SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 2)
Polaris Industries Partners L.P.
____________________________________________________________
(Name of Issuer)
Units of Beneficial Assignment of Class A Limited
Partnership Interests ("BACs")
____________________________________________________________
(Title of Class and Securities)
731069 10 0
____________________________________________________________
(CUSIP Number of Class of Securities)
Andris A. Baltins, Kaplan, Strangis and Kaplan, P.A.,
5500 Norwest Center, 90 South Seventh Street,
Minneapolis, Minnesota 55402 (612) 375-1138
_____________________________________________________________
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
September 29, 1994
____________________________________________________________
(Date of Event which Requires
Filing of this Statement)
If the filing person has previously filed a statement on
Schedule 13G to report the acquisition which is the
subject of this Statement because of Rule 13d-1(b)(3) or
(4), check the following: ( )
Check the following box if a fee is being paid with this
Statement: ( )
SCHEDULE 13D
CUSIP No. 731069 10 0
_________________________________________________________________
(1) NAMES OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
W. Hall Wendel, Jr. (###-##-####)
_________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) ( )
(b) ( )
_________________________________________________________________
(3) SEC USE ONLY
_________________________________________________________________
(4) SOURCE OF FUNDS*
00
_________________________________________________________________
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e)
__________________________________________________________________
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
U.S.A.
_________________________________________________________________
(7) SOLE VOTING POWER
NUMBER OF 860,800 BACs
SHARES ___________________________________
BENEFICIALLY (8) SHARED VOTING POWER
OWNED BY 0
EACH ___________________________________
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON 860,800 BACs
WITH ___________________________________
(10) SHARED DISPOSITIVE POWER
0
_________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
860,800 BACs (including 3,000 BACs owned by Polaris
Industries Inc., a corporation wholly owned by the
Reporting Person)
_________________________________________________________________
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN
SHARES* ( )
_________________________________________________________________
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
5.4%
_________________________________________________________________
(14) TYPE OF REPORTING PERSON*
IN
_________________________________________________________________
SCHEDULE 13-D
filed by
W. Hall Wendel, Jr.
This Amendment No. 2 amends and supplements the
Statement on Schedule 13-D dated March 23, 1990, as
amended by Amendment No. 1 thereto dated August 25, 1994,
filed by W. Hall Wendel, Jr. (the "Reporting Person")
concerning Units of Beneficial Assignment of Class A
Limited Partnership Interests ("BACs") issued by Polaris
Industries Partners L.P. (the "Issuer").
Item 4. Purpose of Transaction.
Item 4 is hereby amended by adding the
following:
On September 29, 1994, the Reporting Person
transferred 3,000 BACs to Polaris Industries Inc., a
newly formed Minnesota corporation (the "Company") in
exchange for 3,000 Shares of Common Stock of the Company
(the "Common Stock"). Also on September 29, 1994, the
Company entered into an Agreement and Plan of Conversion
with the Issuer and others (the "Conversion Agreement")
which provides in general that the Issuer will be
converted to corporate form (the "Conversion") and each
BAC will be exchanged for a share of Common Stock.
Following the Conversion, BAC holders and holders of
previously granted rights to acquire BACs will own 88.6%,
and affiliates of EIP Associates L.P., the general
partner of the Issuer (the "General Partner"), will own
11.4%, of the Common Stock to be outstanding immediately
following the Conversion (assuming exercise of such
rights). A copy of the Conversion Agreement is filed as
Exhibit 2 hereto and is incorporated herein by reference.
On September 30, 1994 the Company and the
General Partner issued a joint press release. A copy of
the joint press release is filed as Exhibit 3 hereto and
is incorporated herein by reference.
Although the foregoing represents the range of
activities presently contemplated by the reporting person
with respect to the Issuer, the possible activities of
the Reporting Person are subject to change at any time.
Item 5. Interest in Securities of the Issuer.
Item 5(c) is hereby amended by adding the
following:
On September 29, 1993, the Reporting Person
transferred 3,000 BACs to the Company in exchange for
3,000 shares of Common Stock, which shares represent all
of the issued and outstanding shares of capital stock of
the Company.
Item 6. Contracts, Arrangements, Understandings
or Relationships With Respect to
Securities of the Issuer
Item 6 is hereby amended by adding the
following:
The information set forth under Item 4 above is
incorporated herein by reference.
Item 7. Materials to be Filed as Exhibits
Item 7 is hereby amended by adding the
following:
Exhibit 2 Agreement and Plan of
Conversion, dated as of
September 29, 1994, by and
among Polaris Industries
Inc., Polaris Industries
Partners L.P., Polaris
Industries L.P., EIP
Associates L.P., Polaris
Industries Associates L.P.,
EIP Capital Corporation,
Polaris Industries Capital
Corporation, the partners
of EIP Associates L.P.
named on Annex I to the
Conversion Agreement, the
partners of Polaris
Industries Associates L.P.
named on Annex II to the
Conversion Agreement, and
the stockholders of EIP
Capital Corporation named
on Annex III to the
Conversion Agreement.
Exhibit 3 Form of Joint Press Release
dated September 30, 1994.
SIGNATURES
After reasonable inquiry and to the best of my
knowledge and belief, I certify that the information set
forth in this statement is true, complete and correct.
Date: September 30, 1994 /s/ W. Hall Wendel, Jr.
W. Hall Wendel, Jr.
EXHIBIT INDEX
Item 7 is hereby amended by adding the
following:
Exhibit 2 Agreement and Plan of
Conversion, dated as of
September 29, 1994, by and
among Polaris Industries
Inc., Polaris Industries
Partners L.P., Polaris
Industries L.P., EIP
Associates L.P., Polaris
Industries Associates L.P.,
EIP Capital Corporation,
Polaris Industries Capital
Corporation, the partners
of EIP Associates L.P.
named on Annex I to the
Conversion Agreement, the
partners of Polaris
Industries Associates L.P.
named on Annex II to the
Conversion Agreement, and
the stockholders of EIP
Capital Corporation named
on Annex III to the
Conversion Agreement.
Exhibit 3 Form of Joint Press Release
dated September 30, 1994.
EXHIBIT 2
POLARIS INDUSTRIES INC.
POLARIS INDUSTRIES PARTNERS L.P.
_______________
AGREEMENT AND PLAN OF CONVERSION
_______________
September 29, 1994
_______________
TABLE OF CONTENTS
Page
AGREEMENT AND PLAN OF CONVERSION
ARTICLE I THE PICC MERGER . . . . . . . . . . . . . . . . . .
Section 1.1 The PICC Merger . . . . . . . . . .
Section 1.2 Effects of the PICC Merger . . . . .
ARTICLE II THE EIPCC STOCK EXCHANGE . . . . . . . . . . .
Section 2.1 The EIPCC Stock Exchange . . . . . .
ARTICLE III THE PARTNERSHIP GP EXCHANGE . . . . . . . . .
Section 3.1 The Partnership GP Exchange . . . .
ARTICLE IV THE OPERATING PARTNERSHIP GP EXCHANGE . . . .
Section 4.1 The Operating Partnership GP
Exchange . . . . . . . . . . . .
ARTICLE V THE MERGER . . . . . . . . . . . . . . . . . .
Section 5.1 Formation of PTP . . . . . . . . . .
Section 5.2 The Merger . . . . . . . . . . . . .
Section 5.3 Effects of the Merger . . . . . . .
ARTICLE VI THE OPERATING PARTNERSHIP MERGER . . . . . . .
Section 6.1 The Operating Partnership
Merger . . . . . . . . . . . . .
Section 6.2 Effects of the Operating
Partnership Merger . . . . . . .
ARTICLE VII CONVERSION OF UNITS IN THE MERGER . . . . . .
Section 7.1 Conversion of Units . . . . . . . .
Section 7.2 Exchange of Certificates . . . . . .
Section 7.3 Procedures for Dissent by
Record Holders of Units . . . . .
Section 7.4 Provisions Affecting Remedies
of Dissenting Unitholders . . . .
ARTICLE VIII THE CLOSINGS . . . . . . . . . . . . . . . . .
Section 8.1 The Closings . . . . . . . . . . . .
Section 8.2 Deliveries at the First
Closing . . . . . . . . . . . . .
Section 8.3 Deliveries at the Second
Closing . . . . . . . . . . . . .
Section 8.4 Deliveries at the Third
Closing . . . . . . . . . . . . .
Section 8.5 Deliveries at the Fourth
Closing . . . . . . . . . . . . .
Section 8.6 Deliveries at the Fifth
Closing . . . . . . . . . . . . .
Section 8.7 Deliveries at the Sixth
Closing . . . . . . . . . . . . .
ARTICLE IX JOINT AND SEVERAL REPRESENTATIONS AND
WARRANTIES OF CERTAIN PARTNERSHIP
ENTITIES . . . . . . . . . . . . . . . . . . .
Section 9.1 Organization . . . . . . . . . . . .
Section 9.2 Capitalization . . . . . . . . . . .
Section 9.3 Authority . . . . . . . . . . . . .
ARTICLE X SEVERAL REPRESENTATIONS AND WARRANTIES
OF CERTAIN PARTNERSHIP ENTITIES . . . . . . .
Section 10.1 Representations and Warranties
of the EIPCC Stockholders . . . .
Section 10.2 Representations and Warranties
of the Partnership GP Partners . .
Section 10.3 Representations and Warranties
of the Operating Partnership
GP Partners . . . . . . . . . . .
ARTICLE XI REPRESENTATIONS AND WARRANTIES OF THE
COMPANY . . . . . . . . . . . . . . . . . . .
Section 11.1 Organization . . . . . . . . . . . .
Section 11.2 Capitalization . . . . . . . . . . .
Section 11.3 Authority . . . . . . . . . . . . . .
Section 11.4 No Activity . . . . . . . . . . . . .
ARTICLE XII COVENANTS . . . . . . . . . . . . . . . . . .
Section 12.1 Conduct of Business of Certain
Partnership Entities . . . . . .
Section 12.2 Conduct of Business of the
Company. . . . . . . . . . . . .
Section 12.3 Reasonable Best Efforts . . . . . . .
Section 12.4 Letter of the Partnership's
Accountants . . . . . . . . . . .
Section 12.5 Access to Information . . . . . . . .
Section 12.6 Unitholders Meeting . . . . . . . . .
Section 12.7 Legal Conditions to Merger . . . . .
Section 12.8 Affiliates . . . . . . . . . . . . .
Section 12.9 Stock Exchange Listing . . . . . . .
Section 12.10 Employee Benefit Plans . . . . . . .
Section 12.11 Partnership Plans . . . . . . . . .
Section 12.12 Fees and Expenses . . . . . . . . .
Section 12.13 Brokers or Finders . . . . . . . . .
