<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES AND EXCHANGE ACT OF 1934
Date of Report (Date of Earliest Event Reported): December 31, 1996
MID-PLAINS, INC.
(Exact name of registrant as specified in its charter)
WISCONSIN
(State or Other Jurisdiction of Incorporation)
0-08320 39-0274450
(Commission (IRS Employer
File Number) Identification No.)
1912 Parmenter Street, P.O. Box 620070, Middleton, Wisconsin 53562-0070
(Address of principal executive offices) (Zip Code)
(608) 831-1000
(Registrant's Telephone Number, Including Area Code)
Item 5. Other Events
Registrant entered into an Agreement and Plan of Merger with Pioneer
Communications, Inc., a Wisconsin corporation, effective December 31, 1996.
Item 7. Financial Statements and Exhibits
(c) Exhibits
(2.1) Agreement and Plan of Merger, dated as of December 31, 1996,
by Mid-Plains, Inc. and Pioneer Communications, Inc.*
*The schedules and exhibits to this document are not being filed.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
MID-PLAINS, INC.
By: /s/Howard Hopeman
Howard Hopeman
Vice President and
Chief Financial Officer
Date: January 7, 1997
<PAGE>
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of
December 31, 1996, ("the date hereof"), between and among the following
Wisconsin corporations: Pioneer Communications, Inc. ("Pioneer") and
Mid-Plains, Inc. ("Mid-Plains"). Pioneer and Mid-Plains are herein
sometimes referred to collectively as the "Companies" or the "Parties,"
or individually as the "Party."
W I T N E S S E T H
WHEREAS, the Companies consider it advantageous to establish a
parent corporation, the name of which shall be selected by the Parties
subsequent to the date hereof (referred to herein as the "Parent") which
shall be a holding company rather than an operating company in order to
realize efficiencies and economies in operations of the telephone systems
of the Companies, to provide better service to their customers, and to
promote the flexibility needed for expansion of the business of the
Companies; and
WHEREAS, the Boards of Directors of the respective Parties hereto
deem it advisable and in the best interests of the respective Parties and
their respective shareholders to merge Pioneer Acquisitions (as defined
in Section 1.2 hereof) into Pioneer and to merge Mid-Plains Acquisitions
(as defined in Section 1.2 hereof) into Mid-Plains in accordance with the
Wisconsin Business Corporation Law and this Agreement, whereby each
holder of shares of Pioneer common stock will receive four (4) shares of
Parent common stock for each share presently held of Pioneer common
stock, and each holder of shares of Mid-Plains common stock will receive
the same number of shares of Parent common stock as those presently held
of Mid-Plains; and
WHEREAS, the Boards of Directors of the respective Parties hereto
have each determined that the Merger (as defined in Section 1.2 hereof)
and the other transactions contemplated hereby are consistent with, and
in furtherance of, their respective business strategies and goals and
have each approved the Merger upon the terms and conditions set forth
herein; and
WHEREAS, for federal income tax purposes, it is intended that the
Merger shall constitute a tax-free reorganization under Section 368 of
the Internal Revenue Code of 1986, as amended (the "Code"); and
WHEREAS, for accounting purposes, it is intended that the Merger
shall be accounted for as a pooling of interests under generally accepted
accounting principles ("GAAP").
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements, provisions, covenants and grants herein contained, and
intending to be legally bound hereby in accordance with the laws of the
State of Wisconsin, the Parties hereto agree as follows:
<PAGE>
ARTICLE I
THE MERGER
SECTION 1.1 Formation of the Holding Company. Mid-Plains will form
a Parent under the Wisconsin Business Corporation Law ("Wisconsin Law")
as a wholly-owned subsidiary of Mid-Plains. At the Effective Time
(defined in Section 1.4 below), Mid-Plains and Pioneer shall be
wholly-owned subsidiaries of Parent as set forth in Section 1.3 hereof.
SECTION 1.2 Formation of the Merger Subsidiaries. Parent will form
under Wisconsin Law Pioneer Acquisitions, Inc. ("Pioneer Acquisitions")
and Mid-Plains Acquisitions, Inc. ("Mid-Plains Acquisitions") under
Wisconsin Law. Pioneer Acquisitions and Mid-Plains Acquisitions will be
wholly-owned subsidiaries of Parent and shall be merged into Pioneer and
Mid-Plains, respectively, (collectively, the "Merger") as set forth in
Section 1.3 hereof. Pioneer Acquisitions and Mid-Plains Acquisitions are
herein sometimes referred to collectively as the "Merger Subsidiaries."
The Merger Subsidiaries will be formed solely to facilitate the Merger
and will conduct no business or activity other than in connection with
the Merger.
SECTION 1.3 The Merger. At the Effective Time and subject to and
upon the terms and conditions of this Agreement and Wisconsin Law, the
Merger shall be consummated, whereby Pioneer Acquisitions shall be merged
with and into Pioneer, the separate corporate existence of Pioneer
Acquisitions shall cease, and Pioneer shall continue as the surviving
corporation which shall be a wholly-owned subsidiary of Parent; and,
whereby Mid-Plains Acquisitions shall be merged with and into Mid-Plains,
the separate corporate existence of Mid-Plains Acquisitions shall cease,
and Mid-Plains shall continue as the surviving corporation which shall
also be a wholly-owned subsidiary of Parent. Pioneer and Mid-Plains, as
the surviving corporations after the Merger, are herein sometimes
referred to as the "Surviving Corporations" and the Merger Subsidiaries,
as the non-surviving corporations after the Merger, are herein sometimes
referred to as the "Merged Corporations."
SECTION 1.4 Effective Time. As promptly as practicable after the
satisfaction or waiver of the conditions set forth in Article VIII hereof
and the consummation of the Closing referred to in Section 7.2(b) hereof,
the Parties shall cause the Merger to be consummated by filing Articles
of Merger with the Department of Financial Institutions of the State of
Wisconsin with respect to the Merger, in such form as required by, and
executed in accordance with, the relevant provisions of Wisconsin Law
(the time of such filing being the "Effective Time").
SECTION 1.5 Effect of the Merger. At the Effective Time, the
effect of the Merger shall be as provided in the applicable provisions
of Wisconsin Law. Without limiting the generality of the foregoing, and
subject thereto, at the Effective Time all the property, rights,
privileges, powers and franchises of the Surviving Corporations and the
Merged Corporations shall continue with, or vest in, as the case may be,
Pioneer and Mid-Plains, respectively, as the Surviving Corporations, and
all debts, liabilities and duties of the Surviving Corporations and the
Merged Corporations shall continue to be, or become, as the case may be,
the debts, liabilities and duties of Pioneer and Mid-Plains,
respectively, as the Surviving Corporations. As of the Effective Time,
the Surviving Corporations shall be direct wholly-owned subsidiaries of
Parent.
SECTION 1.6 Articles of Incorporation; Bylaws; Directors and
Officers of Surviving Corporations. Unless otherwise agreed by Pioneer
and Mid-Plains before the Effective Time, at the Effective Time:
(a) the Articles of Incorporation of Pioneer shall be the Articles
of Incorporation of Pioneer as in effect immediately prior to the
Effective Time, until thereafter amended as provided by law.
(b) the Bylaws of Pioneer shall be the Bylaws of Pioneer
immediately prior to the Effective Time, until thereafter amended as
provided by law; and
(c) the directors and officers of Pioneer immediately prior to the
Effective Time shall continue to serve in their respective offices of
Pioneer from and after the Effective Time, in each case until their
successors are elected or appointed and qualified or until their
resignation or removal. If, at the Effective Time, a vacancy shall exist
on the Board of Directors or in any office of Pioneer, such vacancy may
thereafter be filled in the manner provided by law and the Bylaws of
Pioneer.
(d) the Restated Articles of Incorporation of Mid-Plains shall be
the Restated Articles of Incorporation of Mid-Plains as in effect
immediately prior to the Effective Time, until thereafter amended as
provided by law.
(e) the Restated Bylaws of Mid-Plains shall be the Restated Bylaws
of Mid-Plains immediately prior to the Effective Time, until thereafter
amended as provided by law; and
(f) the directors and officers of Mid-Plains immediately prior to
the Effective Time shall continue to serve in their respective offices
of Mid-Plains from and after the Effective Time, in each case until their
successors are elected or appointed and qualified or until their
resignation or removal. If, at the Effective Time, a vacancy shall exist
on the Board of Directors or in any office of Mid-Plains, such vacancy
may thereafter be filled in the manner provided by law and the Restated
Bylaws of Mid-Plains.
<PAGE>
ARTICLE II
EFFECT ON STOCK OF THE SURVIVING
CORPORATIONS AND THE MERGED CORPORATIONS
SECTION 2.1 Conversion of Securities. The manner and basis of
converting the shares of common stock of the Surviving Corporations and
of the Merged Corporations at the Effective Time, by virtue of the Merger
and without any action on the part of any of the Parties or the holder
of any of such securities, shall be as hereinafter set forth in this
Article II.
SECTION 2.2 Conversion of Shares. (a) Each then issued and
outstanding share of common stock, no par value, of Mid-Plains
("Mid-Plains Common Stock") and all rights in respect thereof, which shall
not be deemed to include any share then held in its treasury, shall by
virtue of the Merger and without any action on the part of the holder
thereof, forthwith cease to exist and be converted into one outstanding
share of no par value common stock of Parent, whereupon each such share of
Mid-Plains Common Stock so converted shall be deemed to be a share acquired
by Mid-Plains and held in its treasury. Each such share of Parent common
stock so issued shall thereupon be fully paid and nonassessable, except
as provided under sec. 180.0622 of Wisconsin Law.
(b) The then outstanding shares of common stock of Mid-Plains
Acquisitions ("Mid-Plains Acquisitions Common Stock") shall, by virtue
of the Merger and without any action on the part of Parent, be converted
into a number of shares of Mid-Plains transferred from those deemed
acquired by Mid-Plains and held in its treasury pursuant to subsection
(a) above, equal to the number of shares of Parent common stock issued
pursuant to subsection (a) above. Each such share of Mid-Plains shall
thereupon be fully paid and nonassessable, except as provided under sec.
180.0622 of Wisconsin Law.
(c) Each then outstanding share of common stock, $.01 par value,
of Pioneer ("Pioneer Common Stock") and all rights in respect thereof,
which shall not be deemed to include any share then held in its treasury,
shall by virtue of the Merger and without any action on the part of the
holder thereof, forthwith cease to exist and be converted into four (4)
outstanding shares of no par value common stock of Parent, whereupon each
such share of Pioneer Common Stock so converted shall be deemed to be a
share acquired by Pioneer and held in its treasury. Each such share of
Parent common stock so issued shall thereupon be fully paid and
nonassessable, except as provided under sec. 180.0622 of Wisconsin Law.
Such ratio of Pioneer Common Stock to Parent common stock is herein
referred to as the "Exchange Ratio."
(d) The then outstanding shares of common stock of Pioneer
Acquisitions shall, by virtue of the Merger and without any action on the
part of Parent, be converted into the number of shares of Pioneer
transferred from those deemed acquired by Pioneer and held in its
treasury pursuant to subsection (c) above. Each such share of Pioneer
shall thereupon be fully paid and nonassessable, except as provided under
sec. 180.0622 of Wisconsin Law.
(e) All shares of Mid-Plains Common Stock and Pioneer Common
Stock thereafter remaining in the Companies' respective treasuries shall
be cancelled.
(f) The 100 shares of Parent common stock owned by Mid-Plains
immediately prior to the Merger shall by virtue of the Merger and without
further action be deemed transferred to Parent's treasury and cancelled.
SECTION 2.3. Stock Certificates. (a) Following the Effective
Time, each holder of an outstanding certificate or certificates
theretofore representing shares of Mid-Plains Common Stock may, but shall
not be required to, surrender the same to Parent for cancellation or
transfer, and each such holder or transferee will be entitled to receive
a certificate or certificates representing the same number of shares of
Parent common stock based on the shares of Mid-Plains Common Stock
previously represented by the stock certificate(s) surrendered. Until
so surrendered or presented for transfer, each outstanding certificate
or certificates which prior to the Effective Time represented the
Mid-Plains Common Stock shall be deemed and treated for all corporate
purposes to represent the ownership of the same number of shares of
Parent common stock as though such surrender or transfer and exchange had
taken place. The stock transfer books for Mid-Plains Common Stock shall
be deemed to be closed at the Effective Time, and no transfer of shares
of Mid-Plains Common Stock outstanding prior to and at the Effective Time
shall thereafter be made on such books, provided, however, shares of
Mid-Plains Common Stock owned by Parent pursuant to Section 2.2 (b) hereof
or issued after the Effective Time to any holder shall be fully
transferrable unless otherwise directed by the Board of Directors of
Mid-Plains.
(b) Following the Effective Time, each holder of an outstanding
certificate or certificates theretofore representing shares of Pioneer
Common Stock may, but shall not be required to, surrender the same to
Parent for cancellation or transfer, and each such holder or transferee
will be entitled to receive a certificate or certificates representing
the number of shares of Parent common stock as finally determined
pursuant to Section 2.2 (c) hereof. Until so surrendered or presented
for transfer, each outstanding certificate, which prior to the Effective
Time represented Pioneer Common Stock, shall be deemed and treated for
all corporate purposes to represent the ownership of the number of shares
of Parent common stock finally determined pursuant to Section 2.2(c)
hereof. The stock transfer books for Pioneer Common Stock shall be
deemed to be closed at the Effective Time, and no transfer of shares of
Pioneer Common Stock outstanding prior to and at the Effective Time shall
thereafter be made on such books, provided, however, shares of Pioneer
Common Stock owned by Parent pursuant to Section 2.3(d) hereof or issued
after the Effective Time to any holder shall be fully transferrable
unless otherwise directed by the Board of Directors of Pioneer.
SECTION 2.4 Transfer Books. The stock transfer books of Pioneer
and Mid-Plains shall be closed at the Effective Time and no transfer of
any Pioneer Common Stock or Mid-Plains Common Stock will thereafter be
recorded on any of such stock transfer books. In the event of a transfer
of ownership of Pioneer or Mid-Plains Common Stock that is not registered
in the stock transfer records of Pioneer or Mid-Plains, respectively, at
the Effective Time, a certificate or certificates representing the number
of shares of Parent common stock into which such Pioneer or Mid-Plains
Common Stock shall have been converted shall be issued to the transferee.
SECTION 2.5 No Fractional Share Certificates. No scrip or
fractional share certificate for Parent common stock will be issued upon
the surrender for exchange of certificates evidencing Pioneer or
Mid-Plains Common Stock.
<PAGE>
ARTICLE III
CERTAIN MATTERS RELATED TO PARENT
SECTION 3.1 Articles of Incorporation of Parent and Bylaws. (a)
At the Effective Time and subject to and upon the terms and conditions
of this Agreement and Wisconsin Law, Parent shall cause the Articles of
Incorporation of Parent to be amended and restated to read as set forth
Schedule 3.1(a) hereto. Such amendment and restatement of the Parent
Articles of Incorporation is referred to herein as the "Articles
Amendment."
(b) The Bylaws of Parent are as set forth in Schedule 3.1(b)
hereto.
