments or capital expenditures, other than investments or capital
expenditures: (A) contemplated by the 1997 written business plan previously
furnished to Acquiror or by the 1998 written business plan to be furnished to
Acquiror (and the investments or capital expenditures of such plan shall be
subject to Acquiror's approval, which shall not be unreasonably withheld or
conditioned) (B) to replace any Company Satellite lost in a launch or in orbit;
(C) to continue capital programs now underway as described on Schedule 6.2, plus
additional expenses solely for change orders of up to 10% of the progress
payments on each satellite remaining to be paid as of the date hereof; (D)
purchase such terrestrial equipment as necessary to supply customers in the
ordinary course; or (E) other investments or capital expenditures that do not
exceed $500,000 in the aggregate for all such investments or expenditures that
occur from the date hereof.
(f) sell, lease, exchange, mortgage, pledge, transfer or
otherwise dispose of, or agree to sell, lease, exchange, mortgage, pledge,
transfer or otherwise encumber or dispose of, any of its material assets except
for dispositions in the ordinary course of business and consistent with past
practice which do not exceed five hundred thousand dollars ($500,000) in the
aggregate;
(g) propose or adopt any amendments to its certificate of
incorporation or its bylaws;
(h) (i) make any significant change in any of its methods of
accounting (other than in the ordinary course), or (ii) make or rescind any
express or deemed election relating to taxes, settle or compromise any claim,
action, suit, litigation, proceeding, arbitration, investigation, audit or
controversy relating to taxes (except where the amount of such settlements or
controversies, individually or in the aggregate, does not exceed five hundred
thousand dollars ($500,000), or change any of its methods of reporting income or
deductions for federal income tax purposes from those employed in the
preparation of the federal income tax returns for the
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taxable year ended December 31, 1996, except, in the case of clause (i) or
clause (ii), as may be required by law or generally accepted accounting
principles;
(i) incur any obligation for borrowed money, whether or not
evidenced by a note, bond, debenture or similar instrument, other than purchase
money indebtedness not to exceed five hundred thousand dollars ($500,000) in the
aggregate, except in the ordinary course of business under existing loan
agreements or capitalized leases, or prepay, before the scheduled maturity
thereof, any of its long-term debt;
(j) engage in any transaction with, or enter into any
agreement, arrangement, or understanding with, directly or indirectly, any of
such entity's affiliates (as defined in Rule 12(b)-2 under the Exchange Act)
which involves the transfer of consideration or has a financial impact on such
entity, other than pursuant to such agreements, arrangements, or understandings
(i) existing on the date of this Agreement or (ii) which are on terms that the
Board of Directors of the Company determines in good faith to be equal to, or
more favorable to the Company, than the terms that the Company would be able to
obtain from third parties in similar transactions and/or for similar goods or
services;
(k) surrender, agree to allow to expire or be terminated,
modify adversely, forfeit, or fail to use reasonable best efforts to renew or
extend under regular terms any of the Key Company Permits or violate or breach
any Key Company Permits in a manner that would give valid grounds to the FCC or
any Governmental Entity to institute any proceeding for the revocation,
suspension, or adverse modification of any Key Company Permit issued by the FCC
or any Governmental Entity except for Key Company Permits which lapse or expire
due to ordinary course changes in the business of the Company. Should the FCC or
other Governmental Entity with jurisdiction institute any proceedings for the
suspension, revocation or adverse modification of any of such Key Company
Permits, the Company shall use reasonable best efforts to promptly contest such
proceedings and to seek to have such proceedings terminated in a manner that is
favorable to the Company;
(l) fail to use reasonable best efforts to avoid having, any
pending Key Application to be dismissed or denied, except where (i) the loss of
such Key Company Permit or pending Key Application would not, individually or in
the aggregate, have a Company Material Adverse Effect or (ii) the maintenance of
any such Key Company Permit would require an expenditure which would be in
violation of subsection (e) above;
(m) enter into any contract, agreement, commitment,
arrangement, lease (including with respect to personal property), policy or
other instrument that (i) does not expire by the later of one (1) year after the
date hereof or six (6) months after the Closing Date or (ii) is not subject to
termination by the Company upon less than six months written notice to the other
party thereto, which in either case materially restricts or limits the Company's
or any Company Subsidiary's right to conduct its business or compete, including,
without limitation, any restriction on its ability to sell, lease or otherwise
provide services from available transponder capacity to any person or entity for
any purpose at any orbital location and in any frequency band, any geographical
market segment, product line or other industry limitation, or any exclusive or
sole supply or vendor arrangement or agreement. Nothing in this Section 6.2(m)
shall preclude
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or require the Company or any Company Subsidiary from entering into agreements
containing most favored nation provisions, options for additional services or
capacity, rights of negotiation, or similar provisions, in each case in the
ordinary course of business; or
(n) agree in writing or otherwise to do any of the foregoing.
ARTICLE VII.
ADDITIONAL AGREEMENTS
SECTION 7.1. Access and Information.
During the period from the date hereof to the Effective Time
(the "Interim Period"), the Company and Acquiror shall, and shall cause the
Company Subsidiaries and the Acquiror Subsidiaries, respectively, to, afford to
each other and their respective officers, employees, accountants, consultants,
legal counsel and other representatives reasonable access during normal business
hours (and at such other times as the parties may mutually agree) to the
properties, executive personnel and all information concerning the business,
properties, contracts, records and personnel of the Company and the Company
Subsidiaries or Acquiror and the Acquiror Subsidiaries, as the case may be, as
such other party may reasonably request.
SECTION 7.2. Confidentiality.
Acquiror and the Company each acknowledge and agree that all
information received by it (the "Receiving Party") from or on behalf of the
other party in connection with the transactions contemplated under this
Agreement shall be deemed received, if by Acquiror, pursuant to the
confidentiality agreement, dated as of June 5, 1997, between the Company and
Acquiror, and if by the Company, pursuant to the confidentiality agreement,
dated as of September 12, 1997, between the Company and Acquiror (each, a
"Confidentiality Agreement" and together, the "Confidentiality Agreements") and
such Receiving Party shall, and shall cause its officers, directors, employees,
affiliates, financial advisors and agents to, comply with the provisions of the
applicable Confidentiality Agreement with respect to such information, and the
provisions of the Confidentiality Agreements are hereby incorporated herein by
reference with the same effect as if fully set forth herein.
SECTION 7.3. Proxy Registration Statement; Board Recommendation and
Stockholder Vote.
(a) Proxy Registration Statement. As promptly as practicable
after the execution and delivery of this Agreement, Acquiror and the Company
shall cooperate and prepare and Acquiror shall file with the SEC a merger proxy
registration statement on Form S-4 (together with the amendments thereof or
supplements thereto, the "Proxy Registration Statement") in connection with the
registration under the Securities Act of the Acquiror Shares to be issued
pursuant to this Agreement and the approval by stockholders of the Company of
the Merger. As promptly as practicable after the execution and delivery of this
Agreement, the Company shall prepare for inclusion in the Proxy Registration
Statement the information relating
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to the merger and approval of the merger by stockholders of the Company and any
other information relating to the Company which would be included in a merger
proxy statement of the Company relating thereto under the rules and regulations
of the SEC. Such information furnished by the Company shall include the
recommendation of the Company's Board of Directors in favor of approval and
adoption of this Agreement and the Merger (subject to Section 7.10 hereof).
Acquiror and the Company will cooperate in the production and filing of the
Proxy Registration Statement, use all reasonable efforts to have or cause the
Proxy Registration Statement to become effective as promptly as practicable, and
take any action required to be taken under any applicable federal or state
securities laws in connection with the issuance of Acquiror Shares pursuant to
this Agreement and approval of this Agreement and the Merger by stockholders of
the Company. None of the information supplied by any party hereto for inclusion
in the Proxy Registration Statement will at the time the Proxy Registration
Statement is filed with the SEC and at the time it becomes effective under the
Securities Act, 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 statement therein, in light of the circumstances under which they are made,
not misleading.