Section 12.14 Indemnification . . . . . . . . . .
Section 12.15 Indemnification of The Transferors,
The Partnership GP, The Operating
Partnership GP, EIPCC, PICC and
Agents. . . . . . . . . . . . . .
Section 12.16 Preservation of Partnership,
Partnership GP and EIPCC . . . .
Section 12.17 Notification of Certain
Matters . . . . . . . . . . . . .
Section 12.18 Publicity . . . . . . . . . . . . .
Section 12.19 Certain Tax Matters . . . . . . . .
Section 12.20 Registration Rights . . . . . . . .
Section 12.21 Delivery of Documents . . . . . . .
Section 12.22 Partnership Distributions. . . . . .
ARTICLE XIII CONDITIONS . . . . . . . . . . . . . . . . . .
Section 13.1 Conditions to Each Party's
Obligation To Effect the
Transactions Contemplated
Hereby . . . . . . . . . . . . .
Section 13.2 Conditions to Obligations of
The Company . . . . . . . . . . .
Section 13.3 Conditions to Obligations of
the Partnership Entities . . . .
ARTICLE XIV INDEMNITIES . . . . . . . . . . . . . . . . .
Section 14.1 EIPCC Stockholders' Indemnity . . . .
Section 14.2 Partnership GP Partners
Indemnity. . . . . . . . . . . .
Section 14.3 Operating Partnership GP
Partners Indemnity . . . . . . .
Section 14.4 General Tax Indemnity . . . . . . .
Section 14.5 Exception to Certain
Indemnities. . . . . . . . . . .
Section 14.6 Indemnification of W. Hall
Wendel, Jr. and the Company . . .
Section 14.7 Procedures for Indemnifica-
tion . . . . . . . . . . . . . .
ARTICLE XV TERMINATION AND AMENDMENT . . . . . . . . . .
Section 15.1 Termination . . . . . . . . . . . . .
Section 15.2 Effect of Termination . . . . . . . .
Section 15.3 Amendment . . . . . . . . . . . . . .
ARTICLE XVI MISCELLANEOUS . . . . . . . . . . . . . . . .
Section 16.1 Fiduciary Duties . . . . . . . . . .
Section 16.2 Nonsurvival of Representations
and Warranties . . . . . . . . .
Section 16.3 Notices . . . . . . . . . . . . . . .
Section 16.4 Interpretation . . . . . . . . . . .
Section 16.5 Counterparts . . . . . . . . . . . .
Section 16.6 Entire Agreement; No Third
Party Beneficiaries . . . . . . .
Section 16.7 Governing Law . . . . . . . . . . . .
Section 16.8 Specific Performance . . . . . . . .
Section 16.9 Assignment; Successors . . . . . . .
ANNEX I List of Partnership GP Partners
ANNEX II List of Operating Partnership GP Partners
ANNEX III List of EIPCC Stockholders
EXHIBIT A Form of Registration Rights Agreement
AGREEMENT AND PLAN OF CONVERSION
AGREEMENT AND PLAN OF CONVERSION, dated as of
September 29, 1994, by and among Polaris Industries Inc.,
a Minnesota corporation (the "Company"); Polaris
Industries Partners L.P., a Delaware limited partnership
(the "Partnership"); Polaris Industries L.P., a Delaware
limited partnership owned by the Partnership (the
"Operating Partnership"); EIP Associates L.P., a Delaware
limited partnership and the general partner of the
Partnership (the "Partnership GP"); Polaris Industries
Associates L.P., a Delaware limited partnership and the
general partner of the Operating Partnership (the
"Operating Partnership GP"); EIP Capital Corporation, a
Delaware corporation and the managing general partner of
the Partnership GP ("EIPCC"); Polaris Industries Capital
Corporation, a Delaware corporation wholly owned by EIPCC
and the managing general partner of the Operating
Partnership GP ("PICC"); the partners of the Partnership
GP named on Annex I attached hereto (the "Partnership GP
Partners"); the partners of the Operating Partnership GP
named on Annex II hereto (the "Operating Partnership GP
Partners"); and the stockholders of EIPCC named on Annex
III hereto (the "EIPCC Stockholders"). The Partnership,
the Operating Partnership, the Partnership GP, the
Operating Partnership GP, PICC, EIPCC, the Partnership GP
Partners, the Operating Partnership GP Partners and the
EIPCC Stockholders are collectively referred to herein as
the "Partnership Entities". The Partnership GP Partners,
the Operating Partnership GP Partners and the EIPCC
Stockholders are collectively referred to herein as the
"Transferors."
WHEREAS, the parties hereto desire to convert
the structure of the Partnership from that of a master
limited partnership to that of a corporation (the
"Conversion") through consummation of the following
transactions (collectively, the "Transactions"):
(i) First, PICC shall be merged with and
into EIPCC, with EIPCC as the surviving corporation (the
"PICC Merger"); (ii) Second, the EIPCC Stockholders,
owning all the issued and outstanding capital stock of
EIPCC, shall transfer such capital stock to the Company
in exchange for shares of Company Common Stock (as
hereinafter defined) (the "EIPCC Stock Exchange");
(iii) Third, the Partnership GP Partners, owning all the
issued and outstanding partnership interests of the
Partnership GP not presently owned by EIPCC, shall
transfer such partnership interests to the Company in
exchange for shares of Company Common Stock (the
"Partnership GP Exchange"); (iv) Fourth, the Operating
Partnership GP Partners, owning all the issued and
outstanding partnership interests of the Operating
Partnership GP not presently owned by PICC, shall
transfer such partnership interests to the Company in
exchange for shares of Company Common Stock (the
"Operating Partnership GP Exchange"); (v) Fifth, the
Company and EIPCC shall form a new Delaware limited
partnership named PTP LP, or such other name as they
determine ("PTP"), with the Company as PTP's sole limited
partner and EIPCC as PTP's sole general partner;
(vi) Sixth, PTP shall be merged with and into the
Partnership (the "Merger"), in which the Partnership
shall be the surviving partnership with the Partnership
GP as the Partnership's general partner and the Company
and EIPCC as the Partnership's limited partners and the
outstanding Units of Beneficial Assignment of Class A
Limited Partnership Interests of the Partnership (the
"Units") shall be converted into shares of Company Common
Stock; and (vii) Seventh, the Operating Partnership and
the Operating Partnership GP shall be merged with and
into the Partnership (the "Operating Partnership
Merger"), in which the Partnership shall be the surviving
partnership with the Partnership GP and the Company as
the Partnership s general partners, and the Company and
EIPCC as the Partnership s limited partners;
WHEREAS, pursuant to the Merger, each Unit then
outstanding (other than Units to be cancelled pursuant to
Section 7.1(a) hereof and Units as to which the holders
thereof shall have exercised appraisal rights pursuant to
Section 7.3 hereof, if any) shall be converted into one
share of common stock, par value $.01 per share of the
Company ("Company Common Stock");
WHEREAS, pursuant to the EIPCC Stock Exchange,
the Partnership GP Exchange and the Operating Partnership
GP Exchange, the Transferors shall collectively receive
in the aggregate 2,100,243 shares of Company Common Stock
(the "Transferors' Number");
WHEREAS, as a result of the Transactions, EIPCC
will be wholly owned by the Company; the Partnership GP
will be wholly owned by the Company (as a general partner
and limited partner) and EIPCC (as managing general
partner); the Partnership will be wholly owned by the
Company (as a general partner and a limited partner), the
Partnership GP (as a general partner), and EIPCC (as a
limited partner); the Partnership Entities (other than
EIPCC, the Partnership GP, the Partnership and the
Transferors) will cease to exist; and the Transferors
(other than in their capacities as Unitholders) will own
11.4% of Company Common Stock to be issued and
outstanding after giving effect to the exercise of
previously granted First Rights (as defined herein) and
the Unitholders together with holders of outstanding
First Rights (upon exercise of such First Rights) will
own in the aggregate 88.6% of the Company Common Stock to
be issued and outstanding after giving effect to the
exercise of such First Rights;
NOW, THEREFORE, in consideration of the
foregoing and the respective representations, warranties,
covenants and agreements set forth herein, the parties
hereto agree as follows:
ARTICLE I
THE PICC MERGER
Section 1.1 The PICC Merger. Upon the terms
and subject to the conditions hereof, at the First
Closing (as hereinafter defined), a certificate of merger
(the "PICC Certificate of Merger") shall be duly
prepared, executed and acknowledged by EIPCC, the
surviving corporation in the PICC Merger, and thereafter
delivered to the Secretary of State of the State of
Delaware, for filing, as provided in the Delaware General
Corporation Law (the "DGCL"). The PICC Merger shall
become effective upon the filing of the PICC Certificate
of Merger with the Secretary of State of the State of
Delaware (the "PICC Effective Time").
Section 1.2 Effects of the PICC Merger. The
PICC Merger shall have the effects set forth in the DGCL.
Without limiting the generality of the foregoing, and
subject thereto, at the PICC Effective Time, all the
properties, rights, privileges, powers and franchises of
PICC shall vest in EIPCC, as the surviving corporation in
the PICC Merger, and all debts, liabilities and duties of
PICC shall become the debts, liabilities and duties of
EIPCC. In addition, from and after the PICC Effective
Time, all outstanding shares of PICC capital stock shall
be cancelled without consideration and cease to exist.
ARTICLE II
THE EIPCC STOCK EXCHANGE
Section 2.1 The EIPCC Stock Exchange.
(a) Upon the terms and subject to the
conditions hereof, at the Second Closing (as hereinafter
defined), the Company shall acquire from each of the
EIPCC Stockholders and each of the EIPCC Stockholders
shall assign, transfer, convey and deliver to the
Company, the shares of common stock, par value $1.00 per
share, of EIPCC owned by such EIPCC Stockholders, as set
forth opposite the EIPCC Stockholders' names on Annex III
hereto, together constituting all the issued and
outstanding shares of capital stock of EIPCC (the "EIPCC
Common Stock"), free and clear of all liens, charges,
pledges, security interests, claims and encumbrances
whatsoever (collectively, "Liens").
(b) As payment in full for the EIPCC Common
Stock being acquired by it from the EIPCC Stockholders
hereunder, and against delivery thereof as aforesaid, at
the Second Closing, the Company shall issue to each of
the EIPCC Stockholders a number of shares of Company
Common Stock equal to the Transferors' Number multiplied
by the fraction set forth opposite such EIPCC
Stockholder's name on Annex III hereto.
ARTICLE III
THE PARTNERSHIP GP EXCHANGE
Section 3.1 The Partnership GP Exchange.