SECTION 3.2 Dividends. (a) From the date hereof to the Effective
Time, each of Pioneer and Mid-Plains shall coordinate with the other the
declaration of, and the setting of record dates and payment dates for,
dividends on Pioneer Common Stock and Mid-Plains Common Stock; provided,
however, that (i) Pioneer may not declare an annualized dividend in 1996
in excess of $3.75 per share, (ii) Mid-Plains may not declare an
annualized dividend in 1996 in excess of $1.08 per share, (iii) Pioneer
may not declare an annualized dividend in 1997 in excess of $4.32 per
share, and Mid-Plains may not declare an annualized dividend in 1997 in
excess of $1.08. The Companies may declare dividends in 1997, provided
they do so on a prorata quarterly basis. As such, the Companies may not
declare a dividend per share for a period in 1997 consisting of less than
one (1) fiscal quarter. For example, if the Effective Time is August 1,
1997, then Pioneer may declare a dividend of $2.16 per share effective
immediately prior to the Effective Time, and Mid-Plains may declare a
dividend of $0.54 per share immediately prior to the Effective Time,
provided that neither of the Companies declared a dividend for the first
fiscal quarter of 1997. Pursuant to the foregoing, dividends maybe paid
prior to or subsequent to the Effective Time.
(b) It is the present intention of the Companies that, after the
Effective Time, the initial quarterly dividend per share of Parent common
stock shall be at least equal to $0.27, being the quotient of the
dividend paid on each share of Mid-Plains Common Stock for the last full
fiscal year immediately preceding the date hereof ($1.08), divided by
four (4), subject to approval and declaration thereof by the Board of
Directors of Parent.
SECTION 3.3 Headquarters. Pioneer and Mid-Plains agree that
commencing at the Effective Time the headquarters of Parent shall be
located in Dane County, Wisconsin.
<PAGE>
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PIONEER
Pioneer hereby represents and warrants as of the date hereof to
Mid-Plains as follows:
SECTION 4.1 Organization and Qualification; Subsidiaries. Each of
Pioneer and its Subsidiaries (as defined in Section 10.4) is a
corporation duly organized, validly existing and in good standing under
Wisconsin Law. Each of Pioneer and its Subsidiaries has the requisite
corporate power and authority and any necessary governmental authority,
franchise, license or permit to own, operate or lease the properties that
it purports to own, operate or lease and to carry on its business as it
is now being conducted, and is duly qualified as a foreign corporation
to do 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.
SECTION 4.2 Articles of Incorporation and Bylaws. Pioneer has
heretofore furnished, or otherwise made available, to Mid-Plains a
complete and correct copy of the Articles of Incorporation and the
Bylaws, each as amended to the date hereof, of Pioneer and each of its
Subsidiaries. Such Articles of Incorporation and Bylaws are in full
force and effect. Neither Pioneer nor any of its Subsidiaries is in
violation of any of the provisions of its respective Articles of
Incorporation or, in any material respect, its Bylaws.
SECTION 4.3 Capitalization. (a) The authorized capital stock of
Pioneer consists of 500,000 shares of Pioneer Common Stock, of which, as
of March 1, 1996, 173,140 shares were issued and outstanding, no shares
were held in the treasury of Pioneer.
(b) There are no outstanding obligations of Pioneer or any of
Pioneer's Subsidiaries to repurchase, redeem or otherwise acquire any
shares of capital stock of Pioneer.
(c) All of the issued and outstanding shares of Pioneer Common
Stock are validly issued, fully paid and nonassessable.
(d) All the outstanding capital stock of each of Pioneer's
Subsidiaries is duly authorized, validly issued, fully paid and
nonassessable, and is owned by Pioneer free and clear of any liens,
security interests, pledges, agreements, claims, charges or encumbrances,
except as provided in Schedule 4.3(d). There are no existing
subscriptions, options, warrants, calls, commitments, agreements,
conversion rights or other rights of any character (contingent or
otherwise) to purchase or otherwise acquire from Pioneer or any of
Pioneer's Subsidiaries at any time, or upon the happening of any stated
event, any shares of the capital stock of any Pioneer Subsidiary, whether
or not presently issued or outstanding, and there are no outstanding
obligations of Pioneer or any of Pioneer's Subsidiaries to repurchase,
redeem or otherwise acquire any shares of capital stock of any of
Pioneer's Subsidiaries. The options discussed in Schedule 4.3(d) shall
be exercised prior to the Effective Time or such options shall be void.
Except for those listed in Schedule 4.3(d), Pioneer does not directly or
indirectly own any equity interest in any other person (as defined in
Section 10.4).
SECTION 4.4 Authority Relative to this Agreement. Pioneer has the
necessary corporate power and authority to enter into this Agreement and,
subject to obtaining any necessary shareholder approval of this
Agreement, to carry out its obligations hereunder. The execution and
delivery of this Agreement by Pioneer and the consummation by Pioneer of
the transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of Pioneer, subject to the
approval of this Agreement by Pioneer's Shareholders required by
Wisconsin Law. This Agreement has been duly executed and delivered by
Pioneer and, assuming the due authorization, execution and delivery
thereof by the other Parties, constitutes a legal, valid and binding
obligation of Pioneer, enforceable against it in accordance with its
terms.
SECTION 4.5 No Conflict; Required Filings and Consents. (a) The
execution and delivery of this Agreement by Pioneer does not, and the
performance of this Agreement by Pioneer will not, (i) violate or
conflict with the Articles of Incorporation or Bylaws of Pioneer, (ii)
conflict with or violate any law, regulation, court order, judgment or
decree applicable to Pioneer or any of its Subsidiaries or by which any
of their respective property is bound or affected, (iii) violate or
conflict with the Articles of Incorporation or Bylaws of any of Pioneer's
Subsidiaries, (iv) 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 or
cancellation of, or result in the creation of a lien or encumbrance on
any of the properties or assets of Pioneer or any of its Subsidiaries
pursuant to, result in the loss of any material benefit under, or require
the consent of any other party to, any contract, instrument, permit,
license or franchise to which Pioneer or any of its Subsidiaries is a
party or by which Pioneer, any of such Subsidiaries or any of their
respective property is bound or affected, (v) to Pioneer's knowledge,
conflict with or violate any law, regulation, court order, judgment or
decree applicable to any of its Material Investments (defined in Section
10.4(f) or by which such Material Investments' property is bound or
affected, (vi) to Pioneer's knowledge, violate or conflict with the
Articles of Incorporation or Bylaws of any of its Material Investments,
or (vii) to Pioneer's knowledge, 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 or
cancellation of, or result in the creation of a lien or encumbrance on
any of the properties or assets of any of its Material Investments
pursuant to, or result in the loss of any material benefit under, or
require the consent of any other party to, any permit, license or
franchise to which any of its Material Investments is a party or by which
any of such Material Investments or any of their respective property is
bound or affected, except, in the case of clauses (ii), (iii), (iv), (v),
(vi) or (vii) above, for conflicts, violations, breaches, defaults,
results or consents which, individually or in the aggregate, would not
have a Material Adverse Effect on Pioneer.
(b) Except for applicable requirements, if any, of state regulatory
laws and commissions, the Federal Communications Commission, the Exchange
Act, filing and recordation of appropriate merger or other documents as
required by Wisconsin Law and any filings required pursuant to any state
securities or "blue sky" laws, neither Pioneer nor any of its
Subsidiaries is required to submit any notice, report or other filing
with any governmental authority, domestic or foreign, in connection with
the execution, delivery or performance of this Agreement. Except as set
forth in the immediately preceding sentence, no waiver, consent, approval
or authorization of any governmental or regulatory authority, domestic
or foreign, is required to be obtained by Pioneer or any of its
Subsidiaries in connection with its execution, delivery or performance
of this Agreement.
SECTION 4.6 SEC Filings, Financial Statements. (a) Pioneer is
exempt from filing any and all forms, reports and documents required to
be filed with the Securities and Exchange Commission ("SEC") under the
Exchange Act (as defined in Section 10.4 hereof).
(b) The financial statements, including all related notes and
schedules, contained in the 1995 Annual Report (or incorporated by
reference therein) fairly present the consolidated financial position of
Pioneer and its Subsidiaries as at the respective dates thereof and the
consolidated results of operations and cash flows of Pioneer and its
Subsidiaries for the periods indicated in accordance with GAAP applied
on a consistent basis throughout the periods involved (except for changes
in accounting principles disclosed in the notes thereto) and subject in
the case of interim financial statements to normal year-end adjustments.
SECTION 4.7 Absence of Certain Changes or Events. Since December
31, 1995, Pioneer and its Subsidiaries have not incurred any material
liability, except in the ordinary course of their businesses consistent
with their past practices, and there has not been any change, or any
event involving a prospective change, in the business, financial
condition or results of operations of Pioneer or any of its Subsidiaries
which has had, or is reasonably likely to have, a Material Adverse Effect
on Pioneer (by way of illustration, Pioneer has not incurred any material
financial obligations other than those shown on its December 31, 1995
balance sheet), and Pioneer and its Subsidiaries have conducted their
respective businesses in the ordinary course consistent with their past
practices.
SECTION 4.8 Litigation. Except as listed in Schedule 4.8, there
are no claims, actions, suits, proceedings or investigations pending or,
to Pioneer's knowledge, threatened against Pioneer or any of its
Subsidiaries, or any properties or rights of Pioneer or any of its
Subsidiaries, before any court, administrative, governmental, arbitral,
mediation or regulatory authority or body, domestic or foreign, as to
which there is more than a remote possibility of an adverse judgment or
determination against Pioneer or any of its Subsidiaries or any
properties or rights of Pioneer or any of its Subsidiaries.
SECTION 4.9 No Violation of Law. The business of Pioneer and its
Subsidiaries is not being conducted in violation of any statute, law,
ordinance, regulation, judgment, order or decree of any governmental or
judicial entity (including any self-regulatory body) ("Legal
Requirements"), or in violation of any permits, franchises, licenses,
authorizations or consents that are granted by any government or judicial
entity (including any self-regulatory body) ("Permits"), except for
possible violations none of which, individually or in the aggregate, may
reasonably be expected to have a Material Adverse Effect on Pioneer. No
investigation or review by any governmental or regulatory entity
(including any self-regulatory body) with respect to Pioneer or its
Subsidiaries in relation to any alleged violation of law or regulation
is pending or, to Pioneer's knowledge, threatened, nor has any
governmental or regulatory entity (including any self-regulatory body)
indicated an intention to conduct the same, except for such
investigations which, if they resulted in adverse findings, would not
reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect on Pioneer. Neither Pioneer nor any of its
Subsidiaries is subject to any cease and desist or other order, judgment,
injunction or decree issued by, or is a party to any written agreement,
consent agreement or memorandum of understanding with, or is a party to
any commitment letter or similar undertaking to, or is subject to any
order or directive by, or has adopted any board resolutions at the
request of, any court, governmental entity or regulatory agency that
materially restricts the conduct of its business or which may reasonably
be expected to have a Material Adverse Effect on Pioneer, nor has Pioneer
or any of its Subsidiaries been advised that any court, governmental
entity or regulatory agency is considering issuing or requesting any of
the foregoing. None of the representations and warranties made in this
Section 4.9 are being made with respect to Environmental Laws.
SECTION 4.10 Joint Proxy Statement. None of the information
supplied or to be supplied by or on behalf of Pioneer for inclusion or
incorporation by reference in the registration statement to be filed with
the SEC by Parent in connection with the issuance of shares of Parent
common stock in the Merger (the "Registration Statement") will, at the
time the Registration Statement becomes effective under the 1933 Act,
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading. None of the information supplied or to be supplied
by or on behalf of Pioneer for inclusion or incorporation by reference
in the joint proxy statement, in definitive form, relating to the
meetings of Pioneer and Mid-Plains Shareholders to be held in connection
with the Merger, or in the related proxy and notice of meeting, or
soliciting material used in connection therewith (referred to herein
collectively as the "Joint Proxy Statement") will, at the dates mailed
to Shareholders and at the times of the Pioneer Shareholders' meeting and
the Mid-Plains Shareholders' meeting, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light
of the circumstances under which they are made, not misleading. The
Registration Statement and the Joint Proxy Statement (except for
information relating solely to Mid-Plains) will comply as to form in all
material respects with the provisions of the 1933 Act and the Exchange
Act and the rules and regulations promulgated thereunder.
SECTION 4.11 Employee Matters; ERISA. (a) Set forth on
Schedule 4.11 hereto is a true and complete list of all employee benefit
plans covering present and former employees or directors of Pioneer and
of each of its Subsidiaries or their beneficiaries, or providing benefits
to such persons in respect of services provided to any such entity,
including, but not limited to, any employee benefit plans within the
meaning of Section 3(3) of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), any deferred compensation bonuses, stock
options, restricted stock plans, incentive compensation, severance or
change in control agreements and any other material benefit arrangements
or payroll practices (collectively, the "Pioneer Benefit Plans").
(b) With respect to the Pioneer Benefit Plans, individually and in
the aggregate, no event has occurred and, to Pioneer's knowledge, there
does not now exist any condition or set of circumstances, that could
subject Pioneer or any of its Subsidiaries to any material liability
arising under the Code, ERISA or any other applicable Legal Requirements
(including, without limitation, any liability to any such plan or the
Pension Benefit Guaranty Corporation (the "PBGC")), or under any
indemnity agreement to which Pioneer or any of its Subsidiaries is a
party, excluding liability for benefit claims and funding obligations
payable in the ordinary course.
(c) Except as set forth on Schedule 4.11 hereto, none of the
Pioneer Benefit Plans that are "welfare plans" within the meaning of
Section 3 (1) of ERISA provides for any retiree benefits other than
continuation coverage required to be provided under Section 4980B of the
Code or Part 6 of Title I of ERISA.
(d) Pioneer has made available to Mid-Plains a true and correct
copy of each current or last, in the case where there is no current,
expired collective bargaining agreement to which Pioneer or any of its
Subsidiaries is a party or under which Pioneer or any of its Subsidiaries
has obligations and, with respect to each Pioneer Benefit Plan, where
applicable, (i) such plan (but only to the extent such plan is intended
to be covered by Section 401 of the Code) and summary plan description,
(ii) the most recent annual report filed with the IRS, (iii) each related
trust agreement (including all material amendments to each such trust
agreement), (iv) the most recent determination of the IRS with respect
to the qualified status of such Pioneer Benefit Plan, and (v) the most
recent actuarial report or valuation.
(e) Except as set forth on Schedule 4.11 hereto, (i) the
consummation or announcement of any transaction contemplated by this
Agreement will not (either alone or upon the occurrence of any additional
or further acts or events) result in any (A) payment (whether of
severance pay or otherwise) becoming due from Pioneer or any of its
Subsidiaries to any officer, employee, former employee or director
thereof or to the trustee under any "rabbi trust" or similar arrangement,
or (B) benefit under any Pioneer Benefit Plan being established or
becoming accelerated, vested or payable and (ii) neither Pioneer nor any
of its Subsidiaries is a party to (A) any management, employment,
deferred compensation, severance (including any payment, right or benefit
resulting from a change in control), bonus or other contract for personal
services with any current or former officer, director or employee
(whether or not characterized as a plan for purposes of ERISA), (B) any
consulting contract with any person who prior to entering into such
contract was a director or officer of Pioneer or any of its Subsidiaries,
or (C) any plan, agreement, arrangement or understanding similar to any
of the items described in clause (ii) (A) or (B) of this sentence.