(b) Board Recommendation; Stockholder Approval. The Company
shall, promptly after the date of this Agreement, take all action necessary in
accordance with Delaware Law and its certificate of incorporation and bylaws to
convene a meeting of the Company's stockholders (together with any adjournment
or postponement thereof, the "Stockholders' Meeting"), to approve and adopt this
Agreement and the Merger. As promptly as practicable after effectiveness of the
Proxy Registration Statement, the Company shall mail the proxy statement
included in the Proxy Registration Statement to its stockholders. The Company's
Board of Directors shall recommend approval of the transactions contemplated
hereby and shall take all lawful action to solicit from stockholders of the
Company proxies in favor of the approval and adoption of this Agreement and this
Merger (subject to Section 7.10 hereof). Notwithstanding the foregoing, the
Company shall not be obligated to mail such proxy statement (or, if the proxy
statement has been mailed, hold the Stockholders Meeting) until the earlier of
(i) the receipt of the Requisite Consents under Section 7.14 or (ii) the making
by Acquiror of the election under Section 7.14(b) as to whether to (A) waive as
a condition of Closing (Section 8.2(f)) that the Requisite Consents shall have
been obtained, or (B) except as otherwise provided in Section 7.15(g), commence
an Exchange Offer.
SECTION 7.4. FCC Application.
(a) As promptly as practicable after the execution and
delivery of this Agreement, Acquiror, Merger Sub and the Company shall prepare
all appropriate applications for FCC consent, and such other documents as may be
required, with respect to the transfer of control of the Company to Acquiror
(collectively, the "FCC Application"). As promptly as practicable thereafter,
Acquiror and Merger Sub shall deliver to the Company their respective completed
portions of the FCC Application. As promptly as practicable, but not later than
twenty-one (21) calendar days after the date hereof, the Company and Acquiror
shall jointly file, or cause to be filed, the FCC Application. Acquiror, Merger
Sub and the Company shall use their reasonable best efforts to prosecute the FCC
Application in good faith and with due diligence in order to obtain such FCC
consent as expeditiously as practicable. If the Closing
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shall not have occurred for any reason within the initial effective period of
the granting of approval by the FCC of the FCC Application, and neither Acquiror
nor the Company shall have terminated this Agreement pursuant to Section 9.1,
Acquiror and the Company shall jointly request one or more extensions of the
effective period of such grant. No party hereto shall knowingly take, or fail to
take, any action the intent or reasonably anticipated consequence of which
action or failure to act would be to cause the FCC not to grant approval of the
FCC Application.
(b) Acquiror and the Company shall each pay one-half (1/2) of
any FCC fees that may be payable in connection with the filing or granting of
approval of the FCC Application. The Company shall pay any cost incurred in
connection with complying with the FCC notice and advertisement requirements in
connection with the transfer of control of the Company.
SECTION 7.5. HSR Act Matters.
Acquiror, Merger Sub and the Company (as may be required
pursuant to the HSR Act) promptly will complete all documents required to be
filed with the Federal Trade Commission and the United States Department of
Justice in order to comply with the HSR Act and, not later than fifteen (15)
calendar days after the date hereof, together with the persons, if any, who are
required to join in such filings, shall file such documents with the appropriate
Governmental Entities. Acquiror, Merger Sub and the Company shall promptly
furnish all materials thereafter required by any of the Governmental Entities
having jurisdiction over such filings, and shall take all reasonable actions and
shall file and use their best efforts to have declared effective or approved all
documents and notifications with any such Governmental Entity, as may be
required under the HSR Act or other federal or state antitrust laws for the
consummation of the Merger and the other transactions contemplated hereby.
Acquiror and the Company shall each pay one-half (1/2) of all filing fees
related to compliance with the HSR Act in connection with the transactions
contemplated hereby.
SECTION 7.6. Public Announcements.
Acquiror and the Company shall consult with each other before
issuing any press release or otherwise making any public statements with respect
to the transactions contemplated hereunder and shall not issue any such press
release or make any such public statement prior to such consultation, except as
may be required by law or any listing agreement with the NYSE, or the Nasdaq
National Market.
SECTION 7.7. Indemnification; Directors' and Officers' Insurance.
(a) The certificate of incorporation and bylaws of the
Surviving Corporation shall contain the provisions with respect to
indemnification set forth in the certificate of incorporation and bylaws of the
Company on the date of this Agreement, which provisions shall not be amended,
repealed or otherwise modified for a period of six (6) years after the Effective
Time in any manner that would adversely affect the rights thereunder of persons
who at any time prior to the Effective Time were identified as prospective
indemnitees under the certificate of incorporation or bylaws of the Company in
respect of actions or omissions occurring at or prior
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to the Effective Time (including, without limitation, the transactions
contemplated by this Agreement), unless such modification is required by
applicable law.
(b) From and after the Effective Time, Acquiror shall cause
the Surviving Corporation to indemnify, defend and hold harmless the present and
former officers, directors and employees of the Company and the Company
Subsidiaries (collectively, the "Indemnified Parties") against all losses,
expenses, claims, damages, liabilities or amounts that are paid in settlement
of, with the approval of Acquiror (which approval shall not be unreasonably
withheld), or otherwise in connection with, any claim, action, suit, proceeding
or investigation (a "Claim"), based in whole or in part on the fact that such
person is or was such a director, officer or employee and arising out of actions
or omissions occurring at or prior to the Effective Time (including, without
limitation, the transactions contemplated by this Agreement), in each case to
the fullest extent permitted under Delaware Law (and shall pay expenses in
advance of the final disposition of any such action or proceeding to each
Indemnified Party to the fullest extent permitted under Delaware Law, upon
receipt from the Indemnified Party to whom expenses are advanced of the
undertaking to repay such advances contemplated by Section 145(e) of Delaware
Law).
(c) Without limiting the foregoing, in the event any Claim is
brought against any Indemnified Party (whether arising before or after the
Effective Time) after the Effective Time: (i) the Indemnified Parties may retain
its regularly engaged independent legal counsel as of the date of this
Agreement, or other independent legal counsel satisfactory to them provided that
such other counsel shall be reasonably acceptable to Acquiror, (ii) Acquiror
shall cause the Surviving Corporation to pay all reasonable fees and expenses of
such counsel for the Indemnified Parties promptly as statements therefor are
received, and (iii) Acquiror shall cause the Surviving Corporation to use its
reasonable efforts to assist in the vigorous defense of any such matter,
provided that neither the Acquiror nor the Surviving Corporation shall be liable
for any settlement of any Claim effected without the written consent of
Acquiror, which consent shall not be unreasonably withheld. Any Indemnified
Party wishing to claim indemnification under this Section 7.7, promptly upon
learning of any such Claim, shall notify the Acquiror and Surviving Corporation
(although the failure so to notify the Acquiror and Surviving Corporation shall
not relieve the Acquiror and Surviving Corporation from any liability which the
Acquiror and Surviving Corporation may have under this Section 7.7, except to
the extent such failure prejudices the Acquiror and Surviving Corporation), and
shall deliver to the Acquiror and Surviving Corporation the undertaking
contemplated by Section 145(e) of Delaware Law. The Indemnified Parties as a
group may retain one law firm (in addition to local counsel) to represent them
with respect to each such matter unless there is, under applicable standards of
professional conduct (as reasonably determined by counsel to such Indemnified
Parties) a conflict on any significant issue between the position of any two or
more of such Indemnified Parties, in which event, an additional counsel as may
be required may be retained by such Indemnified Parties.