(a) Upon the terms and subject to the
conditions hereof, at the Third Closing (as defined
herein), the Company shall acquire from each of the
Partnership GP Partners, and each of such Partnership GP
Partners shall assign, transfer, convey and deliver to
the Company, the partnership interests in the Partnership
GP owned by such Partnership GP Partners, as set forth
opposite the Partnership GP Partners' names on Annex I
hereto (the "Partnership GP Interests"), constituting
(together with EIPCC's interest in the Partnership GP)
all the issued and outstanding partnership interests of
the Partnership GP, free and clear of all Liens.
(b) As payment in full for the Partnership GP
Interests being acquired by it from the Partnership GP
Partners hereunder, and against delivery thereof as
aforesaid, at the Third Closing, the Company shall issue
to each of the Partnership GP Partners a number of shares
of Company Common Stock equal to the Transferors' Number
multiplied by the fraction set forth opposite such
Partnership GP Partner's name on Annex I hereto.
ARTICLE IV
THE OPERATING PARTNERSHIP GP EXCHANGE
Section 4.1 The Operating Partnership GP
Exchange.
(a) Upon the terms and subject to the
conditions hereof, at the Fourth Closing (as hereinafter
defined), the Company shall acquire from each of the
Operating Partnership GP Partners, and each of such
Operating Partnership GP Partners shall assign, transfer,
convey and deliver to the Company, the partnership
interests in the Operating Partnership GP owned by the
Operating Partnership GP Partners, as set forth opposite
the Operating Partnership GP Partners' names on Annex II
hereto (the "Operating Partnership GP Interests"),
constituting (together with EIPCC's interest in the
Operating Partnership GP) all the issued and outstanding
partnership interests of the Operating Partnership GP,
free and clear of all Liens.
(b) As payment in full for the Operating
Partnership GP Interests being acquired by it from the
Operating Partnership GP Partners hereunder, and against
delivery thereof as aforesaid, at the Fourth Closing, the
Company shall issue to each of the Operating Partnership
GP Partners a number of shares of Company Common Stock
equal to the Transferors' Number multiplied by the
fraction set forth opposite such Operating Partnership GP
Partners' name on Annex II hereto.
ARTICLE V
THE MERGER
Section 5.1 Formation of PTP. Upon the terms
and subject to the conditions hereof, at the Fifth
Closing (as hereinafter defined), a certificate of
limited partnership (the "PTP Certificate of Limited
Partnership") shall be duly prepared, executed and
acknowledged by EIPCC, the general partner of PTP, and
delivered to the Secretary of State of the State of
Delaware, for filing, as provided in the Delaware Revised
Uniform Limited Partnership Act (the "DRULPA"). PTP
shall be formed upon the filing of the PTP Certificate of
Limited Partnership with the Secretary of State of the
State of Delaware. PTP shall be formed by EIPCC, as
general partner, and the Company as limited partner and
shall be capitalized with $100 in capital, with $90 being
contributed by the Company and $10 being contributed by
EIPCC. PTP shall qualify as a partnership for federal
income tax purposes.
Section 5.2 The Merger. Upon the terms and
subject to the conditions hereof, at the Fifth Closing,
immediately following the consummation of the
transactions set forth in Section 5.1 hereof a
certificate of merger (the "Certificate of Merger") shall
be duly prepared, executed and acknowledged by the
Partnership, the surviving partnership in the Merger, and
delivered to the Secretary of State of the State of
Delaware, for filing, as provided in the DRULPA. The
Merger shall become effective upon the filing of the
Certificate of Merger with the Secretary of State of the
State of Delaware (the "Effective Time"). The
partnership agreement of the Partnership, as in effect
immediately prior to the Effective Time shall be the
Partnership Agreement of the Partnership following the
Effective Time unless and until amended in accordance
with the terms thereof and applicable law.
Section 5.3 Effects of the Merger. The Merger
shall have the effects set forth in the DRULPA. Without
limiting the generality of the foregoing, and subject
thereto, at the Effective Time, all the properties,
rights, privileges, powers and franchises of PTP shall
vest in the Partnership as the surviving Partnership in
the Merger, and all debts, liabilities and duties of PTP
shall become the debts, liabilities and duties of the
Partnership. In addition, at the Effective Time, all
outstanding Units (other than Units to be cancelled
pursuant to Section 7.1(a) hereof, and other than Units
as to which the holders thereof shall have exercised
appraisal rights pursuant to Section 7.3 hereof, if any)
will be converted into shares of Company Common Stock as
provided in Article VII hereof; at the Effective Time,
EIPCC's general partnership interest in PTP shall be
converted into a limited partnership interest of 0.0001%
in the Partnership and EIPCC s capital contribution to
PTP shall be returned; and at the Effective Time, the
Company's limited partnership interest in PTP shall be
converted into a limited partnership interest in the
Partnership and the Company s capital contribution to PTP
shall be returned. The partnership interests of the
Partnership GP in the Partnership and the partnership
interests of the Company and EIPCC in the Partnership GP
shall not be affected by the Merger.
ARTICLE VI
THE OPERATING PARTNERSHIP MERGER
Section 6.1 The Operating Partnership Merger.
Upon the terms and subject to the conditions hereof, at
the Sixth Closing (as hereinafter defined), a certificate
of merger (the "Operating Partnership Certificate of
Merger") shall be duly prepared, executed and
acknowledged by the Partnership, the surviving
partnership in the Operating Partnership Merger, and
delivered to the Secretary of State of the State of
Delaware, for filing, as provided in the DRULPA. The
Operating Partnership Merger shall become effective upon
the filing of the Operating Partnership Certificate of
Merger with the Secretary of State of the State of
Delaware (the "Operating Partnership Effective Time").
The partnership agreement of the Partnership, as in
effect immediately prior to the Operating Partnership
Effective Time, shall be the Partnership Agreement of the
Partnership following the Operating Partnership Effective
Time unless and until amended in accordance with the
terms thereof and applicable law.
Section 6.2 Effects of the Operating
Partnership Merger. The Operating Partnership Merger
shall have the effects set forth in the DRULPA. Without
limiting the generality of the foregoing, and subject
thereto, at the Operating Partnership Effective Time, all
the properties, rights, privileges, powers and franchises
of the Operating Partnership and the Operating
Partnership GP shall vest in the Partnership, as the
surviving partnership in the Operating Partnership
Merger, and all debts, liabilities and duties of the
Operating Partnership and the Operating Partnership GP
shall become the debts, liabilities and duties of the
Partnership. In addition, from and after the Operating
Partnership Effective Time, all outstanding interests in
the Operating Partnership shall be cancelled without
consideration and cease to exist; and at the Operating
Partnership Effective Time, (i) the Company s general
partnership interest and limited partnership interest in
the Operating Partnership GP shall be converted into a
general partnership interest and a limited partnership
interest in the Partnership; and (ii) EIPCC s general
partnership interest in the Operating Partnership GP
shall be converted into a limited partnership interest in
the Partnership.
ARTICLE VII
CONVERSION OF UNITS IN THE MERGER
Section 7.1 Conversion of Units. As of the
Effective Time, by virtue of the Merger and without any
action on the part of the holder of any Units (each a
"Unitholder"):
(a) Cancellation of Units held by the Company.
All Units that are owned by the Company or any Subsidiary
(as hereinafter defined) of the Company shall be
cancelled and retired and shall cease to exist and no
capital stock of the Company or other consideration shall
be delivered in exchange therefor. As used in this
Agreement, the word "Subsidiary" means, with respect to
any party, any corporation or other organization, whether
incorporated or unincorporated, of which at least a
majority of the securities or other interests having by
their terms ordinary voting power to elect or remove a
majority of the Board of Directors or others performing
similar functions with respect to such corporation or
other organization is directly or indirectly owned or
controlled by such party together with its Subsidiaries.
(b) Exchange Ratio for Units. Each Unit
issued and outstanding at the Effective Time (other than
Units to be cancelled in accordance with Section 7.1(a)
and other than Units as to which the holders thereof
shall have exercised appraisal rights pursuant to Section
7.3 hereof, if any) shall be converted into one (1) (the
"Conversion Number") fully paid and nonassessable share
of Company Common Stock (the "Conversion Consideration").
At the Effective Time, such Units shall no longer be
outstanding and shall automatically be cancelled and
retired and shall cease to exist, and each holder of a
certificate representing any such Units shall cease to
have any rights with respect thereto, except the right to
receive a certificate representing shares of Company
Common Stock and Distributions (as defined in Section
12.22 hereof).
Section 7.2 Exchange of Certificates.
(a) Exchange Agent. As of the Effective
Time, the Company shall deposit with Norwest Bank, N.A.
(the "Exchange Agent"), for the benefit of the holders of
Units, for exchange in accordance with this Article VII,
through the Exchange Agent, certificates representing the
shares of Company Common Stock (such shares of Company
Common Stock, together with any dividends or
distributions with respect thereto, being hereinafter
referred to as the "Exchange Fund") issuable pursuant to
Section 7.1 in exchange for certificates which
immediately prior to the Effective Time represented
outstanding Units.
(b) Exchange Procedures. As soon as
practicable after the Effective Time, the Company shall
cause the Exchange Agent to mail to each holder of record
of a certificate or certificates which immediately prior
to the Effective Time represented outstanding Units (the
"Certificates") whose Units were converted pursuant to
Section 7.1 into shares of Company Common Stock (i) a
letter of transmittal (which shall be in such form and
have such provisions as the Company and the Partnership
GP may reasonably specify) and (ii) instructions for use
in effecting the surrender of the Certificates in
exchange for certificates representing shares of Company
Common Stock. Upon surrender of a Certificate for
cancellation to the Exchange Agent or to such other agent
or agents as may be appointed by the Company, together
with such letter of transmittal, duly executed, the
holder of such Certificate shall be entitled to receive
in exchange therefor a certificate representing that
number of shares of Company Common Stock which such
holder has the right to receive pursuant to the
provisions of this Article VII, and the Certificate so
surrendered shall forthwith be cancelled. In the event
of a transfer of ownership of Units which is not
registered in the transfer records of the Partnership, a
certificate representing the proper number of shares of
Company Common Stock may be issued to a transferee if the
Certificate is presented to the Exchange Agent,
accompanied by all documents required to evidence and
effect such transfer and by evidence that any applicable
transfer taxes have been paid. Until surrendered as
contemplated by this Section 7.2, each Certificate shall
be deemed at any time after the Effective Time to
represent only the right to receive upon such surrender a
certificate representing shares of Company Common Stock.