(f) The consummation or announcement of any transaction
contemplated by this Agreement will not (either alone or upon the
occurrence of any additional or further acts or events) result in the
disqualification of any of the Pioneer Benefit Plans intended to be
qualified under, result in a prohibited transaction or breach of
fiduciary duty under, or otherwise violate, ERISA or the Code.
(g) Neither Pioneer nor any of its Subsidiaries nor any of their
directors, officers, employees or agents, nor any "party in interest" or
"disqualified person", as such terms are defined in Section 3 of ERISA
and Section 4975 of the Code has, with respect to any Pioneer Benefit
Plan, engaged in or been a party to any "prohibited transaction", as such
term is defined in Section 4975 of the Code or Section 406 of ERISA which
is not otherwise exempt, which could result in the imposition of either
a penalty assessed pursuant to Section 502(i) of ERISA or a tax imposed
by Section 4975 of the Code or which could constitute a breach of
fiduciary duty, in each case applicable to Pioneer or any Pioneer Benefit
Plan and which would result in a Material Adverse Effect on Pioneer.
(h) No Pioneer Benefit Plan subject to Section 412 of the Code has
incurred any now existing "accumulated funding deficiency" (as defined
in ERISA), whether or not waived. Neither Pioneer nor any of its
Subsidiaries has incurred, and none of such entities reasonably expects
to incur, any material liability to the PBGC with respect to any Pioneer
Benefit Plan. Neither Pioneer nor any of its Subsidiaries is a party to,
and neither has incurred or reasonably expects to incur, any withdrawal
liability with respect to any "multiemployer plan" (as defined in Section
3 (37) of ERISA) for which there is any outstanding liability.
SECTION 4.12 Labor Matters. Except as disclosed on Schedule
4.12 hereto, neither Pioneer nor any of its Subsidiaries is party to any
collective bargaining agreement or other labor agreement with any union
or labor organization and no union or labor organization has been
recognized by Pioneer or any of its Subsidiaries as an exclusive
bargaining representative for employees of Pioneer or any of its
Subsidiaries. Except as disclosed on Schedule 4.12 hereto, to Pioneer's
knowledge, there is no current union representation question involving
employees of Pioneer or any of its Subsidiaries, nor does Pioneer have
knowledge of any significant activity or proceeding of any labor
organization (or representative thereof) or employee group to organize
any such employees. Neither Pioneer nor any of its Subsidiaries has made
any commitment not contained in the collective bargaining agreements
listed on Schedule 4.12 hereto that would require the application of the
terms of any collective bargaining agreements entered into by Pioneer or
any of its Subsidiaries to Mid-Plains, to any joint venture of Mid-Plains,
or to any Subsidiary of Mid-Plains (other than Pioneer or its
Subsidiaries). Except as disclosed on Schedule 4.12 hereto, (i) there
is no material active arbitration under any collective bargaining
agreements involving Pioneer or any of its Subsidiaries, (ii) there is
no material unfair labor practice, grievance, employment discrimination
or other labor or employment related charge, complaint or claim against
Pioneer or any of its Subsidiaries pending before any court, arbitrator,
mediator or governmental agency or tribunal, or, to Pioneer's knowledge,
threatened, (iii) there is no material strike, picketing or work stoppage
by, or any lockout of, employees of Pioneer or any of its Subsidiaries
pending or, to Pioneer's knowledge, threatened, against or involving
Pioneer or any of its Subsidiaries, (iv) there is no significant active
arbitration under any collective bargaining agreement involving Pioneer
or any of its Subsidiaries regarding the employer's right to move work
from one location or entity to another, or to consolidate work locations,
or involving other similar restrictions on business operations, (v) there
is no arbitration, administrative agency proceeding, suit or claim
pending, or, to Pioneer's knowledge, threatened, involving the "New
Businesses", "Neutrality Letter", and "Old Business Letter" provisions
contained in any collective bargaining agreement to which Pioneer or any
of its Subsidiaries is a party, and (vi) there is no material proceeding,
claim, suit, action or governmental investigation pending or, to
Pioneer's knowledge, threatened, in respect of which any director,
officer, employee or agent of Pioneer or any of its Subsidiaries is or
may be entitled to claim indemnification from Pioneer or such Pioneer
Subsidiary pursuant to their respective charters or bylaws or as provided
in the indemnification agreements, if any, listed on Schedule 4.12
hereto. For purposes of this Section 4.12, "material" refers to any
liability which could reasonably be expected to exceed $50,000.
SECTION 4.13 Environmental Matters. Except as set forth on
Schedule 4.13 hereto:
(a) To Pioneer's knowledge, Pioneer and each of its Subsidiaries
is in compliance with all applicable Environmental Laws (as defined
below) and neither Pioneer nor any of its Subsidiaries has received any
written or oral communication from any person or governmental authority
that alleges that Pioneer or any of its Subsidiaries is not in compliance
with applicable Environmental Laws where such non-compliance could
reasonably be expected to result in a Material Adverse Effect on Pioneer.
(b) To Pioneer's knowledge, Pioneer and each of its Subsidiaries
has obtained or has applied for all material environmental, health and
safety permits, licenses, variances, approvals and authorizations
(collectively, the "Environmental Permits") necessary for the
construction of their facilities or the conduct of their operations, and
all such material Environmental Permits are effective or, where
applicable, a renewal application has been timely filed and is pending
agency approval, and Pioneer and its Subsidiaries are in material
compliance with all terms and conditions of such Environmental Permits.
To Pioneer's knowledge, there are no past or present events, conditions,
circumstances, activities, practices, incidents, actions or plans that
may interfere with, or prevent, future continued material compliance on
the part of Pioneer or any of its Subsidiaries with such Environmental
Permits. Neither Pioneer nor any of its Subsidiaries has knowledge of
matters or conditions that would preclude reissuance or transfer of any
such Environmental Permit, including amendment of such instrument, to
Mid-Plains or one of its Subsidiaries, where such action is necessary to
maintain compliance with Environmental Laws in all material respects.
(c) To Pioneer's knowledge, there is no currently existing
requirement to be imposed in the future by any Environmental Law or
Environmental Permit which could reasonably be expected to result in the
incurrence of a material cost by Pioneer or any of its Subsidiaries.
(d) To Pioneer's knowledge, there is no material Environmental
Claim (as defined below) pending or threatened (i) against Pioneer or any
of its Subsidiaries, (ii) against any person whose liability for any
Environmental Claim Pioneer or any of its Subsidiaries has or may have
retained or assumed either contractually or by operation of law, or (iii)
against any real or personal property or operations which Pioneer or any
of its Subsidiaries owns, leases or manages, in whole or in part.
(e) To Pioneer's knowledge, there have been no Releases (as defined
below) of any Hazardous Material (as defined below) that would be
reasonably likely to form the basis of any material Environmental Claim
against Pioneer or any of its Subsidiaries, or against any person whose
liability for any material Environmental Claim Pioneer or any of its
Subsidiaries has or may have retained or assumed either contractually or
by operation of law.
(f) To Pioneer's knowledge, with respect to any predecessor of
Pioneer or any of its Subsidiaries, there is no material Environmental
Claim pending or threatened, or any Release of Hazardous Materials that
would be reasonably likely to form the basis of any material
Environmental Claim against Pioneer or any of its Subsidiaries.
(g) To Pioneer's knowledge, Pioneer has disclosed to Mid-Plains all
material facts which Pioneer reasonably believes form the basis of a
material current or future cost relating to any environmental matter
affecting Pioneer and its Subsidiaries which Pioneer believes will or is
reasonably likely to result in a Material Adverse Effect on Pioneer.
(h) To Pioneer's knowledge, neither Pioneer nor any of its
Subsidiaries, nor any owner of premises leased or operated by Pioneer or
any of its Subsidiaries, has filed any notice with respect to such
premises under federal, state, local or foreign law indicating past or
present treatment, storage or disposal of Hazardous Materials, as
regulated under 40 C.F.R. Parts 264-267 or any state or local equivalent
or is engaging or has engaged in business operations involving the
generation, transportation, treatment, recycle or disposal of any waste
(excluding low level radioactive tubes from central office equipment or
typical smoke and fire alarm components) regulated under Environmental
Laws pertaining to radioactive materials or the nuclear power industry.
(i) To Pioneer's knowledge, none of the properties owned, leased
or operated by Pioneer, its Subsidiaries or any predecessor thereof are
now, or were in the past, listed on the National Priorities List of
Superfund Sites (the "NPL"), the Comprehensive Environmental Response,
Compensation and Liability Information System ("CERCLIS"), or any other
comparable state or local environmental database (excluding easements
that transgress such Superfund or CERCLIS sites).
(j) To Pioneer's knowledge, the Merger will not require any
governmental approvals under the Environmental Laws, including those that
are triggered by sales or transfers of businesses or real property.
For purposes of this Section 4.13 and Section 5.13 hereof:
(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
(including any federal, state, local or foreign governmental
authority) alleging potential liability (including, without
limitation, potential responsibility for or liability for
enforcement, investigatory costs, cleanup costs, governmental
response costs, removal costs, remedial costs, natural resources
damages, property damages, personal injuries or penalties) arising
out of, based on or resulting from (A) the presence, or Release or
threatened Release into the environment, of any Hazardous Materials
at any location, whether or not owned, operated, leased or managed
by Pioneer or any of its Subsidiaries (for purposes of this Section
4.13) or by Mid-Plains or any of its Subsidiaries (for purposes of
Section 5.13 hereof) (including but not limited to obligations to
clean up contamination resulting from leaking underground storage
tanks); or (B) circumstances forming the basis of any violation or
alleged violation of any Environmental Law; or (C) any and all
claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief
resulting from the presence or Release of any Hazardous Materials.
(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 (A) any petroleum or any
by-products or fractions thereof, asbestos in any form that is or
could become friable, urea formaldehyde foam insulation, any form
of natural gas, explosives, and polychlorinated biphenyls ("PCBs");
(B) any chemicals, materials or substances, whether waste
materials, raw materials or finished products, which are now
defined as or included in the definition of "hazardous substances,"
"hazardous wastes," "hazardous materials," "extremely hazardous
substances," "restricted hazardous wastes," "toxic substances,"
"toxic pollutants," "pollutants," "contaminants," or words of
similar import under any Environmental Law; and (C) any other
chemical, material or substance, whether waste materials, raw
materials or finished products, regulated or forming the basis of
liability under any Environmental Law.
(iv) "Release" means any release, spill, emission, leaking,
injection, deposit, disposal, discharge, dispersal, leaching or
migration into the environment (including without limitation
ambient air, atmosphere, soil, surface water, groundwater or
property).
SECTION 4.14 Board Action; Vote Required. (a) The Board of
Directors of Pioneer has unanimously determined that the transactions
contemplated by this Agreement are in the best interests of Pioneer and
its Shareholders and has resolved to recommend to such Shareholders that
they vote in favor thereof.
(b) The approval of this Agreement by a majority of the votes
entitled to be cast by all holders of Pioneer Common Stock is the only
vote of the holders of any class or series of the capital stock of
Pioneer required to approve this Agreement, the Merger and the other
transactions contemplated hereby.
SECTION 4.15 Opinion of Financial Advisor. Pioneer shall
receive the opinion of an investment banker or other qualified entity to
the effect that, as of the date hereof, the Exchange Ratio is fair from
a financial point of view to the holders of Pioneer Common Stock.
SECTION 4.16 Brokers. No broker, finder or investment banker
is entitled to any brokerage, finder's, investment banking or other fee
or commission in connection with the transactions contemplated by this
Agreement based upon arrangements made by or on behalf of Pioneer or any
of its Subsidiaries.
SECTION 4.17 Tax Matters. Except as set forth on Schedule
4.17 hereto:
(a) All federal tax returns and tax reports required to be filed
by Pioneer or its Subsidiaries on or prior to the Effective Time or with
respect to taxable periods ending on or prior to the Effective Time have
been or will be filed with the appropriate governmental authorities on
or prior to the Effective Time or by the due date thereof including
extensions;
(b) All state and local tax returns and tax reports required to be
filed by Pioneer or its Subsidiaries on or prior to the Effective Time
or with respect to taxable periods ending on or prior to the Effective
Time which relate to income, profits, franchise, property, sales, use or
other taxes, have been or will be filed with the appropriate governmental
authorities on or prior to the Effective Time or by the due date thereof
including extensions;
(c) The tax returns and tax reports referred to in subparts (a) and
(b) of this Section 4.17 correctly reflect (and as to returns not filed
as of the date hereof, will correctly reflect) all material tax
liabilities of Pioneer and its Subsidiaries required to be shown thereon;
(d) All federal, state and local and foreign income, profits,
franchise, property, sales, use and other taxes (including interest and
penalties) shown as due on those tax returns and tax reports referred to
in subparts (a) and (b) of this Section 4.17 which have been or will be
filed by the Effective Time, whether or not such amounts are referred to
or shown on any tax returns or tax reports referred to in Section 4.17
(a) or (b) hereof, have been or will be fully paid or adequately
reflected as a liability on Pioneer's or its Subsidiaries' books and
records on or prior to the Closing Date;
(e) With respect to any period for which tax returns and tax
reports have not yet been filed, or for which taxes are not yet due or
owing, Pioneer and its Subsidiaries have made due and sufficient accruals
for such taxes in their respective books and records and financial
statements;
(f) The representations and warranties contained in the Pioneer
Officer's Certificate attached hereto as Schedule 4.17(f) are true and
correct, and will be correct as of the Effective Time; and
(g) Pioneer has not taken or agreed to take any action that would
(a) prevent or impede the Merger from qualifying as a tax-free
reorganization under Section 368 of the Code, or (b) make untrue any
representation or warranty contained in the Officer's Certificate
referred to in Section 4.17(f) hereof.
SECTION 4.18 Intellectual Property. To Pioneer's knowledge,
neither Pioneer nor any of its Subsidiaries utilizes or has utilized any
patent, trademark, tradename, service mark, copyright, software, trade
secret or know-how, except for those which are owned, possessed or
lawfully used by Pioneer or its Subsidiaries in their operations, and,
to the knowledge of Pioneer, neither Pioneer nor any of its Subsidiaries
infringes upon or unlawfully or wrongfully uses any patent, trademark,
tradename, service mark, copyright or trade secret owned or validly
claimed by another.
SECTION 4.19 Insurance. Except as set forth on Schedule 4.19
hereto, each of Pioneer and each of its Subsidiaries is, and has been
continuously since the later of January 1, 1985 or the date of
incorporation, insured with financially responsible insurers in such
amounts and against such risks and losses as are customary for companies
conducting the business as conducted by Pioneer and its Subsidiaries
during such time period.
SECTION 4.20 Ownership of Securities. As of the date hereof,
neither Pioneer nor, to Pioneer's knowledge, any of its affiliates or
associates (as such terms are defined under the Exchange Act), (a)(i)
beneficially owns, directly or indirectly, or (ii) is party to any
agreement, arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of, in each case, shares of capital stock
of Mid-Plains, which in the aggregate represent 10% or more of the
outstanding shares of Mid-Plains Common Stock, nor (b) is an "interested
stockholder" of Mid-Plains within the meaning of Section 180.1140(8) of
Wisconsin Law.