(d) Acquiror shall cause to be maintained in effect for not
less than six (6) years after the Effective Time the current policies of
directors' and officers' liability insurance and fiduciary liability insurance
maintained by the Company with respect to matters occurring prior to the
Effective Time; provided, however, that (i) Acquiror may substitute therefor
policies of substantially the same coverage containing terms and conditions that
are substantially the
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same for the Indemnified Parties to the extent reasonably available and (ii)
Acquiror shall not be required to pay an annual premium for such insurance in
excess of two hundred percent (200%) of the last annual premium paid prior to
the date of this Agreement, but in such case shall purchase as much coverage as
possible for such amount.
(e) This Section 7.7 is intended to be for the benefit of, and
shall be enforceable by, the Indemnified Parties referred to herein, their heirs
and personal representatives and shall be binding on Acquiror and Merger Sub and
the Surviving Corporation and their respective successors and assigns. Acquiror
hereby guarantees the Surviving Corporation's obligations pursuant to this
Section 7.7.
SECTION 7.8. Employee Benefits Matters.
(a) Acquiror shall cause the Surviving Corporation to provide
employee benefits under plans, programs and arrangements, which, in the
aggregate, will provide benefits to the employees of the Company and the Company
Subsidiaries which are no less favorable, in the aggregate, than those provided
pursuant to the plans, programs and arrangements of the Company in effect and
disclosed to Acquiror on the date hereof; provided, however, that nothing herein
shall interfere with the Surviving Corporation's right or obligation to make
such changes to such plans, programs or arrangements as are necessary to conform
with applicable law.
(b) Acquiror acknowledges and agrees that prior to the
Effective Time, the Company will take all such actions as may be necessary to
cause (i) all participants to become fully vested in their benefits under the
Company's 401(k) Plan, and (ii) employer contributions to be made with respect
to periods prior to the Effective Time to the Company's 401(k) Plan to the
extent that such contributions would be made if the participants were employed
by the Company on the last day of the calendar year in which the Closing occurs.
SECTION 7.9. Further Action; Commercially Reasonable Efforts.
(a) Each of the parties shall use all commercially reasonable
efforts to take, or cause to be taken, all appropriate action, and do, or cause
to be done, all things necessary, proper or advisable under applicable laws or
otherwise to consummate and make effective the transactions contemplated by this
Agreement as promptly as practicable, including, without limitation, using all
its commercially reasonable efforts to obtain all licenses, permits, consents,
approvals, authorizations, qualifications and orders of Governmental Entities
and parties to contracts with the Company and Acquiror as are necessary for the
transactions contemplated herein. In case at any time after the Effective Time
any further action is necessary or desirable to carry out the purposes of this
Agreement, the proper officers and directors of each party to this Agreement
shall use all commercially reasonable efforts to take all such action.
(b) During the Interim Period, each of the parties shall
promptly notify the other in writing of any pending or, to the knowledge of such
party, threatened action, proceeding or investigation by any Governmental Entity
or any other person (i) challenging or seeking damages in connection with the
Merger or the conversion of the Capital Stock into the Merger Consideration
pursuant to the Merger or (ii) seeking to restrain or prohibit the consummation
of
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the Merger or otherwise limit the right of Acquiror to own or operate all or any
portion of the business or assets of the Company.
(c) Each party shall use its commercially reasonable efforts
to refrain from taking any action, or entering into any transaction, which would
cause any of its representations or warranties contained in this Agreement to be
untrue or result in a breach of any covenant made by it in this Agreement.
SECTION 7.10. Negotiation With Others.
(a) Neither the Company nor any Company Subsidiary shall,
through any officer, director, employee, representative, agent or direct or
indirect stockholder of the Company or any Company Subsidiary, directly or
indirectly, take any action to (i) encourage, initiate or solicit the submission
of any proposal that constitutes an Acquisition Proposal, (ii) enter into any
agreement with respect to or accept any Acquisition Proposal; or (iii)
encourage, initiate or solicit the making of any proposal that constitutes or
may reasonably be expected to lead to, an Acquisition Proposal; provided,
however, that nothing contained in this Section 7.10 shall prohibit the Company,
or its Board of Directors, from making any disclosure to its stockholders that,
in the judgment of its Board of Directors in accordance with, and based upon,
the advice of independent legal counsel, is required under applicable law.
For purposes of this Agreement, "Acquisition Proposal" means
any of the following: (i) any merger, consolidation or similar transaction
involving the Company, (ii) any sale, lease or other disposition directly or
indirectly by merger, consolidation, share exchange or otherwise of assets of
the Company or Company Subsidiaries representing 20% or more of the consolidated
assets of the Company and the Company Subsidiaries, (iii) any issue, sale, or
other disposition of securities (or options, rights or warrants to purchase, or
securities convertible into or exchangeable for, such securities) representing
20% or more of the voting power of the Company, or (iv) any transaction in which
any person shall acquire beneficial ownership (as such term is defined in Rule
13d-3 under the Exchange Act), or the right to acquire beneficial ownership or
any "group" (as such term is defined under the Exchange Act) shall have been
formed which beneficially owns or has the right to acquire beneficial ownership
of 35% or more of the outstanding Common Stock.
(b) Notwithstanding Section 7.10(a), the Board of Directors of
the Company, in the exercise of and as required by its fiduciary duties as
determined in good faith by the Board of Directors of the Company in accordance
with and based upon the advice of independent legal counsel, may (i) furnish
information to, or enter into discussions with, a third party who makes (or
requests information for the purpose of making) an unsolicited bona fide
Acquisition Proposal, if such third party executes and delivers a
confidentiality agreement in reasonably customary form on terms not more
favorable to such person or entity than the terms of the Confidentiality
Agreement, or (ii) withdraw or modify in any manner adverse to the Acquiror or
propose publicly to withdraw or modify in any manner adverse to the Acquiror the
approval or recommendation by such Board of Directors or such committee of the
Merger or this Agreement, if and only to the extent that the Board of Directors:
(A) believes in good faith, based on the advice of its financial advisor that
such Acquisition Proposal would, if consummated, result in a
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transaction more favorable from a financial point of view to all stockholders of
the Company, and (B) determines in good faith, based upon, to the extent legal
matters are relevant to such fiduciary duties, a reasoned written opinion of its
outside legal counsel, that such action is necessary for the directors to comply
with their fiduciary duties to the stockholders under applicable Delaware Law;
and (C) in the event that the Board of Directors of the Company determines to
withdraw or modify in a manner adverse to the Acquiror its approval or
recommendation of the Merger or this Agreement, it shall do so only at a time
that is after the second business day following Acquiror's receipt of the
written notice in accordance with the next succeeding sentence. The Company
shall promptly notify Acquiror in writing of any such request for information or
Acquisition Proposal, specifying reasonable details of any inquiry or
Acquisition Proposal (including the identity of the entity making the
Acquisition Proposal, to the extent not prohibited by a confidentiality
agreement in effect on the date hereof), and shall keep Acquiror informed as to
the status of any discussions or negotiations.
SECTION 7.11. Stock Merger Listing.
Acquiror shall use all reasonable efforts to cause the
Acquiror Shares to be issued pursuant to this Agreement to be approved for
listing on the NYSE, subject to official notice of issuance, prior to the
Closing Date.
SECTION 7.12. Blue Sky.
Acquiror shall use reasonable efforts to obtain prior to the
Closing Date any necessary blue sky permits and approvals required to permit the
distribution of the shares of Acquiror Shares to be issued in accordance with
the provisions of this Agreement.
SECTION 7.13. Affiliate Agreements.
At least 30 days prior to the Effective Time, the Company
shall deliver to Acquiror a letter identifying all persons who may be deemed
affiliates of the Company under Rule 145 of the Securities Act. The Company
shall use all reasonable efforts to deliver or cause to be delivered to
Acquiror, from each person who will be identified in such letter, written
agreements (collectively, the "Affiliate Agreements") substantially in the form
attached to this Agreement as Exhibit A.
SECTION 7.14. Consent Solicitation and Supplemental Indenture.