(c) Distributions with Respect to Unexchanged
Units. No dividends or other distributions declared or
made after the Effective Time with respect to Company
Common Stock with a record date after the Effective Time
shall be paid to the holder of any unsurrendered
Certificate with respect to the shares of Company Common
Stock which such holder is entitled to receive upon the
surrender thereof in accordance with this Section 7.2
until the holder of record of such Certificate shall so
surrender such Certificate. Subject to the effect of
applicable laws, following surrender of any such
Certificate, there shall be paid to the record holder of
the certificates representing shares of Company Common
Stock issued in exchange therefor, without interest, (i)
at the time of such surrender, the amount of dividends or
other distributions with a record date after the
Effective Time theretofore paid with respect to such
shares of Company Common Stock, and (ii) at the
appropriate payment date, the amount of dividends or
other distributions with a record date after the
Effective Time but prior to such surrender and a payment
date subsequent to surrender payable with respect to such
shares of Company Common Stock.
(d) No Further Ownership Rights in Units. All
certificates representing shares of Company Common Stock
issued upon the surrender for exchange of Certificates in
accordance with the terms hereof shall be deemed to have
been issued in full satisfaction of all rights pertaining
to such Units (except the right to receive previously
declared but unpaid distributions from the Partnership),
and there shall be no further registration of transfers
on the transfer books of the Partnership of the Units
which were outstanding immediately prior to the Effective
Time. If, after the Effective Time, Certificates are
presented to the Partnership or the Company for any
reason, they shall be cancelled and exchanged as provided
in this Article VII.
(e) Termination of Exchange Fund. Any portion
of the Exchange Fund which remains undistributed to the
Certificate holders for one year after the Effective Time
shall be delivered to the Company, upon demand, and any
Certificate holders who have not theretofore complied
with this Article VII shall thereafter look only to the
Company for payment of their claim for certificates
representing shares of Company Common Stock and any
dividends or distributions with respect to Company Common
Stock.
(f) No Liability. None of the Company, the
Partnership or any Partnership Entity shall be liable to
any holder of Units, Certificates or Company Common
Stock, as the case may be, for such securities (or
dividends or distributions with respect thereto)
delivered to a public official pursuant to any applicable
abandoned property, escheat or similar law.
Section 7.3 Procedures for Dissent by Record
Holders of Units. (a) Notwithstanding anything in this
Agreement to the contrary, Units that are outstanding
immediately prior to the Effective Time and are held by
Unitholders who did not vote for the Merger and who shall
have delivered to the Executive Vice President, Finance
and Administration, of the Company a written objection in
accordance with clause (i) of Section 7.3(b) (each a
"Dissenting Unitholder") shall not be deemed converted
into the Conversion Consideration, but the Unitholders
thereof shall be entitled to payment of the Fair Value
(as defined below) of such Units in accordance with the
provisions of Sections 7.3 and 7.4 hereof ("Appraisal
Rights"); provided, however, that if the right of any
Dissenting Unitholder to be paid the Fair Value of his or
her Units shall cease in accordance with clause (iii) of
Section 7.3(b) or otherwise, such Units shall be deemed
to have been exchanged as of the Effective Time for the
Conversion Consideration without interest thereon. Any
Unitholder seeking Appraisal Rights must (A) hold his or
her Units for which appraisal is sought on the Record
Date, (B) continuously hold such Units through the
Effective Time, and (C) otherwise comply with the
following provisions of this Section 7.3. "Fair Value"
as used herein shall mean, with respect the Units, the
value thereof as of the day immediately preceding the
Effective Time, excluding any appreciation or
depreciation in such value arising from the
accomplishment or expectation of the Merger or the
Transactions.
(b) (i) A Unitholder who desires to exercise
his or her right to dissent to the Merger (and thereby
his Appraisal Rights) must be a holder of record on, and
have filed with the Partnership on or before, the fifth
day prior to the date of the Unitholders' meeting
referred to in Section 12.6 hereof (the "Meeting Date"),
a written objection to the Merger and a notice stating
that the Unitholder's right to dissent will be exercised
if the Merger is effected and giving the Unitholder's
address, to which notice shall be delivered or mailed in
that event. Such objection and notice must have (A)
reasonably informed the Partnership of the identity of
the Unitholder and that such Unitholder demands Appraisal
Rights with respect to his or her Units and (B) be
separate from any proxy relating to the Merger.
(ii) If the Merger is effected, the
Company shall, within 10 days after the Merger is
effected, mail to each Unitholder of record at the
Effective Time who filed an objection and notice pursuant
to clause (i) of this Section 7.3(b) and did not vote in
favor of the Merger written notice that the Merger has
been effected (including the date thereof).
(iii) Any Unitholder who (A) voted in
favor of the Merger or delivered a proxy in favor of the
Conversion or an unmarked proxy, or (B) failed to make
the written objection and notice in accordance with
clause (i) of this Section 7.3(b), shall not be entitled
to Appraisal Rights but shall otherwise be bound by the
Merger. Neither voting against, abstaining from voting,
nor failing to vote on the Merger by any Unitholder, will
constitute a demand by such Unitholder for Appraisal
Rights within the meaning of Section 7.3(a) hereof or
this Section 7.3(b).
(c) At any time within 120 days after the
Effective Time, any Dissenting Unitholder who has
complied with the requirements of Section 7.3(b) hereof,
upon written request, shall be entitled to receive from
the Company a statement setting forth the aggregate
number of Units not voted in favor of the Merger and with
respect to which demands for Appraisal Rights have been
received and the aggregate number of Unitholders who hold
such Units. Such written statement shall be mailed to
the requesting Dissenting Unitholder within 10 days after
the later of his written request for such a statement is
received by the Company and the expiration of the period
for delivery of demands for appraisal.
(d) At any time within the period of 120 days
after the Effective Time, any Dissenting Unitholder or
the Company may file a petition in the Delaware Court of
Chancery (the "Chancery Court") asking for a finding and
determination of the Fair Value of the Dissenting
Unitholder's Units. Upon the filing of any such petition
by the Dissenting Unitholder, service of a copy thereof
shall be made upon the Company, which shall, within 20
days after service, file in the office of the Register in
Chancery of the Chancery Court in which such petition was
filed (the "Register in Chancery") a duly verified list
containing the names and addresses of all Unitholders who
have demanded payment for their Units and not withdrawn
such demand in accordance with Section 7.3(b) hereof. If
the petition shall be filed by the Company, the petition
shall be accompanied by such a duly verified list. The
Register in Chancery, if so ordered by the Chancery
Court, shall give notice of the time and place fixed for
the hearing of the petition by certified or registered
mail to the Company and to the Unitholders named on the
list at the addresses therein stated. Such notice shall
also be given by one or more publications, at least one
week prior to the scheduled date of the hearing, in a
newspaper of general circulation in the City of
Wilmington, Delaware or such other publication as the
Chancery Court deems advisable. The forms of the notices
by mail and by publication shall be approved by the
Chancery Court, and the costs thereof shall be borne by
the Company. All Dissenting Unitholders thus notified
and the Company shall thereafter be bound by the final
judgment of the Chancery Court.
(e) At the hearing on the petition, the
Chancery Court shall determine the Dissenting Unitholders
who have complied with the provisions of this Section 7.3
and have become entitled to the valuation of and payment
for their Units. After determining the Unitholders
entitled to Appraisal Rights, the Chancery Court shall
appraise the Units, determining their Fair Value,
together with a fair rate of interest, if any, to be paid
upon the amount determined to be the Fair Value. In
determining such Fair Value, the Chancery Court shall
take into account all relevant factors. In determining
the fair rate of interest, the Chancery Court may
consider all relevant factors, including the rate of
interest which the Company would have had to pay to
borrow money during the pendency of the proceeding. The
Chancery Court shall have power to examine any of the
books and records of the Company. Upon application by
the Company or by any Unitholder entitled to participate
in the proceeding, the Chancery Court may, in its
discretion, permit discovery or other pretrial
proceedings and may proceed to trial upon the appraisal
prior to the final determination of the Unitholders
entitled to an appraisal. Any Dissenting Unitholder
whose name appears on the list filed by the Company
pursuant to Section 7.3(d) may participate fully in all
proceedings until it is finally determined that he or she
is not entitled to Appraisal Rights under Section 7.3 and
7.4 hereof.
(f) The Chancery Court shall by its judgment
determine the Fair Value of the Units of the Dissenting
Unitholders entitled to payment for their Units and shall
direct the payment of that Fair Value, together with
interest, if any, thereon, by the Company to the
Dissenting Unitholders entitled to payment. Interest may
be simple or compound, as the Chancery Court may direct.
The Chancery Court's judgment shall be enforceable as
other judgments in the Chancery Court. Upon payment of
the judgment, the Dissenting Unitholders shall cease to
have any interest in their Units or the Company. The
costs of the proceeding shall be allotted between the
parties in the manner that the Chancery Court determines
to be equitable under the circumstances. Upon
application of a Dissenting Unitholder, the Chancery
Court may order all or a portion of the expenses incurred
by any Dissenting Unitholder in connection with the
proceeding, including, without limitation, reasonable
attorney's fees and the fees and expenses of experts, to
be charged pro rata against the value of all the Units
whose Fair Value is determined pursuant to the
proceeding. In the absence of such a determination of
assessment by the Chancery Court, each party shall bear
his, her or its own expenses.
(g) Each Unit acquired by the Company pursuant
to the payment of the judgment entered for the Fair Value
of the Units, as provided in this Section 7.3, shall be
cancelled and of no force or effect.
(h) The remedy provided by this Section 7.3 to
a Dissenting Unitholder objecting to the Merger is the
exclusive remedy for the recovery of the value of his or
her Units or money damages to the Unitholder with respect
to the Merger. If the Company complies with the
requirements of this Section 7.3, any Dissenting
Unitholder who fails to comply with the requirements of
this Section 7.3 shall not be entitled to bring suit for
the recovery of the value of his or her Units or money
damages to the Dissenting Unitholder with respect to the
Merger.