SECTION 4.21 Certain Contracts. (a) All contracts described
in Item 601 (b) (10) of Regulation S-K to which Pioneer or its
Subsidiaries is a party or may be bound ("Pioneer 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
Pioneer nor any of its Subsidiaries 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 Pioneer Contract, except for defaults which, individually and in the
aggregate, would not reasonably be expected to result in a Material
Adverse Effect on Pioneer. True and complete copies of all Pioneer
Contracts have been delivered to Mid-Plains or made available for
inspection.
(b) Set forth on Schedule 4.21 hereto is a list of each contract,
agreement or arrangement to which Pioneer or any of its Subsidiaries is
a party or may be bound and (i) under the terms of which any of the
rights or obligations of a party thereto will be modified or altered as
a result of the transactions contemplated hereby in a manner which,
individually or in the aggregate with all such other contracts,
agreements or arrangements would reasonably be expected to result in a
Material Adverse Effect on Pioneer; (ii) is an arrangement limiting or
restraining Mid-Plains, Pioneer, any Mid-Plains or Pioneer Subsidiary or
any successor thereto from engaging or competing in any business which
has, or could reasonably be expected to have in the foreseeable future,
a Material Adverse Effect on Pioneer; or (iii) to Pioneer's knowledge,
is an arrangement limiting or restraining Mid-Plains, Pioneer or any of
their respective Subsidiaries or any successor thereto from engaging or
competing in any business.
SECTION 4.22 Certain Regulatory Matters. (a) Except as
disclosed on Schedule 4.22 hereto and except for billing disputes with
customers arising in the ordinary course of business that in the
aggregate involve immaterial amounts, there are no proceedings or
investigations pending or, to Pioneer's knowledge, threatened, before any
court, administrative, governmental or regulatory body in which any of
the following matters are being considered, nor has Pioneer or any of its
Subsidiaries received written notice or inquiry from any such body,
government official, consumer advocacy or similar organization or any
private party, indicating that any of such matters should be considered
or may become the object of consideration or investigation: (i) reduction
of rates charged to customers; (ii) reduction of earnings; (iii) refunds
of amounts previously charged to customers; or (iv) failure to meet any
expense, infrastructure, service quality or other commitments previously
made to or imposed by any administrative, governmental or regulatory
body.
(b) Except as disclosed on Schedule 4.22 hereto, neither Pioneer
nor any of its Subsidiaries has any outstanding commitments (and no such
obligations have been imposed upon Pioneer and remain outstanding)
regarding (i) reduction of rates charged to customers; (ii) reduction of
earnings; (iii) refunds of amounts previously charged to customers or
(iv) expenses, infrastructure expenditures, service quality or other
regulatory requirements, to or by any court, administrative, governmental
or regulatory body, government official, consumer advocacy or similar
organization.
SECTION 4.23 SFAS 106 Matters. To Pioneer's knowledge, the
accrual by Pioneer at the Effective Time of the portion of its remaining
transition obligation under Statement of Financial Accounting Standards
No. 106 which it is required to accrue at such time will not adversely
affect the ability of Pioneer to declare and pay annual dividends to
Parent after the Effective Time in the same amounts as Pioneer paid to
its Shareholders on an annual basis prior to the Effective Time.
<PAGE>
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF MID-PLAINS
Mid-Plains hereby represents and warrants as of the date hereof to
Pioneer as follows:
SECTION 5.1 Organization and Qualification; Subsidiaries. Each of
Mid-Plains and its Subsidiaries is an entity duly organized, validly
existing and in good standing under the laws of Wisconsin. Each of
Mid-Plains and its Subsidiaries has the requisite power and authority and any
necessary governmental authority, franchise, license or permit to own,
operate or lease the properties that it purports to own, operate or lease
and to carry on its business as it is now being conducted.
SECTION 5.2 Articles of Incorporation or Organization and Bylaws
or Operating Agreement. Mid-Plains has heretofore furnished, or
otherwise made available, to Pioneer a complete and correct copy of the
Articles of Incorporation and the Bylaws or Articles of Organization and
Operating Agreement (collectively, its "Organizational Documents"), each
as amended to the date hereof, of Mid-Plains and each of its
Subsidiaries. Such Organizational Documents are in full force and
effect. Neither Mid-Plains nor any of its Subsidiaries is in violation
of any of the provisions of its respective Organizational Documents in
any material respect.
SECTION 5.3 Capitalization. (a) The authorized capital stock of
Mid-Plains consists of (i) 25,000,000 shares of Mid-Plains Common Stock,
of which, as of December 31, 1995, 1,982,960 shares were issued and
outstanding, no shares were held in the treasury of Mid-Plains and except
as set forth on Schedule 5.3, after the date hereof or, as permitted by
Section 6.2 hereof, (i) since December 31, 1995, no shares of Mid-Plains
Common Stock have been issued, and (ii) there are no outstanding
Mid-Plains Equity Rights. For purposes of this Agreement, Mid-Plains Equity
Rights shall mean subscriptions, options, warrants, calls, commitments,
agreements, conversion rights or other rights of any character
(contingent or otherwise) to purchase or otherwise acquire from Mid-Plains
or any of Mid-Plains' Subsidiaries at any time, or upon the
happening of any stated event, any shares of the capital stock of
Mid-Plains ("Mid-Plains Equity Rights"). Schedule 5.3 hereto sets forth a
complete and accurate list of certain information with respect to all
outstanding Mid-Plains Equity Rights as of December 31, 1995. Since
December 31, 1995, no Mid-Plains Equity Rights have been issued except
as set forth on Schedule 5.3, or, after the date hereof, as permitted by
Section 6.2 hereof.
(b) Except as set forth on Schedule 5.3(b), or, after the date
hereof, as permitted by Section 6.2 hereof, there are no outstanding
obligations of Mid-Plains or any of Mid-Plains' Subsidiaries to
repurchase, redeem or otherwise acquire any shares of capital stock of
Mid-Plains.
(c) All of the issued and outstanding shares of Mid-Plains Common
Stock are validly issued, fully paid and nonassessable.
(d) All the outstanding capital stock or interests of each of
Mid-Plains' Subsidiaries is duly authorized, validly issued, fully paid and
nonassessable, and is owned by Mid-Plains free and clear of any liens,
security interests, pledges, agreements, claims, charges or encumbrances.
Except as set forth on Schedule 5.3, or hereafter issued or entered into
in accordance with Section 6.2 hereof, there are no existing
subscriptions, options, warrants, calls, commitments, agreements,
conversion rights or other rights of any character (contingent or
otherwise) to purchase or otherwise acquire from Mid-Plains or any of
Mid-Plains' Subsidiaries at any time, or upon the happening of any stated
event, any shares of the capital stock or interests of any Mid-Plains'
Subsidiary, whether or not presently issued or outstanding (except for
rights of first refusal to purchase interests in Subsidiaries which are
not wholly-owned by Mid-Plains), and there are no outstanding obligations
of Mid-Plains or any of Mid-Plains' Subsidiaries to repurchase, redeem
or otherwise acquire any shares of capital stock or interests of any of
Mid-Plains' Subsidiaries. Except for (i) its Subsidiaries and Material
Investments, (ii) immaterial amounts of equity securities acquired, in
the capacity of creditor, in bankruptcy proceedings, (iii) equity
interests held by Material Investments and Jointly Held Persons, (iv)
investments of persons in which Mid-Plains has less than a 10% interest
and (v) equity interests disclosed on Schedule 5.3 hereto or hereafter
acquired as permitted under Section 6.2 hereof, Mid-Plains does not
directly or indirectly own any equity interest in any other person.
SECTION 5.4 Authority Relative to this Agreement. Mid-Plains has
the necessary corporate power and authority to enter into this Agreement
and, subject to obtaining any necessary shareholder approval of the
Merger Agreement, the issuance of Mid-Plains Common Stock pursuant to the
Merger Agreement, to carry out its obligations hereunder. The execution
and delivery of this Agreement by Mid-Plains and the consummation by
Mid-Plains of the transactions contemplated hereby have been duly authorized
by all necessary corporate action on the part of Mid-Plains, subject to
the approval of this Agreement by Mid-Plains' Shareholders required by
Wisconsin Law. This Agreement has been duly executed and delivered by
Mid-Plains and, assuming the due authorization, execution and delivery
thereof by the other Parties, constitutes a legal, valid and binding
obligation of Mid-Plains, enforceable against it in accordance with its
terms.
SECTION 5.5 No Conflict; Required Filings and Consents. (a) Except
as listed on Schedule 5.5 hereto or as described in subsection (b) below,
the execution and delivery of this Agreement by Mid-Plains does not, and
the performance of this Agreement by Mid-Plains will not, (i) violate or
conflict with the Restated Articles of Incorporation or Bylaws of
Mid-Plains, (ii) conflict with or violate any law, regulation, court order,
judgment or decree applicable to Mid-Plains or any of its Subsidiaries
or by which any of their respective property is bound or affected, (iii)
violate or conflict with the Organizational Documents of any of
Mid-Plains' Subsidiaries, or (iv) 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 or
cancellation of, or result in the creation of a lien or encumbrance on
any of the properties or assets of Mid-Plains or any of its Subsidiaries
pursuant to, result in the loss of any material benefit under, or require
the consent of any other party to, any contract, instrument, permit,
license or franchise to which Mid-Plains or any of its Subsidiaries is
a party or by which Mid-Plains, any of such Subsidiaries or any of their
respective property is bound or affected, (v) to Mid-Plains' knowledge,
conflict with or violate any law, regulation, court order, judgment or
decree applicable to any of its Material Investments or by which such
Material Investments' property is bound or affected, (vi) to Mid-Plains'
knowledge, violate or conflict with the Organizational Documents of any
of its Material Investments, or (vii) to Mid-Plains' knowledge, 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 or cancellation of, or result in the creation
of a lien or encumbrance on any of the properties or assets of any of its
Material Investments pursuant to, or result in the loss of any material
benefit under, or require the consent of any other party to, any permit,
license or franchise to which any of its Material Investments is a party
or by which any of such Material Investments or any of their respective
property is bound or affected, except, in the case of clauses (ii),
(iii), (iv), (v), (vi) or (vii) above, for conflicts, violations,
breaches, defaults, results or consents which, individually or in the
aggregate, would not have a Material Adverse Effect on Mid-Plains.
(b) Except as listed on Schedule 5.5 and except for applicable
requirements, if any, of regulatory laws and commissions in Wisconsin,
the Federal Communications Commission, the Exchange Act, filing and
recordation of appropriate merger or other documents as required by
Wisconsin Law and any filings required pursuant to Wisconsin state
securities or "blue sky" laws, neither Mid-Plains nor any of its
Subsidiaries is required to submit any notice, report or other filing
with any governmental authority, domestic or foreign, in connection with
the execution, delivery or performance of this Agreement. Except as set
forth in the immediately preceding sentence, no waiver, consent, approval
or authorization of any governmental or regulatory authority is required
to be obtained by Mid-Plains or any of its Subsidiaries in connection
with its execution, delivery or performance of this Agreement.
SECTION 5.6 SEC Filings; Financial Statements. (a) Mid-Plains has
filed all forms, reports and documents required to be filed with the SEC
since January 1, 1993, and has heretofore delivered or made available to
Pioneer, in the form filed with the SEC, together with any amendments
thereto, its (i) Annual Reports on Form 10-K for the fiscal years ended
December 31, 1993, 1994 and 1995, (ii) all proxy statements relating to
Mid-Plains' meetings of Shareholders (whether annual or special) held
since January 1, 1993, (iii) Quarterly Reports on Form 10-Q for the
fiscal quarters ended March 31, June 30, and September 30, 1995, and (iv)
all other reports or registration statements filed by Mid-Plains with the
SEC since January 1, 1993 (collectively, the "Mid-Plains SEC Reports").
The Mid-Plains SEC Reports (i) were prepared substantially in accordance
with the requirements of the Exchange Act, and the rules and regulations
promulgated under the Exchange 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 in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(b) The financial statements, including all related notes and
schedules, contained in the Mid-Plains SEC Reports (or incorporated by
reference therein) fairly present the consolidated financial position of
Mid-Plains and its Subsidiaries as at the respective dates thereof and
the consolidated results of operations and cash flows of Mid-Plains and
its Subsidiaries for the periods indicated in accordance with GAAP
applied on a consistent basis throughout the periods involved (except for
changes in accounting principles disclosed in the notes thereto) and
subject in the case of interim financial statements to normal year-end
adjustments, except that Mid-Plains has taken a $1.8 million one-time
extraordinary charge as a result of Mid-Plains going off of FAS 71.
SECTION 5.7 Absence of Certain Changes or Events. Except as
disclosed in the Mid-Plains SEC Reports filed prior to the date hereof
and on Schedule 5.7, since December 31, 1995, Mid-Plains and its
Subsidiaries have not incurred any material liability, except in the
ordinary course of their businesses consistent with their past practices,
and there has not been any change, or any event involving a prospective
change, in the business, financial condition or results of operations of
Mid-Plains or any of its Subsidiaries which has had, or is reasonably
likely to have, a Material Adverse Effect on Mid-Plains, and Mid-Plains
and its Subsidiaries have conducted their respective businesses in the
ordinary course consistent with their past practices.
SECTION 5.8 Litigation. Except as listed on Schedule 5.8, there
are no claims, actions, suits, proceedings or investigations pending or,
to Mid-Plains' knowledge, threatened against Mid-Plains or any of its
Subsidiaries, or any properties or rights of Mid-Plains or any of its
Subsidiaries, before any court, administrative, governmental, arbitral,
mediation or regulatory authority or body, as to which there is more than
a remote possibility of an adverse judgment or determination against
Mid-Plains or any of its Subsidiaries or any properties or rights of
Mid-Plains or any of its Subsidiaries except (a) as disclosed on Schedule
5.8 hereto, (b) as disclosed on Schedules 5.9, 5.12, 5.13 or 5.22 hereto,
and (c) cases in which neither Mid-Plains nor any of its Subsidiaries is a
named defendant. With respect to tax matters, litigation shall not be
deemed threatened unless a tax authority has delivered a written notice
of deficiency to Mid-Plains or any of its Subsidiaries.
SECTION 5.9 No Violation of Law. The business of Mid-Plains and
its Subsidiaries is not being conducted in violation of any Legal
Requirements or in violation of any Permits, except for possible
violations none of which, individually or in the aggregate, may
reasonably be expected to have a Material Adverse Effect on Mid-Plains.
Except as disclosed in Mid-Plains SEC Reports and as set forth on
Schedule 5.9 hereto, no investigation or review by any governmental or
regulatory entity (including any self-regulatory body) with respect to
Mid-Plains or its Subsidiaries in relation to any alleged violation of
law or regulation is pending or, to Mid-Plains's knowledge, threatened,
nor has any governmental or regulatory entity (including any
self-regulatory body) indicated an intention to conduct the same, except
for such investigations which, if they resulted in adverse findings,
would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect on Mid-Plains. Except as set forth
on Schedule 5.9 hereto, neither Mid-Plains nor any of its Subsidiaries
is subject to any cease and desist or other order, judgment, injunction
or decree issued by, or is a party to any written agreement, consent
agreement or memorandum of understanding with, or is a party to any
commitment letter or similar undertaking to, or is subject to any order
or directive by, or has adopted any board resolutions at the request of,
any court, governmental entity or regulatory agency that materially
restricts the conduct of its business or which may reasonably be expected
to have a Material Adverse Effect on Mid-Plains, nor has Mid-Plains or
any of its Subsidiaries been advised that any court, governmental entity
or regulatory agency is considering issuing or requesting any of the
foregoing. None of the representations and warranties made in this
Section 5.9 are being made with respect to Environmental Laws.