(a) As promptly as practicable after the execution and
delivery of this Agreement, the Company shall prepare, in consultation with
Acquiror, written materials to commence a solicitation (the "Consent
Solicitation") of consents to amendments to, or waivers under, the Indentures,
dated as of January 31, 1997, for the Senior Notes (as defined below) among the
Company, the subsidiaries of the Company named therein as Guarantors, and
Bankers Trust Company, as Trustee (the "Indentures"), from the Holders (as
defined in the Indentures) of not less than a majority in aggregate principal
amount of the Senior Notes in order to obtain a waiver of the Company's
compliance with the covenants set forth in Section 5.01 (iii) and Section
5.01(iv) of the Indentures in connection with the consummation of the Merger
(the
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consents from such Holders, the "Requisite Consents"). The Company will
distribute such solicitation materials to the Holders as promptly as practicable
and will use commercially reasonable efforts to obtain such consents, provided
that no consideration shall be offered to the Holders of the Senior Notes
pursuant to the Consent Solicitation for rendering their consents thereunder
without the prior written approval of Acquiror. At the Effective Time, Acquiror
shall cause the Surviving Corporation to execute and deliver to the Trustee a
supplemental indenture pursuant to, and satisfying the requirements of, the
Indentures. "Senior Notes" shall mean the Company's 11.25% Senior Notes Due 2007
and 12.5% Senior Discount Notes Due 2007.
(b) If, within forty (40) days after the date the Company
distributes the Consent Solicitation to the Holders (the "Solicitation
Termination Date"), the Company has not received the Requisite Consents,
Acquiror shall elect (the "Acquiror Election") either to (i) commence an
exchange offer as set forth in Section 7.15, or (ii) waive as a condition of
Closing (Section 8.2(f)) that the Requisite Consents shall have been obtained.
Acquiror shall exercise the Acquiror Election by delivering written notice of
Acquiror's election to the Company within two business days after the
Solicitation Termination Date. If Acquiror fails to timely and properly exercise
the Acquiror Election within such two business days, Acquiror shall be deemed to
have waived the delivery of the Requisite Consents as a closing condition. The
Company agrees to provide the Acquiror with written notice of the date of the
Solicitation Termination Date at least five business days prior to the
occurrence of such Solicitation Termination Date.
SECTION 7.15. The Exchange Offer.
(a) Terms of the Exchange Offer. As promptly as practicable
(and in any event within five business days) after Acquiror's delivery of an
Acquiror Election pursuant to Section 7.14(b) hereof electing to commence an
exchange offer, Acquiror shall announce its election to commence (within the
meaning of Rule 14d-2 under the Exchange Act) an irrevocable exchange offer (the
"Exchange Offer") to acquire all of the issued and outstanding shares of Capital
Stock in exchange for the number of fully paid and nonassessable Acquiror Shares
(the "Exchange Consideration") equal to the number that would be issued pursuant
to the Merger (except that the Averaging Period would end on the tenth Trading
Day immediately prior to the closing date for the Exchange Offer), and with such
other terms and conditions which make the Exchange Offer at least as favorable
to the holders of the issued and outstanding shares of Capital Stock (and
options, warrants and other rights to purchase Capital Stock) as the terms and
conditions of the Merger, as set forth herein. Acquiror shall conduct such
Exchange Offer in accordance with this Section 7.15 and applicable law. To the
extent practicable in the context of the Exchange Offer the parties hereto shall
seek to provide to each other all of the benefits of the provisions of this
Agreement. Acquiror hereby agrees that within two business days following the
later to occur of the expiration of the minimum statutory period during which
exchange offers must remain open and all Exchange Offer Conditions (as defined
below) having been satisfied or waived, Acquiror shall accept for exchange all
shares of Capital Stock tendered and promptly issue the Exchange Consideration
to the holders of Capital Stock who shall have tendered their shares in the
Exchange Offer.
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The obligation of Acquiror to consummate the Exchange Offer
once it is commenced and to accept for exchange the shares of Capital Stock
tendered pursuant to the Exchange Offer shall be subject only to the following
conditions (the "Exchange Offer Conditions"): (i) the holders of the outstanding
Capital Stock representing at least 50.1% of the voting power of the Capital
Stock (on a fully diluted basis) as of the date the Exchange Offer is commenced
(and all shares of Capital Stock held by Acquiror, each Acquiror Subsidiary and
each affiliate thereof shall be deemed to be included within such 50.1%)
accepting the Exchange Offer, (ii) the resignations of the Company's directors
prior to consummation of the Exchange Offer and (iii) the satisfaction of the
following conditions precedent sections of this Agreement (to the extent
applicable to an exchange offer): 8.1(b), 8.1(c), 8.1(d), 8.1(e), 8.2(a),
8.2(b), 8.2(c), 8.2(d), 8.2(e). Acquiror expressly reserves the right to waive
any such condition, to increase the consideration payable in the Exchange Offer
and to make any other changes in the terms and conditions of the Exchange Offer
which make the Exchange Offer more favorable to the holders of the issued and
outstanding shares of Capital Stock than the Merger and than the requirements
for the Exchange Offer set forth herein. Notwithstanding the foregoing, no
change may be made which (i) causes the Exchange Offer not to meet the
requirements of this Section 7.15, (ii) decreases or changes the Exchange
Consideration to be paid in the Exchange Offer, (iii) reduces the number of
shares of Capital Stock sought to be purchased in the Exchange Offer, (iv)
imposes conditions to the Exchange Offer other than those permitted by this
Section 7.15, (v) extends the expiration date of the Exchange Offer or (vi)
otherwise alters or amends any term of the Exchange Offer in any manner
materially adverse to the holders of shares of Capital Stock; provided, however,
that subject to the right of the parties to terminate this Agreement pursuant to
Section 9.1, the Exchange Offer may be extended for any period to the extent
required to satisfy any Exchange Offer Condition or to the extent required by
law or by any rule, regulation, interpretation or position of the SEC or the
staff thereof, so long as the Exchange Offer shall not extend beyond June 30,
1998. Acquiror shall not acquire less than all of the shares of Capital Stock or
other securities that are tendered pursuant to the Exchange Offer.
(b) Exchange Offer Documents. As promptly as practicable after
the election by the Acquiror to commence of the Exchange Offer, Acquiror shall
convert the Proxy Registration Statement into and shall file with the SEC a
registration statement (together with the amendments thereof or supplements
thereto, the "Exchange Registration Statement") in connection with the
registration under the Securities Act of the Acquiror Shares to be issued
pursuant to the Exchange Offer. Acquiror shall use all reasonable efforts to
have or cause the Exchange Registration Statement to become effective as
promptly as practicable. As promptly as practicable (and in any event within
five business days) after the Exchange Registration Statement has become
effective, Acquiror shall commence the Exchange Offer. As promptly as
practicable on the date of commencement of the Exchange Offer, Acquiror shall
file with the SEC a Tender Exchange Offer Statement on Schedule 14D-1
promulgated under the Exchange Act (together with all amendments and supplements
thereto, the "Schedule 14D-1") with respect to the Exchange Offer, and take such
steps as are reasonably necessary to cause the Exchange Offer to be disseminated
to the holders of shares of Capital Stock as and to the extent required by
applicable federal securities laws. The Schedule 14D-1 shall contain an offer to
exchange (the "Offer to Exchange") and forms of the related letter of
transmittal and any related summary advertisement (the Schedule 14D-1, the
Exchange Registration Statement, the Offer to Exchange
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and such other documents as may be required by the Exchange Act, the NYSE, the
NASD or any other applicable laws, rules or regulations, together with all
amendments and supplements thereto, the "Exchange Offer Documents"). Acquiror
shall use its best efforts to distribute such Exchange Offer Documents, and any
other documents required by law or this Agreement to all holders of shares of
Capital Stock, in accordance with the requirements of this Section 7.15.