(i) Without limitation of the generality of
Section 7.3(c) hereof, if the Chancery Court shall refuse
to recognize the rights and procedures set forth in
Sections 7.3 and 7.4 hereof with respect to Dissenting
Unitholders, or shall otherwise refuse to follow the
procedures set forth in this Section 7.3 to be followed
by it, then the Company within 45 days after learning of
such refusal by the Chancery Court, shall make
application to the American Arbitration Association
("AAA"), Philadelphia Branch, to select an independent
appraiser (the "Special Appraiser") to determine the Fair
Value of the Units held by all such Dissenting
Unitholders. Within 30 days after the Company is
notified of the selection of the Special Appraiser, the
Company shall deliver or mail to each Dissenting
Unitholder a written notice stating that a Special
Appraiser has been selected in accordance with this
Section 7.3(i) and specifying the name and address of the
Special Appraiser. From and after the delivery or
mailing of such notice, all petitions, lists and other
documents that would have been filed under Section 7.3(d)
or (e) hereof with the Register in Chancery and the
Chancery Court shall be filed instead with the Special
Appraiser. The Special Appraiser shall retain all such
documents filed with him in clearly-identifiable files,
shall maintain an index or log listing all such documents
and the time and date on which they were filed, and shall
make all such documents and files available to the
Company and any Dissenting Unitholders during the same
business hours as those that are maintained by the clerks
of the Chancery Court. If any such documents shall have
already been filed with the Register in Chancery and the
Chancery Court, the Company, at its expense, shall obtain
copies of such documents from the applicable clerk of the
Chancery Court and shall file such copies with the
Special Appraiser. The Special Appraiser shall give any
notices that would have been given by the Chancery Court
or its clerk pursuant to Sections 7.3(d), (e) and (f)
hereof. The Special Appraiser shall perform the
functions and take the actions that would have been
performed and taken by the Chancery Court under Sections
7.3(d), (e) and (f) hereof. In doing so, the Special
Appraiser shall follow the procedures set forth in such
Sections as nearly as practicable. The Fair Value
finally determined by the Special Appraiser shall be
final and binding upon all such Dissenting Unitholders
and the Company, and the other provisions of Sections 7.3
and 7.4 hereof with respect to the effect of such
determination and the rights of Dissenting Unitholders
(including, without limitation, pursuant to Section
7.3(h) hereof) shall be applicable as nearly as
practicable. Should the Special Appraiser die or become
unable or unwilling to serve, the Company shall promptly
make application to the AAA for selection of a substitute
Special Appraiser, who shall have the same powers and
duties as the original Special Appraiser and who shall
obtain from the original Special Appraiser (or his
estate) all documents and files pertaining to the Merger.
Section 7.4 Provisions Affecting Remedies of
Dissenting Unitholders.
(a) Subject to the right of a Dissenting
Unitholder pursuant to Section 7.4(b) hereof to withdraw
his or her demand for payment, from and after the
Effective Time, any Dissenting Unitholder who has
demanded payment for his or her Units in accordance with
Section 7.3 shall not thereafter be entitled to vote, to
exercise any other rights of a Unitholder or to receive
payment of any distributions with respect thereto, except
the right to receive payment for his or her Units
pursuant to the provisions of Section 7.3 hereof, the
right to receive distributions payable to the Dissenting
Unitholders on or prior to the Effective Date and the
right to maintain an appropriate action to obtain relief
on the grounds that the Merger would be or was fraudulent
or unfair, and the respective Units for which payment has
been demanded shall not thereafter be considered
outstanding for the purposes of any subsequent vote of
Unitholders.
(b) Any Dissenting Unitholder who has demanded
payment for his or her Units in accordance with Section
7.3 hereof may withdraw such demand by delivering to the
Company a written notice of such withdrawal and a consent
to the Merger; provided that (i) no such demand may be
withdrawn after payment for his or her Units and (ii) any
such notice of withdrawal delivered later than 30 days
after the Effective Time shall not be effective without
the consent of the Company; provided, further, that if
any such notice of withdrawal is delivered after any
petition has been filed pursuant to Section 7.3 hereof
asking for a finding and determination of the Fair Value
of such Units, dismissal of the appraisal proceeding with
respect to such Units shall be subject to approval by the
Chancery Court or, if applicable, the Special Appraiser.
If, however, such demand shall be withdrawn as
hereinbefore provided, or if no petition asking for a
finding and determination of Fair Value of such Units by
the Chancery Court shall have been filed within the time
provided in Section 7.3 hereof, or if after the hearing
of a petition filed pursuant to Section 7.3 hereof, the
Chancery Court shall determine that such Unitholder is
not entitled to the relief provided by Section 7.3
hereof, then, in any such case, such Unitholder and all
persons claiming under him or her shall be bound by the
Merger and entitled to receive the Conversion
Consideration, the right of such Unitholder to be paid
the Fair Value of his or her Units shall cease, and his
or her status as a Unitholder of Units exchanged in the
Merger shall be restored without prejudice to any
proceedings that may have been taken by the Company
during the interim, and such Unitholder shall be entitled
to receive any distributions made with respect to such
Conversion Consideration in the interim.
(c) The provisions of Sections 7.3 and 7.4
hereof relating to the procedures to be followed to
determine the Fair Value of the Units shall be conformed
as nearly as practicable to the procedure required to be
followed in connection with the exercise of dissenters'
rights by a stockholder of a corporation formed under the
DGCL as set forth in Section 262 of the DGCL. In the
event that such procedures cannot be followed, then the
Company shall implement alternative procedures designed
to produce results substantially similar to those that
would be effected if Section 262 of the DGCL applied to
the Merger.
ARTICLE VIII
THE CLOSINGS
Section 8.1 The Closings. Each of the
Transactions set forth herein and each of the closings of
such Transactions as set forth below are contingent upon,
and shall not be consummated unless, all of the
Transactions set forth herein and all of the closings of
such Transactions as set forth below are consummated as
provided herein.
(a) Upon the terms and conditions hereof, the
closing of the transactions contemplated by Article I
hereof (the "First Closing") shall take place at the
offices of Simpson Thacher & Bartlett, 425 Lexington
Avenue, New York, NY 10017 (the "Place of Closing") at
10:00 a.m., New York City time, on the Meeting Date, or
at such other date, time and place as the Company and the
Partnership GP shall agree (the "Closing Date").
(b) The closing of the transactions
contemplated by Article II hereof (the "Second Closing")
shall take place at the Place of Closing on the Closing
Date promptly following consummation of the First
Closing.
(c) The closing of the transactions
contemplated by Article III hereof (the "Third Closing")
shall take place at the Place of Closing on the Closing
Date promptly following consummation of the Second
Closing.
(d) The closing of the transactions
contemplated by Article IV hereof (the "Fourth Closing")
shall take place at the Place of Closing on the Closing
Date promptly following consummation of the Third
Closing.
(e) The closing of the transactions
contemplated by Article V hereof (the "Fifth Closing")
shall take place at the Place of Closing on the Closing
Date promptly following consummation of the Fourth
Closing.
(f) The closing of the transactions
contemplated by Article VI hereof (the "Sixth Closing")
shall take place at the Place of Closing on the Closing
Date promptly following consummation of the Fifth
Closing.
Section 8.2 Deliveries at the First Closing.
At the First Closing, EIPCC shall cause the PICC Merger
to become effective pursuant to Article I hereof, and
shall execute, deliver and file, or cause to be executed,
delivered and filed, all such other documents,
instruments or writings required to effect the PICC
Merger, required to be delivered pursuant to this
Agreement or otherwise required in connection herewith.
Section 8.3 Deliveries at the Second Closing.
(a) At the Second Closing, the EIPCC
Stockholders shall deliver or cause to be delivered
(unless previously delivered) the following to the
Company:
(i) stock certificates representing the
EIPCC Common Stock accompanied by stock powers duly
endorsed in blank or accompanied by duly executed
instruments of transfer, with all necessary transfer tax
and other revenue stamps affixed thereto;
(ii) the stock books, stock ledgers,
minute books and corporate seal of EIPCC and PICC;
(iii) written resignations of all
directors and officers of EIPCC and PICC; and
(iv) all other documents, instruments and
writings required to be delivered by the EIPCC
Stockholders to the Company pursuant to this Agreement or
otherwise required in connection herewith.
(b) At the Second Closing, the Company shall
deliver or cause to be delivered (unless previously
delivered) the following to the EIPCC Stockholders:
(i) one or more unlegended certificates,
in definitive form and registered in the names of the
EIPCC Stockholders or their assignees, representing the
shares of the Company Common Stock to be issued to them
pursuant to Section 2.1(b) hereof; provided, that, in the
event any transfer or other taxes become payable by
reason of the issuance of any certificate representing
Company Common Stock in any name other than that of a
EIPCC Stockholder, such assignee must pay such tax to the
Company or must establish to the satisfaction of the
Company that such tax has been paid or is not payable;
and
(ii) all other documents, instruments and
writings required to be delivered by the Company to the
EIPCC Stockholders pursuant to this Agreement or
otherwise required in connection herewith.
Section 8.4 Deliveries at the Third Closing.
(a) At the Third Closing, the Partnership GP
Partners shall deliver or cause to be delivered (unless
previously delivered) to the Company duly executed
assignments of the Partnership GP Interests; and EIPCC
shall deliver to the Company, (i) written resignations
of all directors and officers of the Partnership GP (or
of the individuals holding similar offices or performing
comparable functions at the Partnership GP); and (ii) all
other documents, instruments and writings required to be
delivered by the Partnership GP Partners to the Company
pursuant to this Agreement or otherwise required in
connection herewith.
(b) At the Third Closing, the Company shall
deliver or cause to be delivered (unless previously
delivered) the following to the Partnership GP Partners:
(i) one or more unlegended certificates,
in definitive form and registered in the names of the
Partnership GP Partners or their assignees, representing
the shares of Company Common Stock to be issued to them
pursuant to Section 3.1(b) hereof; provided, that, in the
event any transfer or other taxes become payable by
reason of the issuance of any certificate representing
Company Common Stock in any name other than that of a
Partnership GP Partner, such assignee must pay such tax
to the Company or must establish to the satisfaction of
the Company that such tax has been paid or is not
payable; and
(ii) all other documents, instruments and
writings required to be delivered by the Company, to the
Partnership GP Partners pursuant to this Agreement or
otherwise required in connection herewith.
Section 8.5 Deliveries at the Fourth Closing.
(a) At the Fourth Closing, the Operating
Partnership GP Partners shall deliver or cause to be
delivered (unless previously delivered) to the Company
duly executed assignments of the Operating Partnership GP
Interests; and EIPCC shall deliver to the Company (i)
written resignations of all directors and officers of the
Operating Partnership GP (or of the individuals holding
similar offices or performing comparable functions at the
Operating Partnership GP); and (ii) all other documents,
instruments and writings required to be delivered by the
Operating Partnership GP Partners to the Company pursuant
to this Agreement or otherwise required in connection
herewith.
(b) At the Fourth Closing, the Company shall
deliver or cause to be delivered (unless previously
delivered) the following to the Operating Partnership GP
Partners:
(i) one or more unlegended certificates,
in definitive form and registered in the names of the
Operating Partnership GP Partners or their assignees,
representing the shares of Company Common Stock to be
issued to them pursuant to Section 4.1(b) hereof;
provided, that, in the event any transfer or other taxes
become payable by reason of the issuance of any
certificate representing Company Common Stock in any name
other than that of a Operating Partnership GP Partner,
such assignee must pay such tax to the Company or must
establish to the satisfaction of the Company that such
tax has been paid or is not payable; and
(ii) all other documents, instruments and
writings required to be delivered by the Company, to the
Operating Partnership GP Partners pursuant to this
Agreement or otherwise required in connection herewith.
Section 8.6 Deliveries at the Fifth Closing.