SECTION 5.10 Joint Proxy Statement. None of the information
supplied or to be supplied by or on behalf of Mid-Plains for inclusion
or incorporation by reference in the Registration Statement will, at the
time the Registration Statement becomes effective under the 1933 Act,
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading. None of the information supplied or to be supplied
by or on behalf of Mid-Plains for inclusion or incorporation by reference
in the Joint Proxy Statement will, at the dates mailed to Shareholders
and at the times of the Pioneer Shareholders' meeting and the Mid-Plains
Shareholders' meeting, contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading. The
Registration Statement and the Joint Proxy Statement (except for
information relating solely to Pioneer) will comply as to form in all
material respects with the provisions of the 1933 Act and the Exchange
Act and the rules and regulations promulgated thereunder.
SECTION 5.11 Employee Matters; ERISA. (a) Set forth on
Schedule 5.11 hereto is a true and complete list of all employee benefit
plans covering present and former employees or directors of Mid-Plains
and of each of its Subsidiaries or their beneficiaries, or providing
benefits to such persons in respect of services provided to any such
entity, including, but not limited to, any employee benefit plans within
the meaning of Section 3(3) of ERISA, any deferred compensation bonuses,
stock options, restricted stock plans, incentive compensation, severance
or change in control agreements and any other material benefit
arrangements or payroll practices (collectively, the "Mid-Plains Benefit
Plans").
(b) All contributions and other payments required to be made by
Mid-Plains or any of its Subsidiaries to or under any Mid-Plains Benefit
Plan (or to any person pursuant to the terms thereof) have been made or
the amount of such payment or contribution obligation has been reflected
in the Mid-Plains Financial Statements.
(c) Each of the Mid-Plains Benefit Plans intended to be "qualified"
within the meaning of Section 401 (a) of the Code has been determined by
the IRS to be so qualified, and, to Mid-Plains' knowledge, no
circumstances exist that could reasonably be expected by Mid-Plains to
result in the revocation of any such determination. Mid-Plains is in
compliance in all material respects with, and each of the Mid-Plains
Benefit Plans is and has been operated in all material respects in
compliance with, all applicable Legal Requirements governing such plan,
including, without limitation, ERISA and the Code. Each Mid-Plains
Benefit Plan intended to provide for the deferral of income or the
reduction of salary or other compensation, or to afford other income tax
benefits, complies in all material respects with the requirements of the
applicable provisions of the Code and other Legal Requirements to the
extent required to provide such income tax benefits.
(d) With respect to the Mid-Plains Benefit Plans, individually and
in the aggregate, no event has occurred and, to Mid-Plains' knowledge,
there does not now exist any condition or set of circumstances, that
could subject Mid-Plains or any of its Subsidiaries to any material
liability arising under the Code, ERISA or any other applicable Legal
Requirements (including, without limitation, any liability to any such
plan or the PBGC), or under any indemnity agreement to which Mid-Plains
or any of its Subsidiaries is a party, excluding liability for benefit
claims and funding obligations payable in the ordinary course.
(e) Except as set forth on Schedule 5.11 hereto, none of the Mid-Plains
Benefit Plans that are "welfare plans" within the meaning of
Section 3 (1) of ERISA provides for any retiree benefits other than
continuation coverage required to be provided under Section 4980B of the
Code or Part 6 of Title I of ERISA.
(f) Except as set forth on Schedule 5.11 hereto, (i) the
consummation or announcement of any transaction contemplated by this
Agreement will not (either alone or upon the occurrence of any additional
or further acts or events) result in any (A) payment (whether of
severance pay or otherwise) becoming due from Mid-Plains or any of its
Subsidiaries to any officer, employee, former employee or director
thereof or to the trustee under any "rabbi trust" or similar arrangement,
or (B) benefit under any Mid-Plains Benefit Plan being established or
becoming accelerated, vested or payable and (ii) neither Mid-Plains nor
any of its Subsidiaries is a party to (A) any management, employment,
deferred compensation, severance plan (including any payment, right or
benefit resulting from a change in control), bonus or other contract for
personal services with any current or former officer, director or
employee (whether or not characterized as a plan for purposes of ERISA),
(B) any consulting contract with any person who prior to entering into
such contract was a director or officer of Mid-Plains or any of its
Subsidiaries, or (C) any plan, agreement, arrangement or understanding
similar to any of the items described in clause (ii) (A) or (B) of this
sentence.
(g) The consummation or announcement of any transaction
contemplated by this Agreement will not (either alone or upon the
occurrence of any additional or further acts or events) result in the
disqualification of any of the Mid-Plains Benefit Plans intended to be
qualified under, result in a prohibited transaction or breach of
fiduciary duty under, or otherwise violate, ERISA or the Code.
(h) Neither Mid-Plains nor any of its Subsidiaries nor any of their
directors, officers, employees or agents, nor any "party in interest" or
"disqualified person", as such terms are defined in Section 3 of ERISA
and Section 4975 of the Code has, with respect to any Mid-Plains Benefit
Plan, engaged in or been a party to any "prohibited transaction", as such
term is defined in Section 4975 of the Code or Section 406 of ERISA,
which is not otherwise exempt, which could result in the imposition of
either a penalty assessed pursuant to Section 502 (i) of ERISA or a tax
imposed by Section 4975 of the Code or which could constitute a breach
of fiduciary duty, in each case applicable to Mid-Plains or any Mid-Plains
Benefit Plan and which would result in a Material Adverse Effect
on Mid-Plains.
(i) No Mid-Plains Benefit Plan subject to Section 412 of the Code
has incurred any now existing "accumulated funding deficiency" (as
defined in ERISA), whether or not waived. Neither Mid-Plains nor any of
its Subsidiaries has incurred, and none of such entities reasonably
expects to incur, any material liability to the PBGC with respect to any
Mid-Plains Benefit Plan. Neither Mid-Plains nor any of its Subsidiaries
is a party to, and neither has incurred or reasonably expects to incur,
any withdrawal liability with respect to, any "multiemployer plan" (as
defined in Section 3(37) of ERISA) for which there is any outstanding
liability.
SECTION 5.12 Labor Matters. Except as disclosed on Schedule
5.12 hereto, neither Mid-Plains nor any of its Subsidiaries is party to
any collective bargaining agreement or other labor agreement with any
union or labor organization and no union or labor organization has been
recognized by Mid-Plains or any of its Subsidiaries as an exclusive
bargaining representative for employees of Mid-Plains or any of its
Subsidiaries. Except as disclosed on Schedule 5.12 hereto, to Mid-Plains'
knowledge, there is no current union representation question
involving employees of Mid-Plains or any of its Subsidiaries, nor does
Mid-Plains have knowledge of any significant activity or proceeding of
any labor organization (or representative thereof) or employee group to
organize any such employees.
SECTION 5.13 Environmental Matters. Except as set forth on
Schedule 5.13 hereto or in the Mid-Plains SEC Reports filed prior to the
date hereof:
(a) To Mid-Plains' knowledge, Mid-Plains and each of the Mid-Plains
Subsidiaries is in compliance with all applicable Environmental Laws and
neither Mid-Plains nor any of its Subsidiaries has received any written
or oral communication from any person or governmental authority that
alleges that Mid-Plains or any of its Subsidiaries is not in compliance
with applicable Environmental Laws where such non-compliance could
reasonably be expected to result in a Material Adverse Effect on Mid-Plains.
(b) To Mid-Plains' knowledge, Mid-Plains and each of its
Subsidiaries has obtained or has applied for all material Environmental
Permits necessary for the construction of their facilities or the conduct
of their operations, and all such material Environmental Permits are
effective or, where applicable, a renewal application has been timely
filed and is pending agency approval, and Mid-Plains and its Subsidiaries
are in material compliance with all terms and conditions of such
Environmental Permits. To Mid-Plains' knowledge, there are no past or
present events, conditions, circumstances, activities, practices,
incidents, actions or plans that may interfere with, or prevent, future
continued material compliance on the part of Mid Plains or any of its
Subsidiaries with such Environmental Permits.
(c) To Mid-Plains' knowledge, there is no currently existing
requirement to be imposed in the future by any Environmental Law or
Environmental Permit which could reasonably be expected to result in the
incurrence of a material cost by Pioneer or any of its Subsidiaries.
(d) To Mid-Plains' knowledge, there is no material Environmental
Claim pending or threatened (i) against Mid-Plains or any of its
Subsidiaries, (ii) against any person whose liability for any
Environmental Claim Mid-Plains or any of its Subsidiaries has or may have
retained or assumed either contractually or by operation of law, or (iii)
against any real or personal property or operations which Mid-Plains or
any of its Subsidiaries owns, leases or manages, in whole or in part.
(e) To Mid-Plains' knowledge, there have been no Releases of any
Hazardous Material that would be reasonably likely to form the basis of
any material Environmental Claim against Mid-Plains or any of its
Subsidiaries, or against any person whose liability for any material
Environmental Claim Mid-Plains or any of its Subsidiaries has or may have
retained or assumed either contractually or by operation of law.
(f) To Mid-Plains' knowledge, with respect to any predecessor of
Mid-Plains or any of its Subsidiaries, there is no material Environmental
Claim pending or threatened, or any Release of Hazardous Materials that
would be reasonably likely to form the basis of any material
Environmental Claim against Mid-Plains or any of its Subsidiaries.
(g) To Mid-Plains' knowledge, Mid-Plains has disclosed to Pioneer
all material facts which Mid-Plains reasonably believes form the basis
of a material current or future cost relating to any environmental matter
affecting Mid-Plains and its Subsidiaries which Mid-Plains believes will
or is reasonably likely to result in a Material Adverse Effect on Mid-Plains.
(h) To Mid-Plains' knowledge, neither Mid-Plains nor any of its
Subsidiaries, nor any owner of premises leased or operated by Mid-Plains
or any of its Subsidiaries has filed any notice with respect to such
premises under federal, state or local law indicating past or present
treatment, storage or disposal of Hazardous Materials, as regulated under
40 C.F.R. Parts 264-267 or any state, or local equivalent or is engaging
or has engaged in business operations involving the generation,
transportation, treatment, recycle or disposal of any waste (excluding
low level radioactive tubes from central office equipment or typical
smoke and fire alarm components) regulated under Environmental Laws
pertaining to radioactive materials or the nuclear power industry.
(i) To Mid-Plains' knowledge, none of the properties owned, leased
or operated by Mid-Plains, its Subsidiaries or any predecessor thereof
are now, or were in the past, listed on the NPL, CERCLIS or any other
comparable state or local environmental database (excluding easements
that transgress such Superfund Sites listed on the NPL or CERCLIS sites).
(j) To Mid-Plains' knowledge, the Merger will not require any
governmental approvals under the Environmental Laws, including those that
are triggered by sales or transfers of businesses or real property.
SECTION 5.14 Board Action; Vote Required. (a) The Board of
Directors of Mid-Plains has unanimously determined that the transactions
contemplated by this Agreement are in the best interests of Mid-Plains
and its Shareholders and has resolved to recommend to such Shareholders
that they vote in favor thereof.
(b) The approval of this Agreement by a majority of the votes cast
thereon, provided that the total votes cast thereon represents over 50%
in interest of all securities of Mid-Plains entitled to vote thereon, is
the only vote of the holders of any class or series of the capital stock
of Mid-Plains required to approve this Agreement, the Merger, and the
other transactions contemplated hereby.
SECTION 5.15 Opinion of Financial Advisor. Mid-Plains shall
receive the opinion of Edelman & Co., Ltd. to the effect that, as of the
date hereof, the Exchange Ratio is fair from a financial point of view
to the holders of Mid-Plains Common Stock.
SECTION 5.16 Brokers. Except for Edelman & Co., Ltd., the
arrangements with which have been disclosed to Pioneer prior to the date
hereof, who has been engaged by Mid-Plains, no broker, finder or
investment banker is entitled to any brokerage, finder's, investment
banking or other fee or commission in connection with the transactions
contemplated by this Agreement based upon arrangements made by or on
behalf of Mid-Plains or any of its Subsidiaries.
SECTION 5.17 Tax Matters. Except as set forth on Schedule
5.17 hereto:
(a) All material federal and foreign tax returns and tax reports
required to be filed by Mid-Plains or its Subsidiaries on or prior to the
Effective Time or with respect to taxable periods ending on or prior to
the Effective Time have been or will be filed with the appropriate
governmental authorities on or prior to the Effective Time or by the due
date thereof including extensions;
(b) All material state and local tax returns and tax reports
required to be filed by Mid-Plains or its Subsidiaries on or prior to the
Effective Time or with respect to taxable periods ending on or prior to
the Effective Time which relate to income, profits, franchise, property,
sales, use or other taxes, have been or will be filed with the
appropriate governmental authorities on or prior to the Effective Time
or by the due date thereof including extensions;
(c) The tax returns and tax reports referred to in subparts (a) and
(b) of this Section 5.17 correctly reflect (and as to returns not filed
as of the date hereof, will correctly reflect) all material tax
liabilities of Mid-Plains and its Subsidiaries required to be shown
thereon;
(d) All material federal, state, and local income, profits,
franchise, property, sales, use and other taxes (including interest and
penalties) shown as due on those tax returns and tax reports referred to
in subparts (a) and (b) of this Section 5.17 which have been or will be
filed by the Effective Time, as well as any material foreign withholding
taxes imposed on or in respect of any amounts paid to or by Mid-Plains
or any of its Subsidiaries, whether or not such amounts or withholding
taxes are referred to or shown on any tax returns or tax reports referred
to in Section 5.17(a) or (b) hereof, have been or will be fully paid or
adequately reflected as a liability on Mid-Plains' or its Subsidiaries'
books and records on or prior to the Closing Date;
(e) With respect to any period for which tax returns and tax
reports have not yet been filed, or for which taxes are not yet due or
owing, Mid-Plains and its Subsidiaries have made due and sufficient
accruals for such taxes in their respective books and records and
financial statements;
(f) The representations and warranties contained in the Mid-Plains
Officer's Certificate attached hereto as Schedule 5.17(f) are true and
correct; and
(g) Mid-Plains has not taken or agreed to take any action that
would (a) prevent or impede the Merger from qualifying as a tax-free
reorganization under Section 368 of the Code, or (b) make untrue any
representation or warranty contained in the Officer's Certificate
referred to in Section 5.17(f) hereof.
SECTION 5.18 Intellectual Property. To Mid-Plains' knowledge,
neither Mid-Plains nor any of its Subsidiaries utilizes or has utilized
any patent, trademark, tradename, service mark, copyright, software,
trade secret or know-how, except for those which are owned, possessed or
lawfully used by Mid-Plains or its Subsidiaries in their operations, and,
to the knowledge of Mid-Plains, neither Mid-Plains nor any of its
Subsidiaries infringes upon or unlawfully or wrongfully uses any patent,
trademark, tradename, service mark, copyright or trade secret owned or
validly claimed by another.