Acquiror and the Company shall correct promptly any information provided by any
of them for use in the Exchange Offer Documents if such information shall
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
contained therein, in light of the circumstances under which they were made, not
misleading, and Acquiror shall use all reasonable efforts to cause the Schedule
14D-1 as so corrected to be filed with the SEC and the other Exchange Offer
Documents as so corrected to be disseminated to holders of shares of Capital
Stock, in each case as and to the extent required by applicable federal
securities laws and this Section 7.15. The Company and its counsel shall be
given a reasonable opportunity to review and comment on the Exchange Offer
Documents prior to their being filed with the SEC, and Acquiror will provide the
Company and its counsel with copies of any written comments that Acquiror
receives from the SEC or its staff with respect to the Exchange Offer Documents
promptly after receipt of any such comments.
(c) Stock Options. The Exchange Offer will extend to all
shares of Capital Stock which may be issued as a result of the exercise of
outstanding options, warrants and other rights to purchase or acquire Capital
Stock, and will involve assumption of other options, warrants and rights, to the
same extent as required with respect to the Merger under Section 2.3.
(d) Company Recommendation. On the date the Schedule 14D-1 is
filed with the SEC, the Company shall file with the SEC a
Solicitation/Recommendation Statement on Schedule 14D-9 promulgated under the
Exchange Act (together with all amendments and supplements thereto, the
"Schedule 14D-9") containing the recommendation of the Board of Directors of the
Company for the stockholders of the Company to accept the Exchange Offer, except
to the extent the Board of Directors would be permitted to alter its
recommendation under Section 7.10(b) with respect to the Merger, and shall take
such steps as are necessary to cause the Schedule 14D-9 to be disseminated to
the holders of shares of Capital Stock as and to the extent required by the NASD
or any other applicable laws, rules and regulations, including, without
limitation, applicable federal securities laws. The Company and Acquiror shall
amend or correct promptly any information provided by any of them for use in the
Schedule 14D-9 which shall have become false or misleading, and the Company
shall take all steps necessary to cause the Schedule 14D-9 as so amended or
corrected to be filed with the SEC and disseminated to holders of shares of
Capital Stock, in each case as and to the extent required by applicable federal
securities laws. Acquiror and its counsel shall be given a reasonable
opportunity to review and comment on the Schedule 14D-9 prior to its being filed
with the SEC, and the Company will provide Acquiror and its counsel with copies
of any written comments that the Company receives from the SEC or its staff with
respect to the Schedule 14D-9 promptly after receipt of any such comments.
(e) Stockholder List. In connection with the Exchange Offer,
the Company shall cause the Company's transfer agent to furnish Acquiror
promptly with mailing labels containing the names and addresses of all record
holders of shares of Capital Stock and with
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security position listings of shares of Capital Stock held in stock
depositories, each as of a recent date, together with all other available
listings and computer files containing names, addresses and security position
listings of record holders and beneficial owners of shares of Capital Stock. The
Company shall furnish Acquiror with such additional information, including,
without limitation, updated listings and files of stockholders, mailing labels
and security position listings and such other assistance as Acquiror or its
agents may reasonably request in communicating the Exchange Offer to record and
beneficial holders of shares of Capital Stock. Subject to the requirements of
the Securities Act, the Exchange Act, the NYSE, the NASD and any other
applicable laws, rules or regulations, and except for such steps as are
necessary to disseminate the Exchange Offer Documents and any other documents
necessary to consummate the transactions contemplated by this Agreement,
Acquiror shall hold in confidence the information contained in such labels,
listings and files, shall use such information only in connection with the
transactions contemplated by this Agreement, and, if this Agreement shall be
terminated in accordance with Section 11, shall deliver to the Company all
copies of, and any extracts or summaries from, such information then in their
possession or control.
(f) Cooperation. In connection with the Exchange Offer, the
Company will furnish Acquiror with such information (which will be treated and
held in confidence by Acquiror except to the extent required to be disclosed
pursuant to the Exchange Offer or this Agreement) and assistance as Acquiror or
its representatives may reasonably request in connection with the preparation of
the Exchange Offer and communicating the Exchange Offer to the record and
beneficial holders of shares of Capital Stock.
(g) Subsequent Merger. In the event that the Requisite
Consents are obtained following commencement of the Exchange Offer, Acquiror
will continue with the Exchange Offer pursuant to this Section and promptly
following consummation of the Exchange Offer Acquiror will cause the Merger to
occur, with the Exchange Ratio equal to the exchange ratio applicable to the
Exchange Offer. Acquiror will make all requisite filings in connection with the
Merger, including the preparation and distribution of a registration statement
and any required information statement. If the Requisite Consents are obtained
after the Solicitation Termination Date but prior to the time the Exchange Offer
is commenced, Acquiror shall either proceed as set forth in this paragraph or
abandon the Exchange Offer and (by written notice to the Company) restore the
obligations of the parties with respect to the Merger, fully as though the
Requisite Consents had been obtained prior to commencement of the Exchange
Offer.
SECTION 7.16. Control of Acquiror and the Company.
During the Interim Period, control of the operations of the
Company and the Company's Subsidiaries shall remain with the Company and control
of Acquiror and Acquiror Subsidiaries shall remain with Acquiror. Acquiror
agrees that neither it nor any of Acquiror's Subsidiaries shall control, direct,
supervise, or attempt to control, direct or supervise, the operations of the
Company during this period. Likewise, the parties agree that neither the Company
nor any of the Company's Subsidiaries shall control, direct, supervise, or
attempt to control, direct or supervise Acquiror during the Interim Period.
Notwithstanding anything in this Agreement to the contrary, no action shall be
taken hereunder constituting an assignment or
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transfer of control of an FCC license, permit, authorization or application
requiring the prior consent or approval of the FCC without first obtaining such
consent or approval.
SECTION 7.17. Private Letter Ruling.
As promptly as practicable, Acquiror and the Company shall
jointly seek (including through the filing of an appropriate request) a private
letter ruling from the Internal Revenue Service under Section 367(a) of the Code
that the Merger will be respected for purposes of Section 367(a) as a tax-free
reorganization under Section 368(a) of the Code (the "Private Letter Ruling").
Acquiror agrees to use commercially reasonable efforts to satisfy any
requirements identified by the Internal Revenue Service as a condition to
receipt of such Private Letter Ruling. Following receipt (or internal assurances
of receipt by the staff of the Internal Revenue Service, as notified to Acquiror
in writing by one or more of the representatives of Acquiror or the Company
assisting in the seeking of the Private Letter Ruling) of such Private Letter
Ruling, Acquiror shall not, and shall not permit Merger Sub or any Acquiror
Subsidiaries to, intentionally take, fail to take, or cause to be taken or not
taken any action within its control that (without regard to any action taken or
agreed to be taken by the Company or any of its affiliates) would disqualify the
Merger as a "reorganization" within the meaning of Section 368(a) of the Code.
Nothing contained in this Section 7.17 shall be construed to require Acquiror to
incur substantial tax detriments or substantial direct expenses.
ARTICLE VIII.
CLOSING CONDITIONS
SECTION 8.1. Conditions to Obligations of Acquiror, Merger Sub and
the Company to Effect the Merger.
The respective obligations of Acquiror, Merger Sub and the
Company to effect the Merger and the other transactions contemplated herein
shall be subject to the satisfaction at or prior to the Effective Time of the
following conditions, any or all of which may be waived, in whole or in part, to
the extent permitted by applicable law:
(a) Stockholder Approval. This Agreement and the Merger shall
have been approved and adopted by the requisite vote of the stockholders of the
Company in accordance with applicable law.
(b) Effectiveness of Registration Statement. The Proxy
Registration Statement (or the Exchange Registration Statement as applicable)
shall have been declared effective by the SEC under the Securities Act. No stop
order suspending the effectiveness of such registration statement shall have
been issued by the SEC and no proceedings for that purpose shall have been
initiated or, to the knowledge of Acquiror, the Company or the Stockholders,
threatened by the SEC.