(a) At the Fifth Closing, the Company and
EIPCC shall execute, deliver and file, or cause to be
executed, delivered and filed, all such documents,
instruments or writings required to effect the formation
of PTP as set forth in Section 5.1 hereof, required to be
delivered pursuant to this Agreement or otherwise
required in connection herewith.
(b) At the Fifth Closing, immediately
following consummation of the deliveries set forth in
clause (a) above, the Partnership shall cause the Merger
to become effective pursuant to Article V hereof, and
shall execute, deliver and file, or cause to be executed,
delivered and filed, all such other documents,
instruments or writings required to effect the Merger,
required to be delivered pursuant to this Agreement or
otherwise required in connection herewith, and shall
return the Company s and EIPCC s capital contributions in
PTP.
Section 8.7 Deliveries at the Sixth Closing.
At the Sixth Closing, the Partnership shall cause the
Operating Partnership Merger to become effective pursuant
to Article VI hereof, and shall execute, deliver and
file, or cause to be executed, delivered and filed, all
such other documents, instruments or writings required to
effect the Operating Partnership Merger, required to be
delivered pursuant to this Agreement or otherwise
required in connection herewith.
ARTICLE IX
JOINT AND SEVERAL
REPRESENTATIONS AND WARRANTIES OF
CERTAIN PARTNERSHIP ENTITIES
The Partnership, the Operating Partnership, the
Partnership GP, the Operating Partnership GP, PICC, EIPCC
and Victor K. Atkins, Jr., as general partner of the
Partnership GP and the Operating Partnership GP, jointly
and severally represent and warrant to the Company as
follows:
Section 9.1 Organization. Each of the
Partnership and the Operating Partnership is a limited
partnership duly organized, validly existing and in good
standing under the limited partnership laws of the
jurisdiction of its organization and has all requisite
partnership power and authority to own, lease and operate
its properties and to carry on its business as now being
conducted, except where the failure to be so organized,
existing and in good standing or to have such power and
authority would not have a material adverse effect on the
Partnership and the Operating Partnership taken as a
whole. As used in this Agreement, any reference to any
event, change or effect being material or having a
material adverse effect on or with respect to an entity
(or group of entities taken as a whole) means such event,
change or effect is materially adverse to the business,
properties, assets, results of operations, financial
condition or prospects of such entity (or such group of
entities taken as a whole) or the ability of such entity
(or such group of entities) to consummate any of the
Transactions in accordance with this Agreement.
Section 9.2 Capitalization. As of the date
hereof, (a)(i) 16,010,441 Units are issued and
outstanding and (ii) the Partnership GP is the sole
general partner in the Partnership and (b)(i) all the
limited partnership interests in the Operating
Partnership are validly issued and owned by the
Partnership free and clear of all Liens and (ii) the
Operating Partnership GP is the sole general partner in
the Operating Partnership. As of the date hereof 534,503
Units were reserved for issuance upon the exercise of
rights ("First Rights") pursuant to the Operating
Partnership's 1987 Employee Ownership Plan (the "Employee
Plan") and 1987 Management Ownership Plan (the
"Management Plan" and together with the Employee Plan,
the "Partnership Plans") and First Rights in respect of
312,500 Units have been granted and are outstanding. As
of the date hereof, no bonds, debentures, notes or other
indebtedness having the right to vote (or convertible
into securities having the right to vote) ("Voting Debt")
of the Partnership or the Operating Partnership are
issued or outstanding. Except as set forth above, there
are no existing options, warrants, calls, subscriptions
or other rights or other agreements or commitments of any
character relating to the issued or unissued Units or
other partnership interests or Voting Debt of the
Partnership or the Operating Partnership or obligating
the Partnership or the Operating Partnership to issue,
transfer or sell or cause to be issued, transferred or
sold any Units or other partnership interests or Voting
Debt of, or other equity interests in, the Partnership or
the Operating Partnership or securities convertible into
or exchangeable for such Units or other partnership
interests or equity interests or obligating the
Partnership or the Operating Partnership to grant, extend
or enter into any such option, warrant, call,
subscription or other right, agreement or commitment.
There are no outstanding contractual obligations of the
Partnership or the Operating Partnership to repurchase,
redeem or otherwise acquire any Units or other
partnership interests of the Partnership or the Operating
Partnership.
Section 9.3 Authority. Each of the
Partnership and the Operating Partnership has the
requisite partnership power and authority to execute and
deliver this Agreement and to consummate the Transactions
contemplated hereby (other than, with respect to the
Merger, the approval and adoption of the proposal to
effect the Conversion (the "Conversion Proposal") by the
required vote of the Unitholders). The execution,
delivery and performance of this Agreement by each of the
Partnership and the Operating Partnership and the
consummation by the Partnership and the Operating
Partnership of the Transactions contemplated hereby have
been duly authorized by all necessary partnership action
on the part of the Partnership and the Operating
Partnership and no other partnership action on the part
of the Partnership or the Operating Partnership is
necessary to authorize this Agreement or to consummate
the Transactions so contemplated (other than, with
respect to the Merger, the approval and adoption of the
Conversion Proposal by the required vote of the
Unitholders). This Agreement has been duly executed and
delivered by the Partnership and the Operating
Partnership.
ARTICLE X
SEVERAL REPRESENTATIONS AND
WARRANTIES OF CERTAIN PARTNERSHIP ENTITIES
Section 10.1 Representations and Warranties of
the EIPCC Stockholders. Mr. Atkins represents and
warrants to the Company with respect to clauses (a), (b),
(c)(ii), (d) (to the extent applicable to EIPCC or PICC),
(e) and (g) of this Section 10.1 and each of the EIPCC
Stockholders severally and not jointly represents and
warrants to the Company with respect to clauses (c)(i),
(d) (to the extent applicable to the EIPCC Stockholders)
and (f) of this Section 10.1, as follows:
(a) Organization. Each of EIPCC and PICC is a
corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its
incorporation and has all requisite corporate power and
authority to own, lease and operate its properties and to
carry on its business as now being conducted except where
the failure to be so organized, existing and in good
standing or to have such power and authority would not
have a material adverse effect on EIPCC and PICC. The
EIPCC Stockholders will provide the Company with true and
correct copies of the Certificate of Incorporation and
By-laws of EIPCC and PICC, together with all amendments
thereto.
(b) Capitalization. As of the date hereof,
(i) the issued and outstanding capital stock of EIPCC
consists of 70 shares of EIPCC Common Stock, and (ii) all
of the issued and outstanding capital stock of PICC (the
"PICC Common Stock") is owned beneficially and of record
by EIPCC. No Voting Debt of EIPCC or PICC is issued or
outstanding. Except for this Agreement, there are no
options, warrants, calls, subscriptions or other rights
or other agreements or commitments of any character
relating to the issued or unissued capital stock or
Voting Debt of EIPCC or PICC or obligating EIPCC or PICC
to issue, transfer or sell or cause to be issued,
transferred or sold any shares of capital stock or Voting
Debt of, or other equity or partnership interests in,
EIPCC or PICC or of any of their Subsidiaries or
securities convertible into or exchangeable for such
shares or equity interests or obligating EIPCC or PICC to
grant, extend or enter into any such option, warrant,
call, subscription or other right, agreement or
commitment.
(c) Authority. (i) Such EIPCC Stockholder has
the requisite power and authority and full legal capacity
to execute, deliver and perform this Agreement and to
consummate the Transactions contemplated hereby. This
Agreement has been duly executed and delivered by such
EIPCC Stockholder and assuming this Agreement constitutes
a valid and binding obligation of the Company,
constitutes a valid and binding obligation of such EIPCC
Stockholder enforceable against such person in accordance
with its terms.
(ii) Each of EIPCC and PICC has requisite
corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated
hereby. The execution, delivery and performance of this
Agreement by each of EIPCC and PICC and the consummation
by each of EIPCC and PICC of the Transactions
contemplated hereby have been duly authorized by all
necessary corporate action on the part of each of EIPCC
and PICC and no other corporate proceedings on the part
of EIPCC or PICC is necessary to authorize this Agreement
or to consummate the transactions so contemplated. This
Agreement has been duly executed and delivered by each of
EIPCC and PICC and assuming this Agreement constitutes a
valid and binding obligation of the Company, constitutes
a valid and binding obligation of each of EIPCC and PICC
enforceable against it in accordance with its terms.
(d) Consents and Approvals; No Violations.
Except for filings, permits, authorizations, consents and
approvals as may be required under, and other applicable
requirements of, the Exchange Act, the Securities Act,
state securities or blue sky laws, the HSR Act, the DGCL,
the DRULPA, the laws of other states in which EIPCC is
qualified to do or is doing business, neither the
execution, delivery or performance of this Agreement by
such EIPCC Stockholder nor the consummation by such EIPCC
Stockholder of the transactions contemplated hereby nor
compliance by such EIPCC Stockholder with any of the
provisions hereof will (i) conflict with or result in any
breach of any provision of the certificate of
incorporation or by-laws of EIPCC, (ii) require any
filing with, or permit, authorization, consent or
approval of, any Governmental Entity (except where the
failure to obtain such permits, authorizations, consents
or approvals or to make such filings would not have a
material adverse effect on such EIPCC Stockholder, EIPCC
or PICC), (iii) result in a violation or breach of, or
constitute (with or without due notice or lapse of time
or both) a default (or give rise to any right of
termination, cancellation or acceleration) under, any of
the terms, conditions or provisions of any note, bond,
mortgage, indenture, license, lease, contract, agreement
or other instrument or obligation to which such EIPCC
Stockholder, EIPCC or PICC is a party or by which any of
them or any of their properties or assets may be bound or
(iv) violate any order, writ, injunction, decree,
statute, rule or regulation applicable to such EIPCC
Stockholder, EIPCC or PICC, except, in the case of
clauses (iii) or (iv), for violations, breaches or
defaults which would not, individually or in the
aggregate, have a material adverse effect on such EIPCC
Stockholder, EIPCC or PICC; provided, however, the
representations in this clause (d) shall apply to the
EIPCC Stockholders in their individual capacity only and
shall not be deemed to apply to such EIPCC Stockholders
in any other capacity.
(e) Subsidiaries; Units. (i) Other than PICC,
the Operating Partnership GP, the Operating Partnership
and wholly owned Subsidiaries of the Operating
Partnership, EIPCC has no Subsidiaries. EIPCC owns its
direct and indirect interests in PICC, the Operating
Partnership GP and the Operating Partnership free and
clear of any and all Liens. EIPCC does not own, and
prior to the Effective Time will not acquire, any Units.
(ii) Other than the Operating Partnership
GP and the Operating Partnership and wholly owned
Subsidiaries of the Operating Partnership, PICC has no
Subsidiaries. PICC owns its general partnership interest
in the Operating Partnership GP free and clear of any and
all Liens. PICC does not own, and prior to the Effective
Time will not acquire, any Units.