SECTION 5.19 Insurance. Except as set forth on Schedule 5.19
hereto, Mid-Plains and each of its Subsidiaries is, and has been
continuously since January 1, 1985 (or such later date as such Subsidiary
was organized or acquired by Mid-Plains), insured with financially
responsible insurers in such amounts and against such risks and losses
as are customary for companies conducting the business as conducted by
Mid-Plains and its Subsidiaries during such time period. Except as set
forth on such Schedule 5.19, since January 1, 1993, neither Mid-Plains
nor any of its Subsidiaries has received notice of cancellation or
termination with respect to any material insurance policy of Mid-Plains
or its Subsidiaries. The insurance policies of Mid-Plains and its
Subsidiaries are valid and enforceable policies.
SECTION 5.20 Ownership of Securities. As of the date hereof,
neither Mid-Plains nor, to Mid-Plains' knowledge, any of its affiliates
or associates (as such terms are defined under the Exchange Act), (a)(i)
beneficially owns, directly or indirectly, or (ii) is party to any
agreement, arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of, in each case, shares of capital stock
of Pioneer, which in the aggregate represent 10% or more of the
outstanding shares of Pioneer Common Stock, nor (b) is an "interested
stockholder" of Pioneer within the meaning of Section 180.1140(8) of the
Wisconsin Law.
SECTION 5.21 Certain Contracts. All contracts described in
Item 601 (b) (10) of Regulation S-K to which Mid-Plains or its
Subsidiaries is a party or may be bound ("Mid-Plains Contracts") have
been filed as exhibits to, or incorporated by reference in, Mid-Plains'
Annual Report on Form 10-K for the year ended December 31, 1995. All
Mid-Plains 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 Mid-Plains nor any of its Subsidiaries 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 Mid-Plains Contract, except for
defaults which, individually and in the aggregate, would not reasonably
be expected to result in a Material Adverse Effect on Mid-Plains. True
and complete copies of all Mid-Plains Contracts have been delivered to
Pioneer or made available for inspection.
SECTION 5.22 Certain Regulatory Matters. (a) Except as
disclosed on Schedule 5.22 hereto and except for billing disputes with
customers arising in the ordinary course of business that in the
aggregate involve immaterial amounts, there are no proceedings or
investigations pending or, to Mid-Plains' knowledge, threatened, before
any court, administrative, governmental or regulatory body in which any
of the following matters are being considered, nor has Mid-Plains or any
of its Subsidiaries received written notice or inquiry from any such
body, government official, consumer advocacy or similar organization or
any private party, indicating that any of such matters should be
considered or may become the object of consideration or investigation:
(i) reduction of rates charged to customers; (ii) reduction of earnings;
(iii) refunds of amounts previously charged to customers; or (iv) failure
to meet any expense, infrastructure, service quality or other commitments
previously made to or imposed by any administrative, governmental or
regulatory body.
(b) Except as disclosed on Schedule 5.22 hereto, neither Mid-Plains
nor any of its Subsidiaries has any outstanding commitments (and no such
obligations have been imposed upon Mid-Plains and remain outstanding)
regarding (i) reduction of rates charged to customers; (ii) reduction of
earnings; (iii) refunds of amounts previously charged to customers or
(iv) expenses, infrastructure expenditures, service quality or other
regulatory requirements to or by any court, administrative, governmental
or regulatory body, government official, consumer advocacy or similar
organization.
SECTION 5.23 SFAS 106 Matters. To Mid-Plains' knowledge, the
accrual by Mid-Plains at the Effective Time of the portion of its
remaining transition obligation under Statement of Financial Accounting
Standards No. 106 which it is required to accrue at such time will not
adversely affect the ability of Mid-Plains to declare and pay annual
dividends to Parent after the Effective Time in the same amounts as
Mid-Plains paid to its Shareholders on an annual basis prior to the
Effective Time.
<PAGE>
ARTICLE VI
CONDUCT OF INDEPENDENT
BUSINESSES PENDING THE MERGER
SECTION 6.1 Transition Planning. Dean W. Voeks and Douglas J.
Timmerman, as President of Mid-Plains and Pioneer, respectively, jointly
shall be responsible for coordinating all aspects of transition planning
and implementation relating to the Merger and the other transactions
contemplated hereby. If either such person ceases to be President of his
respective company for any reason, such person's successor as President
shall assume his predecessor's responsibilities under this Section 6.1.
During the period between the date hereof and the Effective Time, Messrs.
Voeks and Timmerman jointly shall (i) examine various alternatives
regarding the manner in which to best organize and manage the businesses
of Parent, Mid-Plains and Pioneer after the Effective Time, and (ii)
coordinate policies and strategies with respect to regulatory authorities
and bodies, in all cases subject to applicable law.
SECTION 6.2 Conduct of Business in the Ordinary Course. Each of
Pioneer and Mid-Plains covenants and agrees that, subject to the
provisions of Section 7.11 hereof, between the date hereof and the
Effective Time, unless the other shall otherwise consent in writing, and
except as described on Schedule 6.2 hereto or as otherwise expressly
contemplated hereby, the business of such Party and its Subsidiaries
shall be conducted only in, and such entities shall not take any action
except in, the ordinary course of business and in a manner consistent
with past practice; and each of Pioneer and Mid-Plains and their
respective Subsidiaries will use their commercially reasonable efforts
to preserve substantially intact their business organizations, to keep
available the services of those of their present officers, employees and
consultants who are integral to the operation of their businesses as
presently conducted and to preserve their present relationships with
significant customers and suppliers and with other persons with whom they
have significant business relations. By way of amplification and not
limitation, except as set forth on Schedule 6.2 hereto or as otherwise
expressly contemplated by this Agreement, each of Pioneer and Mid-Plains
agrees on behalf of itself and its Subsidiaries that they will not,
between the date hereof and the Effective Time, directly or indirectly,
do any of the following without the prior written consent of the other:
(a) (i) except for grants of rights to acquire common stock given
to employees of Mid-Plains and its Subsidiaries under the Mid-Plains
Stock Purchase Plan, which shall not exceed the amounts set forth on
Schedule 5.11 hereto: issue, sell, pledge, dispose of, encumber,
authorize, or propose the issuance, sale, pledge, disposition,
encumbrance or authorization of any shares of capital stock, or any
options, warrants, convertible securities or other rights of any kind to
acquire any shares of capital stock of, or any other ownership interest
in, such Party or any of its Subsidiaries; (ii) amend or propose to amend
the Organizational Documents of such Party or any of its Subsidiaries or
adopt, amend or propose to amend any shareholder rights plan or related
rights agreement; (iii) split, combine or reclassify any outstanding
shares of Pioneer Common Stock or Mid-Plains Common Stock, or declare,
set aside or pay any dividend or distribution payable in cash, stock,
property or otherwise with respect to shares of Pioneer Common Stock or
Mid-Plains Common Stock; (iv) redeem, purchase or otherwise acquire or
offer to redeem, purchase or otherwise acquire any shares of its capital
stock; or (v) authorize or propose or enter into any contract, agreement,
commitment or arrangement with respect to any of the matters prohibited
by this Section 6.2(a);
(b) (i) acquire (by merger, consolidation, or acquisition of stock
or assets) any corporation, partnership or other business organization
or division thereof or make any investment in another entity other than
an entity which is a wholly owned Subsidiary of such Party as of the date
hereof; (ii) except in the ordinary course of business and in a manner
consistent with past practice, sell, pledge, dispose of, or encumber or
authorize or propose the sale, pledge, disposition or encumbrance of any
assets of such Party or any of its Subsidiaries; (iii) authorize or make
capital expenditures which are in excess of the amounts shown in Schedule
6.2 hereto; (iv) enter into any agreement, contract or commitment which
involves an amount in excess of $50,000 individually for Pioneer or
$200,000 individually for Mid-Plains, or as part of a series of related
transactions, except for agreements, contracts and commitments entered
into (A) in the ordinary course of business of operating the wireline,
directory publishing or cellular business of Pioneer or Mid-Plains, as
the case may be, or (B) in accordance with the then current business plan
for any of the other existing businesses of Pioneer or Mid-Plains, as the
case may be; or (v) authorize, enter into or amend any contract,
agreement, commitment or arrangement with respect to any of the matters
prohibited by this Section 6.2(b);
(c) take any action with respect to the grant of any severance or
termination pay, or stay, bonus, or other incentive arrangements
(otherwise than pursuant to Benefit Plans and policies of such Party in
effect on the date hereof) or with respect to any increase in benefits
payable under its severance or termination pay policies, or stay, bonus
or other incentive arrangements in effect on the date hereof.
(d) make any payments (except in the ordinary course of business
and in amounts and in a manner consistent with past practice or as
otherwise required by Legal Requirements or the provisions of any Pioneer
Benefit Plan or Mid-Plains Benefit Plan, as the case may be) under any
Pioneer Benefit Plan or any Mid-Plains Benefit Plan, as the case may be,
to any director or employee of, or independent contractor or consultant
to, such Party or any of its Subsidiaries, adopt or otherwise materially
amend (except for amendments required or made advisable by Legal
Requirements) any Pioneer Benefit Plan or Mid-Plains Benefit Plan, as the
case may be, or enter into or amend any employment or consulting
agreement of the type which would be required to be disclosed hereunder
pursuant to Section 4.11 hereof with respect to Pioneer or Section 5.11
hereof with respect to Mid-Plains, or grant or establish any new awards
under any such existing Pioneer Benefit Plan or Mid-Plains Benefit Plan
or agreement (except in the ordinary course of business and in amounts
and in a manner consistent with past practice);
(e) change in any material respect its accounting policies, methods
or procedures except as required by GAAP;
(f) do any act or omit to do any act which would cause a breach of
any contract, commitment or obligation if the result would, individually
or in the aggregate, have a Material Adverse Effect;
(g) take any action which could reasonably be expected to adversely
affect or delay the ability of any of the Parties to obtain any approval
of any governmental or regulatory body required to consummate the
transactions contemplated hereby;
(h) take any action that would (i) prevent or impede the Merger
from qualifying as a tax-free reorganization under Section 368 of the
Code; (ii) make untrue any representation or warranty contained, in the
case of Pioneer and its Subsidiaries, in the Officer's Certificate set
forth on Schedule 4.17(f) and, in the case of Mid-Plains and its
Subsidiaries, in the Officer's Certificate set forth on Schedule 5.17(f);
or (iii) prevent or impede the Merger from qualifying as a pooling of
interests for accounting purposes;
(i) take any action other than in the ordinary course of business
and in a manner consistent with past practice with respect to increases
in employee compensation;
(j) take any action which would cause its representations and
warranties contained herein to become inaccurate in any material respect.
Pioneer and Mid-Plains agree that any written approval obtained
under this Section 6.2 may be relied upon by the other Party if signed
by the President or any other executive officer of the Party providing
such written approval.
SECTION 6.3 No Solicitation. From and after the date hereof,
Pioneer, without the prior written consent of Mid-Plains, will not, and
will not authorize or permit any of its Party Representatives (as defined
in Section 7.5 hereof) to, directly or indirectly, solicit, initiate or
encourage (including by way of furnishing information) or take any other
action to facilitate knowingly any inquiries or the making of any
proposal which constitutes or may reasonably be expected to lead to an
Acquisition Proposal (as defined below) from any person, or engage in any
discussion or negotiations relating thereto or accept any Acquisition
Proposal; as used herein, "Acquisition Proposal" shall mean a proposal
or offer for a tender or exchange offer, merger, consolidation or other
business combination involving Pioneer, or any Subsidiary of Pioneer or
any proposal to acquire in any manner a substantial equity interest in,
or all or substantially all of the assets of or any Subsidiary of
Pioneer.
SECTION 6.4 Subsequent Financial Statements. Prior to the
Effective Time, Pioneer and Mid-Plains will consult with the other prior
to making publicly available its financial results for any period. The
respective audited financial statements and unaudited interim financial
statements of each of Pioneer and Mid-Plains, as the case may be, will
fairly present the financial position of such Party and its Subsidiaries
as at the dates thereof and the results of their operations and cash
flows for the periods then ended in accordance with GAAP applied on a
consistent basis and, subject, in the case of unaudited interim financial
statements, to normal year-end adjustments and any other adjustments
described therein.
SECTION 6.5 Control of Operations. Nothing contained in this
Agreement shall give Mid-Plains, directly or indirectly, the right to
control or direct Pioneer's operations prior to the Effective Time.
Nothing contained in this Agreement shall give Pioneer, directly or
indirectly, the right to control or direct Mid-Plains' operations prior
to the Effective Time. Prior to the Effective Time, each of Mid-Plains
and Pioneer shall exercise, consistent with the terms and conditions of
this Agreement, complete control and supervision over its respective
operations.
<PAGE>
ARTICLE VII
ADDITIONAL AGREEMENTS
SECTION 7.1 Joint Proxy Statement and the Registration Statement.
(a) As promptly as practicable after the execution and delivery of this
Agreement, the Parties shall prepare and file with the SEC, and shall use
all reasonable efforts to have cleared by the SEC, and promptly
thereafter shall mail to the holders of record of shares of Mid-Plains
Common Stock and Pioneer Common Stock, the Joint Proxy Statement,
provided, however, that Pioneer and Mid-Plains shall not mail or
otherwise furnish the Joint Proxy Statement to their respective
Shareholders unless and until they have received notice from the SEC that
the Registration Statement is effective under the 1933 Act.
(b) The Parties will cooperate in the preparation of the Joint
Proxy Statement and the Registration Statement and in having the
Registration Statement declared effective as soon as practicable.
However, Mid-Plains shall be responsible for preparing the Registration
Statement and Joint Proxy Statement.
SECTION 7.2 Pioneer and Mid-Plains Shareholders' Meetings and
Consummation of the Merger. (a) At the earliest reasonably practicable
time following the execution and delivery of this Agreement, each of
Pioneer and Mid-Plains shall promptly take all action necessary in
accordance with Wisconsin Law and its Articles of Incorporation and
Bylaws to convene a Shareholders' Meeting. The shareholder vote or
consent required for approval of this Agreement will be no greater than
that contemplated by Sections 4.14(b) and 5.14(b) hereof. Each of
Pioneer and Mid-Plains shall use all commercially reasonable efforts to
solicit from its respective Shareholders proxies to be voted at its
Shareholders Meeting in favor of this Agreement pursuant to the Joint
Proxy Statement and, subject to the fiduciary duties of its Board of
Directors, each of Pioneer and Mid-Plains shall include in the Joint
Proxy Statement the recommendation of its Board of Directors in favor of
this Agreement and the Merger. Each of the Parties shall take all other
action necessary or, in the opinion of the other Parties, advisable to
promptly and expeditiously secure any vote or consent of Shareholders
required by Wisconsin Law, and such Party's Articles of Incorporation and
Bylaws to effect the Merger.
(b) Upon the terms and subject to the conditions hereof and as soon
as practicable after the conditions set forth in Article VIII hereof have
been fulfilled or waived, each of the Parties shall execute in the manner
required by Wisconsin Law and deliver to and file with the Department of
Financial Institutions of the State of Wisconsin such instruments and
agreements as may be required by Wisconsin Law and the Parties shall take
all such other and further actions as may be required by law to make the
Merger effective. Prior to the filings referred to in this Section
7.2(b), a closing (the "Closing") will be held at the offices of
Mid-Plains (or such other place as the Parties may agree) for the purpose
of confirming all the foregoing. The Closing will take place upon the
fulfillment or waiver of all of the conditions to closing set forth in
Article VIII of this Agreement, or as soon thereafter as practicable (the
date of the Closing being herein referred to as the "Closing Date").