(c) No Order. No Governmental Entity or federal or state court
of competent jurisdiction shall have enacted, issued, promulgated, enforced or
entered any statute, rule,
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regulation, executive order, decree, judgment, injunction or other order
(whether temporary, preliminary or permanent), in any case which is in effect
and which prevents or prohibits consummation of the Merger or any other
transactions contemplated in this Agreement; provided, however, that the parties
shall use their reasonable best efforts to cause any such decree, judgment,
injunction or other order to be vacated or lifted.
(d) Stock Merger Listing. The Acquiror Shares issuable
pursuant to this Agreement shall have been included for listing on the NYSE upon
official notice of issuance.
(e) HSR Act. Any waiting period with any extensions thereof
under the HSR Act shall have expired or been terminated.
SECTION 8.2. Additional Conditions to Obligations of Acquiror and
Merger Sub.
The obligations of Acquiror and Merger Sub to effect the
Merger and the other transactions contemplated in this Agreement (except the
Principal Stockholder Agreement) are also subject to the following conditions,
any or all of which may be waived by Acquiror, in whole or in part, to the
extent permitted by applicable law:
(a) Representations and Warranties. The representations and
warranties of the Company made in this Agreement shall be true and correct when
made and on and as of the Effective Time with the same effect as though such
representations and warranties had been made on and as of the Effective Time
(except for representations and warranties that speak as of a specific date or
time, which need only be true and correct as of such date or time), except where
the failure of such representations and warranties to be so true and correct
(without giving effect to any limitation as to "materiality" or "Company
Material Adverse Effect" set forth therein) does not have a Company Material
Adverse Effect. Acquiror shall have received a certificate of the Chief
Executive Officer or Chief Financial Officer of the Company to that effect.
(b) Agreements and Covenants. The agreements and covenants of
the Company required to be performed on or before the Effective Time shall have
been performed in all material respects. Acquiror shall have received a
certificate of the Chief Executive Officer or Chief Financial Officer of the
Company to that effect.
(c) FCC Approval. The FCC shall have granted by Final Order
the FCC Application, without conditions, qualifications or other restrictions
that are likely to have an Acquiror Material Adverse Effect or a Company
Material Adverse Effect immediately after the Closing Date. As used in this
Agreement, the term "Final Order" means an order, action or decision of a
Governmental Entity that has not been reversed, stayed or enjoined and as to
which the time to appeal, petition for certiorari or seek reargument or
rehearing or administrative reconsideration or review has expired and as to
which no appeal, reargument, petition for certiorari or rehearing or petition
for reconsideration or application for review is pending or as to which any
right to appeal, reargue, petition for certiorari or rehearing or
reconsideration or review has been waived in writing by each party having such a
right or, if any appeal, reargument, petition for certiorari or rehearing or
reconsideration or review thereof has been
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sought, the order or judgment of the court or agency has been affirmed by the
highest court (or the administrative entity or body) to which the order was
appealed or from which the argument or rehearing or reconsideration or review
was sought, or certiorari has been denied, and the time to take any further
appeal or to seek certiorari or further reargument or rehearing, or
reconsideration or review, has expired.
(d) Other Satellite Approvals. Each Governmental Entity other
than the FCC that has issued to the Company or any of the Company Subsidiaries
(i) any Company Permit with respect to the operation of or transmission to or
from a Company Satellite or a Company Ground Station that communicates with a
Company Satellite, or (ii) any Company Permit with respect to the provision of
broadcasting or communications services shall have, where required by applicable
law, approved the transfer of control or assignment, as applicable, of all such
Company Permits as a result of the Merger without any material qualifications,
restrictions or limitations and such approval shall have become a Final Order,
except where the failure to obtain such approvals would not, individually or in
the aggregate, have a Company Material Adverse Effect.
(e) Other Approvals. All consents, waivers, approvals and
authorizations required to be obtained, and all filings or notices required to
be made, by the Company and the stockholders prior to consummation of the
transactions contemplated in this Agreement shall have been obtained from and
made with all required Governmental Entities, other than those that the failure
to be filed, expired or obtained would not have a Company Material Adverse
Effect.
(f) Requisite Consents. Subject to waiver pursuant to Section
7.14(b), the Requisite Consents shall have been obtained.
SECTION 8.3. Additional Conditions to Obligations of the Company.
The obligations of the Company to effect the Merger and the
other transactions contemplated in this Agreement (except the Principal
Stockholder Agreement) are also subject to the following conditions any or all
of which may be waived by the Company, in whole or in part, to the extent
permitted by applicable law:
(a) Representations and Warranties. The representations and
warranties of Acquiror and Merger Sub made in this Agreement shall be true and
correct when made and on and as of the Effective Time with the same effect as
though such representations and warranties had been made on and as of the
Effective Time (except for representations and warranties that speak as of a
specific date or time, which need only be true and correct as of such date or
time), except where the failure of such representations and warranties to be so
true and correct (without giving effect to any limitation as to "materiality" or
"Acquiror Material Adverse Effect" set forth therein) does not have an Acquiror
Material Adverse Effect. The Company shall have received a certificate of the
Chief Executive Officer or Chief Financial Officer of Acquiror to that effect.
(b) Agreements and Covenants. The agreements and covenants of
Acquiror and Merger Sub required to be performed on or before the Effective Time
shall have been
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performed in all material respects. The Company shall have received a
certificate of the Chief Executive Officer or Chief Financial Officer of
Acquiror to that effect.
(c) FCC Approval. The FCC shall have granted by Final Order
the FCC Application, without conditions, qualifications or other restrictions
that are likely to have an Acquiror Material Adverse Effect or a Company
Material Adverse Effect immediately after the Closing Date.
(d) Other Approvals. All consents, waivers, approvals and
authorizations required to be obtained, and all filings or notices required to
be made, by Acquiror prior to consummation of the transactions contemplated in
this Agreement shall have been obtained from and made with all required
Governmental Entities, other than those that the failure to be filed, expired or
obtained would not have an Acquiror Material Adverse Effect.
ARTICLE IX.
TERMINATION, AMENDMENT AND WAIVER
SECTION 9.1. Termination.
This Agreement may be terminated at any time prior to the
Effective Time, whether before or after approval of this Agreement and the
Merger by the stockholders of the Company:
(a) by mutual written consent of each of Acquiror and the
Company;
(b) by either the Company or Acquiror if the other shall have
breached, or failed to comply with, any of its obligations under this Agreement
or any representation or warranty made by such other party shall have been
incorrect when made or shall have since ceased to be true and correct in any
material respect, and such breach, failure or misrepresentation is not cured
within thirty (30) days after notice thereof and such breach, failure or
misrepresentation, results or would reasonably be expected to result in a
Company Material Adverse Effect or an Acquiror Material Adverse Effect;
(c) by either Acquiror or the Company if any decree, permanent
injunction, judgment, order or other action by any court of competent
jurisdiction or any Governmental Entity preventing or prohibiting consummation
of the Merger shall have become final and nonappealable;
(d) by either Acquiror or the Company if the Agreement shall
fail to receive the requisite vote for approval and adoption by the stockholders
of the Company at the Stockholders' Meeting;
(e) by either the Company or Acquiror if the merger shall not
have been consummated before June 30, 1998 (the "Termination Date"); provided,
however, that the right to terminate this Agreement under this Section 9.1(e)
shall not be available to any party whose
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<PAGE>
failure to fulfill any obligation under this Agreement has been the cause of, or
resulted in, the failure of the Effective Time to occur on or before the
Termination Date.