(f) Ownership of Shares; Title. Such EIPCC
Stockholder is the owner of record and beneficially of
the shares of EIPCC Common Stock set forth opposite such
EIPCC Stockholder's name on Annex III hereto. Such EIPCC
Stockholder has not received any notice of any adverse
claim to the ownership of any such EIPCC Common Stock and
does not have any reason to know of any such adverse
claim that may be justified. On the Closing Date, such
EIPCC Stockholder shall have good and transferable title
to the EIPCC Common Stock set forth opposite such EIPCC
Stockholder's name on Annex III hereto, free and clear of
all Liens. The delivery of certificates for the EIPCC
Common Stock owned by such EIPCC Stockholder to the
Company pursuant to this Agreement will transfer to the
Company good and transferable title to the EIPCC Common
Stock set forth opposite such EIPCC Stockholder's name on
Annex III hereto free and clear of all Liens.
(g) No Liabilities. (i) EIPCC has not engaged
in any business or activity of any kind, or entered into
any agreement or arrangement with any person or entity,
except, in each case, in connection with its ownership of
100% of the capital stock of PICC and serving as managing
general partner of the Partnership GP. EIPCC has not
incurred, directly or indirectly, any liabilities or
obligations, except for liabilities or obligations
incurred by EIPCC acting in its capacity as managing
general partner of the Partnership GP (such liabilities
being referred to as "Partnership GP Liabilities").
(ii) PICC has not engaged in any business
or activity of any kind, or entered into any agreement or
arrangement with any person or entity except, in each
case, in connection with serving as a general partner of
the Operating Partnership GP. PICC has not incurred,
directly or indirectly, any liabilities or obligations,
except for liabilities or obligations incurred by PICC
acting in its capacity as general partner of the
Operating Partnership GP (such liabilities being herein
referred to as "Operating Partnership GP Liabilities").
Section 10.2 Representations and Warranties of
the Partnership GP Partners. Mr. Atkins represents and
warrants to the Company with respect to clauses (a), (b),
(d) (to the extent applicable to the Partnership GP), (e)
and (g) of this Section 10.2 and each of the Partnership
GP Partners severally and not jointly represents and
warrants to the Company with respect to clauses (c), (d)
(to the extent applicable to such Partnership GP Partner)
and (f) of this Section 10.2, as follows:
(a) Organization. The Partnership GP is a
limited partnership duly organized, validly existing and
in good standing under the laws of the jurisdiction of
its organization and has all requisite power and
authority to own, lease and operate its properties and to
carry on its business as now being conducted except where
the failure to be so organized, existing and in good
standing or to have such power and authority would not
have a material adverse effect on the Partnership GP.
The Partnership GP will provide the Company with true and
correct copies of the partnership agreement and
certificate of limited partnership of the Partnership GP,
together with all amendments thereto.
(b) Capitalization. Annex I hereto sets forth
all of the outstanding Partnership GP Interests. No
Voting Debt of the Partnership GP is issued or
outstanding. Except for this Agreement, there are no
options, warrants, calls, subscriptions or other rights
or other agreements or commitments of any character
relating to the issued or unissued partnership interests
or Voting Debt of the Partnership GP or obligating the
Partnership GP to issue, transfer or sell or cause to be
issued, transferred or sold any partnership interests or
Voting Debt of, or other equity interests in, the
Partnership GP or of any of its Subsidiaries or
securities convertible into or exchangeable for such
partnership interests or equity interests or obligating
the Partnership GP to grant, extend or enter into any
such option, warrant, call, subscription or other right,
agreement or commitment.
(c) Authority. Such Partnership GP Partner
has the requisite power and authority to execute, deliver
and perform this Agreement and to consummate the
Transactions contemplated hereby. The execution,
delivery and performance of this Agreement by such
Partnership GP Partner and the consummation of the
Transactions contemplated hereby, have been duly
authorized by all necessary action on the part of such
Partnership GP Partner, as applicable, and no other
action on the part of such Partnership GP Partner is
necessary to authorize this Agreement or to consummate
the transactions so contemplated. This Agreement has
been duly executed and delivered by such Partnership GP
Partner and assuming this Agreement constitutes a valid
and binding obligation of the Company, constitutes a
valid and binding obligation of such Partnership GP
Partner enforceable against it in accordance with its
terms.
(d) Consents and Approvals; No Violations.
Except for filings, permits, authorizations, consents and
approvals as may be required under, and other applicable
requirements of, the Exchange Act, the Securities Act,
state securities or blue sky laws, the HSR Act, the DGCL,
the DRULPA, the laws of other states in which the
Partnership GP is qualified to do or is doing business,
neither the execution, delivery or performance of this
Agreement by such Partnership GP Partner nor the
consummation by such Partnership GP Partner of the
transactions contemplated hereby nor compliance by such
Partnership GP Partner with any of the provisions hereof
will (i) conflict with or result in any breach of any
provision of the partnership agreement of the Partnership
GP or such Partnership GP Partner, as applicable, or the
certificate of incorporation or by-laws of such
Partnership GP Partner, as applicable, (ii) require any
filing with, or permit, authorization, consent or
approval of, any Governmental Entity (except where the
failure to obtain such permits, authorizations, consents
or approvals or to make such filings would not have a
material adverse effect on such Partnership GP Partner or
the Partnership GP), (iii) result in a violation or
breach of, or constitute (with or without due notice or
lapse of time or both) a default (or give rise to any
right of termination, cancellation or acceleration)
under, any of the terms, conditions or provisions of any
note, bond, mortgage, indenture, license, lease,
contract, agreement or other instrument or obligation to
which such Partnership GP Partner or the Partnership GP
is a party or by which any of them or any of their
properties or assets may be bound or (iv) violate any
order, writ, injunction, decree, statute, rule or
regulation applicable to such Partnership GP Partner or
the Partnership GP, except, in the case of clauses (iii)
or (iv), for violations, breaches or defaults which would
not, individually or in the aggregate, have a material
adverse effect on such Partnership GP Partner or the
Partnership GP; provided, however, the representations in
this clause (d) shall apply to the Partnership GP
Partners in their individual capacity only and shall not
be deemed to apply to such Partnership GP Partners in any
other capacity.
(e) Subsidiaries; Units. Other than the
Partnership, the Operating Partnership and wholly owned
Subsidiaries of the Operating Partnership, the
Partnership GP has no Subsidiaries. The Partnership GP
owns its partnership interest in the Partnership free and
clear of any and all Liens. The Partnership GP does not
own, and prior to the Effective Time will not acquire,
any Units.
(f) Ownership of Partnership Interests; Title.
Such Partnership GP Partner is the owner of record and
beneficially of the Partnership GP Interests set forth
opposite such Partnership GP Partner's name on Annex I
hereto. Such Partnership GP Partner has not received any
notice of any adverse claim to the ownership of any such
Partnership GP Interests and does not have any reason to
know of any such adverse claim that may be justified. On
the Closing Date, such Partnership GP Partner shall have
good and transferable title to the Partnership GP
Interests set forth opposite such Partnership GP
Partner's name on Annex I hereto, free and clear of all
Liens. The delivery of assignments for the Partnership
GP Interests owned by such Partnership GP Partners to the
Company pursuant to this Agreement will transfer to the
Company good and transferable title to the Partnership GP
Interests set forth opposite such Partnership GP
Partner's name on Annex I hereto free and clear of all
Liens.
(g) No Liabilities. The Partnership GP has
not engaged in any business or activity of any kind, or
entered into any agreement or arrangement with any person
or entity, except in each case in connection with serving
as the general partner of the Partnership. The
Partnership GP has not incurred, directly or indirectly,
any liabilities or obligations, except for liabilities or
obligations incurred by the Partnership GP acting in its
capacity as general partner of the Partnership (such
liabilities being herein referred to as "Partnership
Liabilities").
Section 10.3 Representations and Warranties of
the Operating Partnership GP Partners. Mr. Atkins
represents and warrants to the Company with respect to
clauses (a), (b), (d) (to the extent applicable to the
Operating Partnership GP), (e) and (g) of this Section
10.3 and each of the Operating Partnership GP Partners
severally and not jointly represents and warrants to the
Company with respect to clauses (c), (d) (to the extent
applicable to such Operating Partnership GP Partner) and
(f) of this Section 10.3, as follows:
(a) Organization. The Operating Partnership
GP is a limited partnership duly organized, validly
existing and in good standing under the laws of the
jurisdiction of its organization and has all requisite
power and authority to own, lease and operate its
properties and to carry on its business as now being
conducted except where the failure to be so organized,
existing and in good standing or to have such power and
authority would not have a material adverse effect on the
Operating Partnership GP. The Operating Partnership GP
will provide the Company with true and correct copies of
the partnership agreement and certificate of limited
partnership of the Operating Partnership GP, together
with all amendments thereto.
(b) Capitalization. Annex II hereto sets
forth all of the outstanding Operating Partnership GP
Interests. No Voting Debt of the Operating Partnership
GP is issued or outstanding. Except for this Agreement,
there are no existing options, warrants, calls,
subscriptions or other rights or other agreements or
commitments of any character relating to the issued or
unissued partnership interests or Voting Debt of the
Operating Partnership GP or obligating the Operating
Partnership GP to issue, transfer or sell or cause to be
issued, transferred or sold any partnership interests or
Voting Debt of, or other equity interests in, the
Operating Partnership GP or of any of its Subsidiaries or
securities convertible into or exchangeable for such
partnership interests or equity interests or obligating
the Operating Partnership GP to grant, extend or enter
into any such option, warrant, call, subscription or
other right, agreement or commitment.
(c) Authority. Such Operating Partnership GP
Partner has the requisite power and authority to execute,
deliver and perform this Agreement and to consummate the
Transactions contemplated hereby. The execution,
delivery and performance of this Agreement by such
Operating Partnership GP Partner and the consummation of
the Transactions contemplated hereby, have been duly
authorized by all necessary action on the part of such
Operating Partnership GP Partner, as applicable, and no
other action on the part of such Operating Partnership GP
Partner is necessary to authorize this Agreement or to
consummate the transactions so contemplated. This
Agreement has been duly executed and delivered by such
Operating Partnership GP Partner and assuming this
Agreement constitutes a valid and binding obligation of
the Company, constitutes a valid and binding obligation
of such Operating Partnership GP Partner enforceable
against it in accordance with its terms.
(d) Consents and Approvals; No Violations.