SECTION 7.3 Additional Agreements. Each of the Parties will
comply in all material respects with all applicable laws and with all
applicable rules and regulations of any governmental authority in
connection with its execution, delivery and performance of this Agreement
and the transactions contemplated hereby. Each of the Parties agrees to
use all commercially reasonable efforts to obtain in a timely manner all
necessary waivers, consents and approvals and to effect all necessary
registrations and filings, and to use all commercially reasonable efforts
to take, or cause to be taken, all other actions and to do, or cause to
be done, all other things necessary, proper or advisable to consummate
and make effective as promptly as practicable the transactions
contemplated by this Agreement.
SECTION 7.4 Notification of Certain Matters. Each of Pioneer and
Mid-Plains shall give prompt notice to the other of the following:
(a) the occurrence or nonoccurrence of any event whose occurrence
or nonoccurrence would be likely to cause either (i) any representation
or warranty contained in this Agreement to be untrue or inaccurate in any
material respect at any time from the date hereof to the Effective Time,
or (ii) directly or indirectly, any Material Adverse Effect on such
Party;
(b) any material failure of such Party, or any officer, director,
employee or agent of any thereof, to comply with or satisfy any covenant,
condition or agreement to be complied with or satisfied by it hereunder;
and
(c) any facts relating to such Party which would make it necessary
or advisable to amend the Joint Proxy Statement or the Registration
Statement in order to make the statements therein not misleading or to
comply with applicable law; provided, however, that the delivery of any
notice pursuant to this Section 7.4 shall not limit or otherwise affect
the remedies available hereunder to the Party receiving such notice.
SECTION 7.5 Access to Information. (a) From the date hereof to the
Effective Time, each of Pioneer and Mid-Plains shall, and shall cause its
respective Subsidiaries, and its and their officers, directors,
employees, auditors, counsel and agents to afford the officers,
employees, auditors, counsel and agents of the other Party complete
access at all reasonable times to such Party's and its Subsidiaries'
officers, employees, auditors, counsel agents, properties, offices and
other facilities and to all of their respective books and records, and
shall furnish the other with all financial, operating and other data and
information as such other Party may reasonably request.
(b) Each of Pioneer and Mid-Plains agrees that all information so
received from the other Party shall be deemed received pursuant to the
confidentiality agreement, dated as of June 16, 1996 between Pioneer and
Mid-Plains (the "Confidentiality Agreement") and such Party shall, and
shall cause its Subsidiaries and each of its and their respective
officers, directors, employees, financial advisors and agents ("Party
Representatives"), to comply with the provisions of the Confidentiality
Agreement with respect to such information and the provisions of the
Confidentiality Agreement are hereby incorporated herein by reference
with the same effect as if fully set forth herein.
SECTION 7.6 Public Announcements. Pioneer and Mid-Plains shall use
all reasonable efforts to develop a joint communications plan and each
Party shall use all reasonable efforts to ensure that all press releases
and other public statements with respect to the transactions contemplated
hereby shall be consistent with such joint communications plan or, to the
extent inconsistent therewith, shall have received the prior written
approval of the other.
SECTION 7.7 Cooperation. Upon the terms and subject to the
conditions hereof, each of the Parties agrees to use its commercially
reasonable efforts to take or cause to be taken all actions and to do or
cause to be done all things necessary, proper or advisable to consummate
the transactions contemplated by this Agreement and shall use its
commercially reasonable efforts to obtain all necessary waivers, consents
and approvals, and to effect all necessary filings under the 1933 Act and
the Exchange Act. The Parties shall cooperate in responding to inquiries
from, and making presentations to, regulatory authorities.
SECTION 7.8 Indemnification, Directors' and Officers ' Insurance.
(a) Parent shall cause Mid-Plains and Pioneer to maintain in effect the
current provisions regarding indemnification of officers and directors
contained in the charter and bylaws of Pioneer and Mid-Plains each of
their Subsidiaries and any directors, officers or employees
indemnification agreements of Pioneer and Mid-Plains and their respective
Subsidiaries, (b) Parent shall cause Mid-Plains and Pioneer to maintain
in effect the current policies of directors' and officers' liability
insurance and fiduciary liability insurance maintained by Pioneer and
Mid-Plains, respectively, with respect to claims arising from facts or
events which occurred on or before the Effective Time, and (c) Parent
shall cause Pioneer and Mid-Plains to indemnify the directors and
officers of Pioneer and Mid-Plains, respectively, to the fullest extent
to which Pioneer and Mid-Plains are permitted to indemnify such officers
and directors under Wisconsin Law.
SECTION 7.9 Post-Merger Parent Board of Directors. At the
Effective Time, the total number of persons serving on the Board of
Directors of Parent shall be five (unless otherwise agreed in writing by
Pioneer and Mid-Plains prior to the Effective Time), one of whom shall
be a Pioneer Director and four of whom shall be Mid-Plains Directors.
SECTION 7.10 Blue Sky. Pioneer and Mid-Plains will use their
best efforts to obtain prior to the Effective Time all necessary blue sky
permits and approvals, if any, required to permit the distribution of the
shares of Parent common stock to be issued in accordance with the
provisions of this Agreement.
SECTION 7.11 Pooling of Interests. Each of the Parties will
use its best efforts to cause the transactions contemplated by this
Agreement to be accounted for as a pooling of interests in accordance
with GAAP, and such accounting treatment to be accepted by Mid-Plains'
independent certified public accountants, and by the SEC, and each of the
Parties agrees that it will take no action that would cause such
accounting treatment not to be obtained.
SECTION 7.12 Tax-Free Reorganization. Each of the Parties
will use its best efforts to cause the Merger to qualify as a tax-free
reorganization under Section 368 of the Code.
<PAGE>
ARTICLE VIII
CONDITIONS TO MERGER
SECTION 8.1 Conditions to Obligations of Each Party to Effect the
Merger. The respective obligations of each Party to effect the Merger
shall be subject to the following conditions:
(a) Shareholder Approval. The Merger and this Agreement shall have
been approved and adopted by the requisite vote of the Shareholders of
each of Pioneer and Mid-Plains and the issuance of Mid-Plains Common
Stock pursuant to the Merger shall have been approved by the requisite
vote of the Shareholders of Mid-Plains, in each case in accordance with
Wisconsin Law;
(b) Legality. No federal or state statute, rule, regulation,
executive order, decree or injunction shall have been enacted, entered,
promulgated or enforced by any court or governmental authority which is
in effect and has the effect of (i) making the Merger illegal or
otherwise prohibiting the consummation of the Merger or (ii) creating a
Material Adverse Effect on Pioneer or Mid-Plains, with or without
including its ownership of Pioneer and its Subsidiaries after the Merger;
(c) Regulatory Matters. All authorizations, consents, orders or
approvals of, or declarations or filings with, and all expirations of
waiting periods imposed by, any governmental body, agency or official
(all of the foregoing, "Consents") which are necessary for the
consummation of the transactions contemplated hereby, other than
immaterial Consents the failure to obtain which would have no material
adverse effect on the consummation of the transactions contemplated
hereby and no Material Adverse Effect on Mid-Plains, with or without
including its ownership of Pioneer and its Subsidiaries after the Merger,
or Pioneer, shall have been filed, have occurred or have been obtained
(all such permits, approvals, filings and consents and the lapse of all
such waiting periods being referred to as the "Requisite Regulatory
Approvals") and all such Requisite Regulatory Approvals shall be in full
force and effect, provided, however, that a Requisite Regulatory Approval
shall not be deemed to have been obtained if in connection with the grant
thereof there shall have been an imposition by any state or federal
governmental body, agency or official of any condition, requirement,
restriction or change of regulation, or any other action directly or
indirectly related to such grant taken by such governmental body, which
would reasonably be expected to either (i) have a Material Adverse Effect
on any of (A) Pioneer or (B) Mid-Plains (either with or without including
its ownership of Pioneer and its Subsidiaries after the Merger), or (ii)
prevent the Parties from realizing in all material respects the economic
benefits of the transactions contemplated by this Agreement that such
Parties currently anticipate receiving therefrom;
(d) Registration Statement Effective. The Registration Statement
shall have become effective prior to the mailing by each of Pioneer and
Mid-Plains of the Joint Proxy Statement to its respective Shareholders,
no stop order suspending the effectiveness of the Registration Statement
shall then be in effect, and no proceedings for that purpose shall then
be threatened by the SEC or shall have been initiated by the SEC and not
concluded or withdrawn;
(e) Blue Sky. Wisconsin state securities or blue sky permits or
approvals required to carry out the transactions contemplated hereby
shall have been received;
(f) Pooling. Each of Pioneer and Mid-Plains shall have received
a letter from Kiesling Associates LLP, dated as of the Closing Date, to
the effect that the transactions contemplated hereby will qualify for
pooling of interests accounting treatment;
(g) Consents Under Pioneer Agreements. Pioneer shall have obtained
the consent or approval of any person whose consent or approval shall be
required under any agreement or instrument in order to permit the
consummation of the transactions contemplated hereby except those which
the failure to obtain would not, individually or in the aggregate, have
a Material Adverse Effect on Mid-Plains, with or without including its
ownership of Pioneer and its Subsidiaries after the Merger, or Pioneer;
and
(h) Consents Under Mid-Plains Agreements. Mid-Plains shall have
obtained the consent or approval of any person whose consent or approval
shall be required under any agreement or instrument in order to permit
the consummation of the transactions contemplated hereby except those
which the failure to obtain would not, individually or in the aggregate,
have a Material Adverse Effect on Mid-Plains, with or without including
its ownership of Pioneer and its Subsidiaries after the Merger, or
Pioneer.
(i) Pioneer and Mid-Plains shall have received the opinions
referred to in Sections 4.15 and 5.15 to the effect that, as of the date
hereof, the Exchange Ratio was fair from a financial point of view to the
holders of Mid-Plains Common Stock and Pioneer Common Stock.
(j) The Parties contemplate that the concept of a confederation of
independent telephone companies may be found desirable by other similarly
situated companies. If one or more of such companies expresses an
interest to join the Parties to this Agreement in the formation of a
holding company and provides notice to that effect to Mid-Plains within
ninety (90) days from the date hereof, then proceeding to satisfy the
terms and conditions of this Agreement shall be conditioned upon
acceptance by such third party and the Parties hereto of (1) an agreement
similar in form to this Agreement, and (2) acknowledgement from each of
the parties thereto that the exchange ratios contained in such an
agreement are fair from the financial point of view of the holders of
common stock of such parties.
SECTION 8.2 Additional Conditions to Obligations of Pioneer. The
obligations of Pioneer to effect the Merger are also subject to the
fulfillment of the following conditions:
(a) Representations and Warranties. The representations and
warranties of Mid-Plains contained in this Agreement shall be true and
correct on the date hereof and (except to the extent such representations
and warranties speak as of a date earlier than the date hereof) shall
also be true and correct on and as of the Closing Date, except for
changes permitted under Section 6.2 hereof or otherwise contemplated by
this Agreement, with the same force and effect as if made on and as of
the Closing Date, provided, however, that for purposes of this Section
8.2(a) only, such representations and warranties shall be deemed to be
true and correct unless the failure or failures of such representations
and warranties to be so true and correct (without regard to materiality
qualifiers contained therein), individually or in the aggregate, results
or would reasonably be expected to result in a Material Adverse Effect
on Mid-Plains, either with or without including its ownership of Pioneer
and its Subsidiaries after the Merger;
(b) Agreements, Conditions and Covenants. Mid-Plains shall have
performed or complied in all material respects with all agreements,
conditions and covenants required by this Agreement to be performed or
complied with by them on or before the Effective Time, including by way
of illustration and not limitation, satisfactory completion of its due
diligence on or before January 31, 1997;
(c) Certificates. Pioneer shall have received a certificate of an
executive officer of Mid-Plains to the effect set forth in paragraphs (a)
and (b) above;
(d) Tax Opinion. (i) Pioneer shall have received an opinion of
Axley Brynelson, special counsel to Pioneer for this specific purpose,
dated as of the Closing Date, in form and substance reasonably
satisfactory to Pioneer, substantially to the effect that, on the basis
of the facts, representations and assumptions set forth in such opinion,
the Merger constitutes a tax-free reorganization under Section 368 of the
Code and therefore: (A) no gain or loss will be recognized for federal
income tax purposes by Mid-Plains, Pioneer or the Merger Subsidiaries as
a result of the formation of the Merger Subsidiaries and the Merger; and
(B) no gain or loss will be recognized for federal income tax purposes
by the Shareholders of Pioneer upon their exchange of Pioneer Common
Stock solely for Mid-Plains Common Stock pursuant to the Merger (except
with respect to cash received in lieu of a fractional share interest in
Mid-Plains Common Stock or the payment of any real property transfer or
gains taxes on behalf of the Shareholders of Pioneer). In rendering such
opinion, Axley Brynelson may require and rely upon representations and
covenants including those contained in certificates of officers of
Pioneer and Mid-Plains and others; and
(ii) Mid-Plains shall have received the opinion described in
Section 8.3 (d) (i) hereof, in form and substance reasonably
satisfactory to Pioneer.
(e) Bylaws Amendment, Board of Directors. Mid-Plains shall have
taken all such actions as shall be necessary so that (i) the Bylaws
Amendment shall become effective not later than the Effective Time; and
(ii) at the Effective Time, the composition of Parent's Board shall
comply with Section 7.9 hereof (assuming Pioneer has designated the
Pioneer Director as contemplated by Section 7.9 hereof).
(f) Schedules. Pioneer shall have received all of the schedules
required to be prepared by Mid-Plains hereunder on or before January 15,
1997, and shall have satisfactorily completed its review of such
schedules on or before January 31, 1997.
SECTION 8.3 Additional Conditions to Obligations of Mid-Plains.
The obligations of Mid-Plains to effect the Merger are also subject to
the fulfillment of the following conditions:
(a) Representations and Warranties. The representations and
warranties of Pioneer contained in this Agreement shall be true and
correct on the date hereof and (except to the extent such representations
and warranties speak as of a date earlier than the date hereof) shall
also be true and correct on and as of the Closing Date, except for
changes permitted under Section 6.2 hereof or otherwise contemplated by
this Agreement, with the same force and effect as if made on and as of
the Closing Date, provided, however, that for purposes of this Section
8.3(a) only, such representations and warranties shall be deemed to be
true and correct unless the failure or failures of such representations
and warranties to be so true and correct (without regard to materiality
qualifiers contained therein), individually or in the aggregate, results
or would reasonably be expected to result in a Material Adverse Effect
on Pioneer or Mid-Plains (only after including its ownership of Pioneer
and its Subsidiaries after the Merger);
(b) Agreements, Conditions and Covenants. Pioneer shall have
performed or complied in all material respects with all agreements,
conditions and covenants required by this Agreement to be performed or
complied with by them on or before the Effective Time, including by way
of illustration and not limitation, satisfactory completion of its due
diligence on or before January 31, 1997;
(c) Certificates. Mid-Plains shall have received a certificate of
an executive officer of Pioneer to the effect set forth in paragraphs (a)
and (b) above;
(d) Tax Opinion. (i) Mid-Plains shall have received an opinion of
Axley Brynelson, special counsel to Mid-Plains, dated as of the Effective
Time, in form and substance reasonably satisfactory to Mid-Plains,
substantially to the effect that, on the basis of the facts,
representations and assumptions set forth in such opinion, the Merger
constitutes a tax-free reorganization under Section 368 of the Code and
therefore: (A) no gain or loss will be recognized for federal income tax
purposes by Mid-Plains, Pioneer or the Merger Subsidiaries as a result
of the formation of the Merger Subsidiaries and the Merger; and (B) no
gain or loss will be recognized for federal income tax purposes by the
Shareholders of Mid-Plains as a result of the Merger. In rendering such
opinion, Axley Brynelson may require and rely upon representations and
covenants including those contained in certificates of officers of
Mid-Plains and Pioneer and others; and
(ii) Pioneer shall have received the opinion described in
Section 8.2(d) (i) hereof, in form and substance reasonably satisfactory
to Mid-Plains.