(f) by Acquiror if the Board of Directors of the Company or
any committee thereof shall have withdrawn or modified its approval or
recommendation of the Merger or this Agreement in any manner adverse to
Acquiror, or approved or recommended any Acquisition Proposal (other than the
Merger), or shall have resolved to take any of the foregoing actions (provided
that a termination pursuant to this provision will be subject to Section 9.3
hereof); and
(g) by the Company if the Board of Directors of the Company or
any committee thereof shall have withdrawn or modified its approval or
recommendation of the Merger or this Agreement in any manner adverse to
Acquiror, or approved or recommended any Acquisition Proposal (other than the
Merger); provided, however, that the Company has complied with all provisions of
Section 7.10(b), including the notice provisions therein, and the requirements
of Section 9.3 hereof (provided that the termination described in this clause
(g) shall not be effective unless and until the Company shall have paid to
Acquiror the fee described in Section 9.3 hereof).
SECTION 9.2. Effect of Termination.
Except as provided in Section 9.3 or Section 10.1, in the
event of the termination of this Agreement pursuant to Section 9.1, this
Agreement shall forthwith become void, there shall be no liability on the part
of Acquiror, Merger Sub or the Company or any of their respective officers or
directors to the other parties hereto and all rights and obligations of any
party hereto shall cease, except (i) to the extent that such termination results
from the willful or reckless breach by any party hereto of any of its
representations or warranties, or of any of its covenants or agreements, in each
case, as set forth in this Agreement, (ii) that nothing herein shall relieve any
party for any breach of this Agreement and (iii) that Sections 7.2
(Confidentiality) and 9.3 (Expenses) shall survive termination of this Agreement
indefinitely.
SECTION 9.3. Expenses.
(a) The Company shall pay to Acquiror (the "Company
Termination Fee") by wire transfer the amount of Twenty Million Dollars
($20,000,000) if:
(i) the Company terminates this Agreement pursuant to Section
9.1(g), in which case, the Company Termination Fee must be paid
simultaneously with such termination;
(ii) Acquiror terminates this Agreement pursuant to Section
9.1(f), in which case, the Company Termination Fee must be paid no
later than three business days after the termination of this Agreement;
or
(iii) (A) Acquiror or the Company terminates this Agreement
pursuant to Section 9.1(d), (B) the approval of this Agreement by the
stockholders of the Company shall have not been obtained by reason of
the failure to obtain the required vote at the Stockholders' Meeting (a
"Company Negative Vote"), (C) at the time of such Company Negative Vote
there shall be pending an Acquisition Proposal, and (D) within one year
after such
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<PAGE>
termination, the Company consummates either (1) a merger, consolidation
or other business combination between the Company and any other person
(other than Acquiror, Merger Sub or an affiliate of Acquiror) or (2)
the sale of 30% or more (in voting power) of the voting securities of
the Company or of 30% or more (in fair market value) of the assets of
the Company and its Subsidiaries, on a consolidated basis, in which
case, the Company Termination Fee must be paid simultaneously with the
closing of the event described in clause (1) or (2) of this
subparagraph.
(b) Except as set forth above and in Sections 7.4, 7.5 and
9.2, all fees and expenses incurred in connection with the Merger, this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such fees or expenses, whether or not the Merger is consummated.
SECTION 9.4. Amendment.
This Agreement may be amended by the parties hereto by action
taken by or on behalf of their respective Boards of Directors at any time prior
to the Effective Time; provided, however, that, after approval of this Agreement
and the Merger by the stockholders of the Company, no amendment may be made
which would reduce the amount or change the type of consideration into which
each share of Capital Stock shall be converted pursuant to this Agreement upon
consummation of the Merger or which by law otherwise requires the further
approval of such stockholders. This Agreement may not be amended except by an
instrument in writing signed by the parties hereto.
SECTION 9.5. Waiver.
At any time prior to the Effective Time, each party may (a)
extend the time for the performance of any of the obligations or other acts of
the other parties, (b) waive any inaccuracies in the representations and
warranties contained in this Agreement or in any document delivered pursuant to
this Agreement by the other parties and (c) waive compliance by the other
parties with any of the agreements or conditions contained in this Agreement.
Any such extension or waiver shall be valid only if set forth in an instrument
in writing signed on behalf of such party. No delay or failure on the part of
any party hereto in exercising any right, power or privilege under this
Agreement or under any other instrument or document given in connection with or
pursuant to this Agreement shall impair any such right, power or privilege or be
construed as a waiver of any default or any acquiescence therein. No single or
partial exercise of any such right, power or privilege shall preclude the
further exercise of such right, power or privilege, or the exercise of any other
right, power or privilege.
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<PAGE>
ARTICLE X.
GENERAL PROVISIONS
SECTION 10.1. Nonsurvival of Representations, Warranties and
Agreements.
The representations, warranties and agreements in this
Agreement (and in any certificate delivered in connection with the Closing)
shall be deemed to be conditions to the Merger (or the Exchange Offer, as
applicable) and shall not survive the Effective Time (or consummation of the
Exchange Offer, as applicable) or termination of this Agreement, except for the
agreements set forth in Articles I (the Merger) and II (Conversion of
Securities; Exchange of Certificates) and Sections 7.7 (Indemnification and
Insurance), 7.8 (Employee Benefits Matters) 7.9 (Further Action) and 7.15(g)
(Subsequent Merger), each of which shall survive the Effective Time (or
consummation of the Exchange Offer, as applicable) indefinitely, and Sections
7.2 (Confidentiality), 9.2 (Effect of Termination) and 9.3 (Expenses), each of
which shall survive termination of this Agreement indefinitely.
SECTION 10.2. 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 delivered, mailed or transmitted, and shall be effective upon
receipt, if delivered personally, 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) or sent by electronic transmission to the telecopier number
specified below:
(a) If to Acquiror:
Loral Space & Communications Ltd.
600 Third Avenue
New York, New York 10016
Telecopier No.: (212) 338-5350
Attention: Eric J. Zahler, Esq.
With a copy (which shall not constitute
notice) to:
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022
Telecopier No.: (212) 821-8111
Attention: Bruce R. Kraus, Esq.
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<PAGE>
(b) If to the Company:
Orion Network Systems, Inc.
2440 Research Boulevard
Suite 400
Rockville, Maryland 20850
Telecopier No.: (301) 258-3300
Attention: President
With a copy (which shall not constitute
notice) to:
Hogan & Hartson L.L.P.
Columbia Square
555 Thirteenth Street, N.W.
Washington, DC 20004
Telecopier No.: (202) 637-5910
Attention: Anthony S. Harrington, Esq.
SECTION 10.3. Certain Definitions.
For purposes of this Agreement, the term:
(a) "affiliate" 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;
(b) "beneficial owner" means with respect to any shares of
Capital Stock or Acquiror Shares a person who shall be deemed to be the
beneficial owner of such shares (i) which such person or any of its affiliates
or associates beneficially owns, directly or indirectly, (ii) which such person
or any of its affiliates or associates (as such term is defined in Rule 12b-2 of
the Exchange Act) has, directly or indirectly, (A) the right to acquire (whether
such right is exercisable immediately or subject only to the passage of time),
pursuant to any agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or otherwise, or (B)
the right to vote pursuant to any agreement, arrangement or understanding, (iii)
which are beneficially owned, directly or indirectly, by any other persons with
whom such person or any of its affiliates or associates has any agreement,
arrangement or understanding for the purpose of acquiring, holding voting or
disposing of any such shares or (iv) pursuant to Section 13(d) of the Exchange
Act and any rules or regulations promulgated thereunder;
(c) "business day" shall mean any day other than a day on
which banks in the State of Maryland are authorized or obligated to be closed;
(d) "control" (including the terms "controlled by" and "under
common control with") means the possession, directly or indirectly or as trustee
or executor, of the power to direct or cause the direction of the management or
policies of a person, whether through the ownership of stock or as trustee or
executor, by contract or credit arrangement or otherwise;
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<PAGE>
(e) "person" means an individual, corporation, partnership,
association, trust, unincorporated organization, other entity or group (as
defined in Section 13(d) of the Exchange Act);
(f) "reasonable efforts" shall mean, as to a party hereto, an
undertaking by such party to perform or satisfy an obligation or duty or
otherwise act in a manner reasonably calculated to obtain the intended result by
action or expenditure not disproportionate or unduly burdensome in the
circumstances, which means, among other things, that such party shall not be
required to (i) expend funds other than for payment of the reasonable and
customary costs and expenses of employees, counsel, consultants, representatives
or agents of such party in connection with the performance or satisfaction of
such obligation or duty or other action or (ii) institute litigation or
arbitration as a part of its reasonable efforts.
SECTION 10.4. 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.
SECTION 10.5. 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 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 any 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 extent possible.
SECTION 10.6. Entire Agreement.
This Agreement (together with the Exhibits, the Schedules and
the other documents delivered pursuant hereto) and the Confidentiality Agreement
constitute the entire agreement of the parties and supersede all prior
agreements and undertakings, both written and oral, between the parties, or any
of them, with respect to the subject matter hereof and, except as otherwise
expressly provided herein, are not intended to confer upon any other person any
rights or remedies hereunder.
SECTION 10.7. Specific Performance.
The transactions contemplated by this Agreement are unique.
Accordingly, each of the parties acknowledges and agrees that, in addition to
all other remedies to which it may be entitled, each of the parties hereto is
entitled to a decree of specific performance, provided such party is not in
material default hereunder.
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<PAGE>
SECTION 10.8. Assignment.
Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties hereto (whether by
operation of law or otherwise) without the prior written consent of the other
party. Subject to the preceding sentence, this Agreement shall be binding upon,
inure to the benefit of and be enforceable by the parties and their respective
successors and assigns.
SECTION 10.9. Third Party Beneficiaries.
This Agreement shall be binding upon and inure solely to the
benefit of each party hereto, and nothing in this Agreement, express or implied,
is intended to or shall confer upon any other person any right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement except for
(a) the Indemnified Parties under Section 7.7, and (b) the rights of the holders
of Capital Stock to receive the Merger Consideration payable in the Merger
pursuant to Article II or to receive the Exchange Consideration payable in the
Exchange Offer pursuant to Section 7.15.
SECTION 10.10. Governing Law.
This Agreement shall be governed by, and construed in
accordance with, the Delaware Law, regardless of the laws that might otherwise
govern under applicable principles of conflicts of law.
SECTION 10.11. Counterparts.
This Agreement may be executed and delivered in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed and delivered shall be deemed to be an original but all
of which taken together shall constitute one and the same agreement.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement and Plan of Merger to be executed and delivered as of the date first
written above.
LORAL SPACE & COMMUNICATIONS LTD.
By: /s/ Eric J. Zahler
Name: Eric J. Zahler
Title: Vice President, General
Counsel and Secretary
LORAL SATELLITE CORPORATION
By: /s/ Eric J. Zahler
Name: Eric J. Zahler
Title: Vice President, General
Counsel and Secretary
ORION NETWORK SYSTEMS, INC.
By: /s/ W. Neil Bauer
Name: W. Neil Bauer
Title: President and Chief Executive Officer
<PAGE>
EXHIBIT A TO AGREEMENT AND PLAN OF MERGER
FORM OF AFFILIATE LETTER
_________________ _____, 1997
Loral Space & Communications Ltd.
600 Third Avenue
New York, New York 10016
Ladies and Gentlemen:
I have been advised that as of the date hereof I may be deemed to be an
"affiliate" of Orion Network Systems, Inc., a Delaware 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 October 7,
1997 (the "Merger Agreement"), among the Company, Loral Space & Communications
Ltd., a Bermuda company ("Acquiror"), and Loral Satellite Corporation, a
Delaware corporation and wholly-owned subsidiary of Acquiror ("Merger Sub"),
Merger Sub will be merged with and into the Company (the "Merger"), and that as
a result of the Merger, I may receive Acquiror Shares (as defined in the Merger
Agreement), in exchange for shares of Common Stock (as defined in the Merger
Agreement), owned by me.
I represent, warrant and covenant to Acquiror that in the event I
receive any Acquiror Shares as a result of the Merger:
(a) I shall not make any sale, transfer or other disposition of the
Acquiror Common Stock in violation of the Act or the Rules and Regulations.
(b) I have carefully read this letter and the Merger Agreement and
discussed their respective requirements and other applicable limitations upon my
ability to sell, transfer or otherwise dispose of Acquiror Shares.
(c) I have been advised that the issuance of Acquiror Shares to me
pursuant to the Merger will be registered with the Commission under the Act on a
Registration Statement on Form S-4. However, I have also been advised that,
since at the time the Merger will be submitted for a vote of the stockholders of
the Company, I may be deemed to have been an affiliate of the Company and the
distribution by me of Acquiror Shares has not been registered under the Act, I
may not sell, transfer or otherwise dispose of Acquiror Shares issued to me in
the
<PAGE>
Merger unless (i) such sale, transfer or other disposition has been registered
under the Act, (ii) such sale, transfer or other disposition is made in
conformity with the volume and other limitations of Rule 145 promulgated by the
Commission under the Act, or (iii) in accordance with a legal opinion of counsel
reasonably acceptable to Acquiror, such sale, transfer or other disposition is
otherwise exempt from registration under the Act.
(d) I understand that Acquiror is under no obligation to register the
sale, transfer or other disposition of Acquiror Shares by me or on my behalf
under the Act or to take any other action necessary in order to make compliance
with an exemption from such registration available.
(e) I also understand that stop transfer instructions will be given to
Acquiror's transfer agent with respect to Acquiror Shares and that there will be
placed on the certificates for Acquiror Shares issued to me, or any
substitutions therefor, a legend stating in substance:
"The securities represented by this certificate have
been issued in a transfer to which Rule 145 promulgated under
the Securities Act of 1933 applies and may only be sold or
otherwise transferred in compliance with the requirements of
Rule 145 or pursuant to a registration statement under said
act or an exemption from such registration."
(f) I also understand that unless the transfer by me of my Acquiror
Shares has been registered under the Act or is a sale made in conformity with
the provisions of Rule 145, Acquiror 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 the 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
(e) and (f) above shall be removed by delivery of substitute certificates
without such legend if the undersigned shall have delivered to Acquiror a copy
of a letter from the staff of the Commission, or a legal opinion of counsel in
form and substance reasonably satisfactory to Acquiror, to the effect that such
legend is not required for purposes of the Act.
Execution of this letter should not be construed as an admission by me
that I am an "affiliate" of the Company as described in the first paragraph
hereof or considered as a waiver of any rights that I may have to object to any
claim that I am such an affiliate on or after the date hereof.
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<PAGE>
I understand that pursuant to the Merger Agreement, no certificate for
Acquiror Shares shall be delivered to me in exchange for certificates
representing Common Stock until I have executed and delivered this Agreement.
Very truly yours,
By:______________________________
Name:_________________________
Accepted this _ day of
___________________, 1997 by
LORAL SPACE & COMMUNICATIONS LTD.
By:___________________
Name:_________________
Title:________________
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<PAGE>
EXHIBIT 3
JOINT FILING AGREEMENT
The undersigned hereby agree that the statement on Schedule 13D dated
October 17, 1997, with respect to the Common Stock of Orion Network Systems,
Inc. is, and any amendments thereto signed by each of the undersigned shall be,
filed on behalf of each of us pursuant to and in accordance with the provisions
of Rule 13d-1(f) under the Securities Exchange Act of 1934.
This Agreement may be executed in counterparts, each of which shall for
all purposes be deemed to be an original and all of which shall constitute one
and the same instrument.
Dated: October 17, 1997
LORAL SPACE & COMMUNICATIONS LTD.
By: /s/ Eric J. Zahler
-------------------------------
Name: Eric J. Zahler
Title: Vice President,
Secretary and General
Counsel
LORAL SATELLITE CORPORATION
By: /s/ Eric J. Zahler
-----------------------------
Name: Eric J. Zahler
Title: Vice President,
Secretary and General
Counsel