(e) Schedules. Mid-Plains shall have received all of the
schedules required to be prepared by Pioneer hereunder on or before
January 15, 1997, and shall have satisfactorily completed its review of
such schedules on or before January 31, 1997.
<PAGE>
ARTICLE IX
TERMINATION, AMENDMENT AND WAIVER
SECTION 9.1 Termination. This Agreement may be terminated at any
time before the Effective Time, in each case as authorized by the
respective Board of Directors of Pioneer or Mid-Plains:
(a) By mutual written consent of each of Pioneer and Mid-Plains;
(b) By either Pioneer or Mid-Plains if the Merger shall not have
been consummated on or before June 30, 1997 (the "Termination Date");
provided, however, that the right to terminate this Agreement under this
Section 9.1 (b) shall not be available to any Party whose 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; and provided, further, that if on the Termination Date
the conditions to the Closing set forth in Section 8.1(c) shall not have
been fulfilled, but all other conditions to the Closing shall be
fulfilled or shall be capable of being fulfilled, then the Termination
Date shall be extended to December 31, 1997. The Parties agree that any
amendment of this Agreement to extend the Termination Date beyond
December 31, 1997 shall be made without any amendment to or renegotiation
of any other material provisions of this Agreement;
(c) By either Pioneer or Mid-Plains if a court of competent
jurisdiction or governmental, regulatory or administrative agency or
commission shall have issued an order, decree or ruling or taken any
other action (which order, decree or ruling the Parties shall use their
commercially reasonable efforts to lift), in each case permanently
restraining, enjoining or otherwise prohibiting the transactions
contemplated by this Agreement, and such order, decree, ruling or other
action shall have become final and nonappealable;
(d) By either Pioneer or Mid-Plains if the other shall have
breached, or failed to comply with, in any material respect any of its
obligations under this Agreement or any representation or warranty made
by such other Party shall have been incorrect in any material respect
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 30 days after notice thereof and such breaches, failures or
misrepresentations, individually or in the aggregate and without regard
to materiality qualifiers contained therein, results or would reasonably
be expected to result in a Material Adverse Effect on Pioneer or
Mid-Plains, with or without including its ownership of Pioneer and its
Subsidiaries after the Merger;
(e) By either Pioneer or Mid-Plains upon the occurrence of (i) a
Material Adverse Effect or an event which could reasonably be expected
to result in a Material Adverse Effect on Mid-Plains (either with or
without including its ownership of Pioneer and its Subsidiaries after the
Merger), or Pioneer, under Section 8.1 (c) hereof arising from an action
by a state or federal governmental body, agency or official which has
become final and nonappealable, or (ii) any other Material Adverse
Effect, or an event which could reasonably be expected to result in a
Material Adverse Effect on the other (which in the case of Mid-Plains
shall not include its ownership of Pioneer and its Subsidiaries after the
Merger), or, after the Effective Time, Mid-Plains, including its
ownership of Pioneer and its Subsidiaries;
(f) By either Pioneer or Mid-Plains if the Board of Directors of
the other or any committee of the Board of Directors of the other (i)
shall withdraw or modify in any adverse manner its approval or
recommendation of this Agreement or the Merger or, in the case of the
Board of Directors or any committee of the Board of Directors of
Mid-Plains, or the issuance of Mid-Plains Common Stock pursuant to the
Merger Agreement, (ii) shall fail to reaffirm such approval or
recommendation upon such Party's request, (iii) shall approve or recommend
any acquisition of the other or a material portion of its assets or any
tender offer for shares of its capital stock, in each case, other than
by a Party thereof, or (iv) shall resolve to take any of the actions
specified in clause (i) above;
(g) By either Pioneer or Mid-Plains if any of the required
approvals of the Shareholders of Pioneer or of Mid-Plains shall fail to
have been obtained at a duly held Shareholders meeting of either of such
companies, including any adjournments thereof; or
(h) Provided, however, that no termination shall be effective
pursuant to Sections 9.1(f) or (g) under circumstances in which an
Initial Pioneer Termination Fee or an Initial Mid-Plains Termination Fee
is payable by the terminating Party under Section 9.2(b) or (c), as the
case may be, unless concurrently with such termination, such termination
fee is paid in full by the terminating Party in accordance with the
provisions of Sections 9.2(b) or (c), as the case may be.
SECTION 9.2 Effect of Termination. (a) In the event of termination
of this Agreement as provided in Section 9.1 hereof, and subject to the
provisions of Section 10.1 hereof, this Agreement shall forthwith become
void and there shall be no liability on the part of any of the Parties,
except (i) as set forth in this Section 9.2 and in Sections 4.10, 4.16,
5.10, 5.16 and 10.3 hereof, and (ii) nothing herein shall relieve any
Party from liability for any willful breach hereof.
(b) If this Agreement (A) is terminated by Pioneer pursuant to
Section 9.1 (f) hereof or by Pioneer pursuant to Section 9.1(g) hereof
because of the failure to obtain the required approval from the Pioneer
Shareholders or (B) is terminated as a result of Pioneer's material
breach of Section 7.2 hereof which is not cured within 30 days after
notice thereof to Pioneer, Pioneer shall pay to Mid-Plains a termination
fee of equal to 20% of all of Mid-Plains' out of pocket expenses related
to preparing this Agreement and related activities (the "Initial Pioneer
Termination Fee").
(c) If this Agreement (A) is terminated by Mid-Plains pursuant to
Sections 9.1 (f) hereof or Mid-Plains pursuant to Section 9.1 (g) hereof
because of the failure to obtain the required approval from the Mid-Plains
Shareholders, or (B) is terminated as a result of Mid-Plains's
material breach of Section 7.2 hereof which is not cured within 30 days
after notice thereof to Mid-Plains, Mid-Plains shall pay to Pioneer a
termination fee of equal to 80% of all of Pioneer's out of pocket
expenses related to preparing this Agreement and related activities (the
"Initial Mid-Plains Termination Fee").
(d) Each termination fee payable under Sections 9.2(b) and (c)
above shall be payable in cash within ten (10) days of written demand.
(e) Pioneer and Mid-Plains agree that the agreements contained in
Sections 9.2(b) and (c) above are an integral part of the transactions
contemplated by this Agreement and constitute liquidated damages and not
a penalty. If one Party fails to promptly pay to the other any fee due
under such Sections 9.2(b) and (c), the defaulting Party shall pay the
costs and expenses (including legal fees and expenses) in connection with
any action, including the filing of any lawsuit or other legal action,
taken to collect payment, together with interest on the amount of any
unpaid fee at the publicly announced prime rate of Marshall & Ilsley Bank
from the date such fee was required to be paid.
SECTION 9.3 Amendment. This Agreement may be amended by the
Parties pursuant to a writing adopted by action taken by all of the
Parties at any time before the Effective Time; provided, however, that,
after approval of the Merger Agreement by the Shareholders of Pioneer or
Mid-Plains, whichever shall occur first, no amendment may be made which
would (a) alter or change the amount or kinds of consideration to be
received by the holders of Pioneer Shares upon consummation of the
Merger, (b) alter or change any term of the Articles of Incorporation of
Pioneer or the Articles of Incorporation of Mid-Plains, or (c) alter or
change any of the terms and conditions of this Agreement if such
alteration or change would adversely affect the holders of any class or
series of securities of Pioneer or Mid-Plains. This Agreement may not be
amended except by an instrument in writing signed by the Parties.
SECTION 9.4 Waiver. At any time before the Effective Time, any
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 herein or
in any document delivered pursuant hereto and (c) waive compliance with
any of the agreements or conditions contained herein. Any agreement on
the part of a Party to any such extension or waiver shall be valid only
as against such Party and only if set forth in an instrument in writing
signed by such Party.
<PAGE>
ARTICLE X
GENERAL PROVISIONS
SECTION 10.1 Non-Survival of Representations, Warranties and
Agreements. The representations, warranties and agreements in this
Agreement shall terminate at the Effective Time or upon the termination
of this Agreement pursuant to Section 9.1 hereof, as the case may be,
except that (a) the agreements set forth in Article I and Sections 2.3,
2.4, 2.5, and 7.8 hereof shall survive the Effective Time indefinitely,
(b) the agreements and representations set forth in Sections 4.10, 4.16,
5.10, 5.16, 7.5(b), 9.2 and 10.3 hereof shall survive termination
indefinitely and (c) nothing contained herein shall limit any covenant
or agreement of the Parties which by its terms contemplates performance
after the Effective Time.
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 of receipt and shall be
delivered personally or mailed by registered or certified mail (postage
prepaid, return receipt requested), sent by overnight courier or sent by
telecopy, to the Parties at the following addresses or telecopy numbers
(or at such other address or telecopy number for a Party as shall be
specified by like notice):
(a) if to Pioneer:
Pioneer Communications, Inc.
25 West Main Street
Madison, WI 53703
Attention: Douglas J. Timmerman, President
Telecopy No.: (608) 252-8783
(b) if to Mid-Plains:
Mid-Plains, Inc.
1912 Parmenter Street
Post Office Box 620070
Middleton, WI 53562-0070
Attention: Dean W. Voeks, President
Telecopy No.: (608) 836-3227
with a copy to:
Axley Brynelson
2 East Mifflin Street
Post Office Box 1767
Madison, WI 53701-1767
Attention: Daniel T. Hardy, Esq. and
Darold J. Londo, Esq.
Telecopy No.: (608) 257-5444
SECTION 10.3 Expenses. Except as otherwise provided herein,
all costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the Party incurring
such costs and expenses, except that those out of pocket expenses
incurred by either Party in connection with the preparation and printing
of the Joint Proxy Statement and the Registration Statement, as well as
the filing fees related thereto, shall be paid one-third by Pioneer and
two-thirds by Mid-Plains.
SECTION 10.4 Certain Definitions. For purposes of this
Agreement, the following terms shall have the following meanings:
(a) "1933 Act" means the Securities Act of 1933, as the same may
be amended from time to time, and "Exchange Act" means the Securities
Exchange Act of 1934, as the same may be amended from time to time.
(b) "affiliate" of a person means a person that directly or
indirectly, through one or more intermediaries, controls, is controlled
by, or is under common control with, the first mentioned person.
(c) "control" (including the terms "controlled by" and "under
common control with") means the possession, direct or indirect, of the
power to direct or cause the direction of the management and policies of
a person, whether through the ownership of stock or other equity
interests, as trustee or executor, by contract or credit arrangement or
otherwise.
(d) "knowledge" of any Party shall mean the actual knowledge of the
executive officers of such Party.
(e) "Material Adverse Effect" means any change in or effect on the
business of the referenced corporation or any of its Subsidiaries that
is or will be materially adverse to the business, operations (including
the income statement), properties (including intangible properties),
condition (financial or otherwise), assets, liabilities or regulatory
status of such referenced corporation and its Subsidiaries taken as a
whole, but shall not include the effects of changes that are generally
applicable in (A) the telecommunications industry, (B) the United States
economy or (c) the United States securities markets if, in any of (A),
(B) or (C), the effect on Pioneer or Mid-Plains, determined without
including its ownership of Pioneer after the Merger, (as the case may be)
and its respective Subsidiaries, taken as a whole, is not
disproportionate relative to the effect on the other and its
Subsidiaries, taken as a whole. All references to Material Adverse Effect
on Mid-Plains or its Subsidiaries contained in Article IV, V or VI of
this Agreement shall be deemed to refer solely to Mid-Plains and its
Subsidiaries without including its ownership of Pioneer and its
Subsidiaries after the Merger.
(f) "Material Investment" means (a) as to Pioneer, any person which
Pioneer directly or indirectly holds the stock of, or other equity
interest in, provided the lesser of the fair market value or book value
of such interest exceeds $50,000, excluding, however, any person which
is a Subsidiary of Pioneer; and (b) as to Mid-Plains, any person which
Mid-Plains directly or indirectly holds the stock of, or other equity
interest in, provided the lesser of the fair market value or book value
of such interest exceeds $200,000, excluding, however, any person which
is a Subsidiary of Mid-Plains.
(g) "person" means an individual, corporation, limited liability
company, partnership, association, trust, unincorporated organization,
entity or group (as defined in the Exchange Act).
(h) "Subsidiary", "Pioneer Subsidiary", or "Mid-Plains Subsidiary"
means any corporation or other legal entity of which Pioneer or
Mid-Plains, as the case may be (either alone or through or together with
any other Subsidiary or Subsidiaries), owns, directly or indirectly, more
than 50% of the stock or other equity interests the holders of which are
generally entitled to vote for the election of the board of directors or
other governing body of such corporation or other legal entity.
SECTION 10.5 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 10.6 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 adverse to any Party. Upon such
determination that any term or other provision is invalid, illegal or
incapable of being enforced, the Parties 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
the transactions contemplated hereby are fulfilled to the maximum extent
possible.
SECTION 10.7 Entire Agreement; No Third-Party Beneficiaries.
This Agreement constitutes the entire agreement and, except as expressly
set forth herein, supersedes any and all other prior agreements and
undertakings, both written and oral, among the Parties, or any of them,
with respect to the subject matter hereof and, except for Section 7.8
(Indemnification, Directors' and Officers' Insurance) and Section 7.9
(Post-Merger Parent Board of Directors), is not intended to confer upon
any person other than Pioneer, Mid-Plains, Parent, and the Merger
Subsidiaries and, after the Effective Time, their respective
Shareholders, any rights or remedies hereunder.
SECTION 10.8 Assignment. This Agreement shall not be assigned
by operation of law or otherwise.
SECTION 10.9 Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of Wisconsin
applicable to contracts executed in and to be performed entirely within
that State.
SECTION 10.10 Counterparts. This Agreement may be executed in one
or more counterparts, and by the different Parties in separate
counterparts, each of which when executed shall be deemed to be an
original, but all of which shall constitute one and the same agreement.
<PAGE>
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed as of the date first written above by their respective officers
thereunto duly authorized.
MID-PLAINS, INC.
By:/s/Dean W. Voeks
Dean W. Voeks, President
PIONEER COMMUNICATIONS, INC.
By:/s/Douglas J. Timmerman
Douglas J. Timmerman, President
F:\EAFDATA\1740\44911\MERGER.AGR