Except for filings, permits, authorizations, consents and
approvals as may be required under, and other applicable
requirements of, the Exchange Act, the Securities Act,
state securities or blue sky laws, the HSR Act, the DGCL,
the DRULPA, the laws of other states in which the
Operating Partnership GP is qualified to do or is doing
business, neither the execution, delivery or performance
of this Agreement by such Operating Partnership GP
Partner nor the consummation by such Operating
Partnership GP Partner of the transactions contemplated
hereby nor compliance by the Operating Partnership GP
Partner with any of the provisions hereof will (i)
conflict with or result in any breach of any provision of
the partnership agreement of the Operating Partnership
GP, or the certificate of incorporation or by-laws of
such Operating Partnership GP Partner, as applicable,
(ii) require any filing with, or permit, authorization,
consent or approval of, any Governmental Entity (except
where the failure to obtain such permits, authorizations,
consents or approvals or to make such filings would not
have a material adverse effect on such Operating
Partnership GP Partner or the Operating Partnership GP),
(iii) result in a violation or breach of, or constitute
(with or without due notice or lapse of time or both) a
default (or give rise to any right of termination,
cancellation or acceleration) under, any of the terms,
conditions or provisions of any note, bond, mortgage,
indenture, license, lease, contract, agreement or other
instrument or obligation to which such Operating
Partnership GP Partner or the Operating Partnership GP is
a party or by which any of them or any of their
properties or assets may be bound or (iv) violate any
order, writ, injunction, decree, statute, rule or
regulation applicable to such Operating Partnership GP
Partner or the Operating Partnership GP, except, in the
case of clauses (iii) or (iv), for violations, breaches
or defaults which would not, individually or in the
aggregate, have a material adverse effect on such
Operating Partnership GP Partner or the Operating
Partnership GP; provided, however, the representations in
this clause (d) shall apply to the Operating Partnership
GP Partners in their individual capacity only and shall
not be deemed to apply to such Operating Partnership GP
Partners in any other capacity.
(e) Subsidiaries; Units. Other than the
Operating Partnership and wholly owned Subsidiaries of
the Operating Partnership, the Operating Partnership GP
has no Subsidiaries. The Operating Partnership GP owns
its general partnership interest in the Operating
Partnership free and clear of any and all Liens. The
Operating Partnership GP does not own, and prior to the
Effective Time will not acquire, any Units.
(f) Ownership of Partnership Interests; Title.
Such Operating Partnership GP Partner is the owner of
record and beneficially of the Operating Partnership GP
Interests set forth opposite such Operating Partnership
GP Partner's name on Annex II hereto. Such Operating
Partnership GP Partner has not received any notice of any
adverse claim to the ownership of any such Operating
Partnership GP Interests and does not have any reason to
know of any such adverse claim that may be justified. On
the Closing Date, such Operating Partnership GP Partner
shall have good and transferable title to the Operating
Partnership GP Interests set forth opposite such
Operating Partnership GP Partner's name on Annex II
hereto, free and clear of all Liens. The delivery of
assignments for the Operating Partnership GP Interests
owned by such Operating Partnership GP Partner to the
Company pursuant to this Agreement will transfer to the
Company good and transferable title to the Operating
Partnership GP Interest set forth opposite such Operating
Partnership GP Partner's name on Annex II hereto, free
and clear of all Liens.
(g) No Liabilities. The Operating Partnership
GP has not engaged in any business or activity of any
kind, or entered into any agreement or arrangement with
any person or entity, except, in each case, in connection
with serving as the general partner of the Operating
Partnership. The Operating Partnership GP has not
incurred, directly or indirectly, any liabilities or
obligations, except for liabilities or obligations
incurred by the Operating Partnership GP acting in its
capacity as general partner of the Operating Partnership
(such liabilities being herein referred to as "Operating
Partnership Liabilities").
ARTICLE XI
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the
Partnership Entities as follows:
Section 11.1 Organization. The Company is a
corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its
incorporation and has all requisite corporate power and
authority to own, lease and operate its properties and to
carry on its business as now being conducted and as
contemplated to be conducted following the Conversion,
except where the failure to be so organized, existing and
in good standing or to have such power and authority
would not have a material adverse effect on the Company.
Section 11.2 Capitalization. As of the date
hereof, the authorized capital stock of the Company
consists of: (i) 80,000,000 shares of Company Common
Stock, of which 3,000 shares were issued and outstanding
and none of which were held in treasury; and (ii)
20,000,000 shares of preferred stock, par value $.01 per
share, none of which are issued and outstanding. All the
outstanding shares of the Company's capital stock are,
and all shares of Company Common Stock which are to be
issued to Unitholders pursuant to the Merger or issued to
the Transferors pursuant to the Transactions set forth in
this Agreement, or which may be issued pursuant to the
Partnership Plans after the Merger will be, when issued
in accordance with the respective terms thereof, duly
authorized, validly issued, fully paid and non-assessable
and free of any preemptive rights in respect thereto. No
Voting Debt of the Company is issued or outstanding.
Except as set forth above and except for shares of
Company Common Stock that may be issued pursuant to the
Partnership Plans and except for this Agreement, there
are no existing options, warrants, calls, subscriptions
or other rights or other agreements or commitments of any
character relating to the issued or unissued capital
stock or Voting Debt of the Company or obligating the
Company to issue, transfer or sell or cause to be issued,
transferred or sold any shares of capital stock or Voting
Debt of, or other equity interests in, the Company or
securities convertible into or exchangeable for such
shares or equity interests or obligating the Company to
grant, extend or enter into any such option, warrant,
call, subscription or other right, agreement or
commitment.
Section 11.3 Authority. The Company has the
requisite corporate power and authority to execute and
deliver this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and
performance of this Agreement by the Company and the
consummation by the Company of the Merger and the other
Transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part
of the Company and no other corporate proceedings on the
part of the Company are necessary to authorize this
Agreement or to consummate the transactions so
contemplated. This Agreement has been duly executed and
delivered by the Company and assuming this Agreement
constitutes a valid and binding obligation of the
Partnership Entities, constitutes a valid and binding
obligation of the Company enforceable against it in
accordance with its terms.
Section 11.4 No Activity. The Company has not
engaged in any business or activity of any kind, or
entered into any agreement or arrangement with any person
or entity or incurred, directly or indirectly, any
material liabilities or obligations, except in connection
with its incorporation and capitalization, the Merger and
the other Transactions and the negotiation of this
Agreement. The Company owns at least 3,000 Units.
ARTICLE XII
COVENANTS
Section 12.1 Conduct of Business of Certain
Partnership Entities.
(a) Conduct of Business of the Operating
Partnership and the Partnership. Except as contemplated
by this Agreement and the transactions contemplated
hereby, or with the prior written consent of the Company,
and subject to the provisions of Section 16.1 hereof,
during the period from the date of this Agreement to the
Effective Time, the Operating Partnership and the
Partnership each will conduct its operations only in the
ordinary and usual course of business consistent with
past practice and not take any action that would or is
reasonably likely to result in any of the conditions to
the Transactions set forth in Article XIII not being
satisfied or would materially impair the ability of such
party to consummate any of the Transactions in accordance
with the terms hereof or materially delay such
consummation.
(b) Conduct of Business of PICC and EIPCC.
Except as contemplated by this Agreement and the
transactions contemplated hereby, or with the prior
written consent of the Company, during the period from
the date of this Agreement to the Effective Time, the
EIPCC Stockholders will not, directly or indirectly,
sell, transfer, pledge or otherwise convey all or any
part of their interest in EIPCC or PICC, or take any
action that would or is reasonably likely to result in
any of the conditions to the Transactions set forth in
Article XIII not being satisfied or would materially
impair the ability of such party to consummate any of the
Transactions in accordance with the terms hereof or
materially delay such consummation. Except as otherwise
expressly provided in this Agreement and the transactions
contemplated hereby, EIPCC and PICC, prior to the
Effective Time, without the prior written consent of the
Company, will not:
(i) adopt any amendment to its
certificate of incorporation or by-laws;
(ii) issue, reissue, sell, deliver or
pledge or authorize or propose the issuance, reissuance,
sale, delivery or pledge of additional shares of capital
stock of any class or securities convertible into capital
stock of any class, or any rights, warrants or options to
acquire any of the foregoing;
(iii) adjust, split, combine, subdivide,
reclassify or redeem, purchase or otherwise acquire, or
propose to redeem or purchase or otherwise acquire, any
shares of its capital stock or any of its other
securities; or
(iv) sell, lease, transfer, pledge or
dispose of EIPCC's interest in PICC or PICC's interest in
the Operating Partnership GP.
(c) Conduct of Business of the
Partnership GP. Except as contemplated by this Agreement
and the transactions contemplated hereby, or with the
prior written consent of the Company, during the period
from the date of this Agreement to the Effective Time,
the Partnership GP Partners will not, directly or
indirectly, sell, transfer, pledge or otherwise convey
all or any part of their interest in the Partnership GP,
or take any action that would or is reasonably likely to
result in any of the conditions to the Transactions set
forth in Article XIII not being satisfied or would
materially impair the ability of such party to consummate
any of the Transactions in accordance with the terms
hereof or materially delay such consummation. Except as
otherwise expressly provided in this Agreement and the
transactions contemplated hereby, the Partnership GP,
prior to the Effective Time, without the prior written
consent of the Company, will not:
(i) adopt any amendment to its
partnership agreement;
(ii) issue, reissue, sell, deliver or
pledge or authorize or propose the issuance, reissuance,
sale, delivery or pledge of additional Units or other
partnership interests, or securities convertible into
Units or other partnership interests, or any rights,
warrants or options to acquire any of the foregoing;
(iii) adjust, split, combine, subdivide,
reclassify or redeem, purchase or otherwise acquire, or
propose to redeem or purchase or otherwise acquire, any
Units or other partnership interests or any of its other
securities; or
(iv) sell, lease, transfer, pledge or
dispose of the Partnership GP's interest in the
Partnership.
(d) Conduct of Business of the Operating
Partnership GP. Except as contemplated by this Agreement
and the transactions contemplated hereby, or with the
prior written consent of the Company, during the period
from the date of this Agreement to the Effective Time,
the Operating Partnership GP Partners will not, directly
or indirectly, sell, transfer, pledge or otherwise convey
all or any part of their interest in the Operating
Partnership GP, or take any action that would or is
reasonably likely to result in any of the conditions to
the Transactions set forth in Article XIII not being
satisfied or would materially impair the ability of such
party to consummate any of the Transactions in accordance
with the terms hereof or materially delay such
consummation. Except as otherwise expressly provided in
this Agreement and the transactions contemplated hereby,
the Operating Partnership GP, prior to the Effective
Time, without the prior written consent of the Company,
will not:
(i) adopt any amendment to its
partnership agreement;
(ii) issue, reissue, sell, deliver or
pledge or authorize or propose the issuance, reissuance,
sale, delivery or pledge of additional Units or other
partnership interests, or securities convertible into
Units or other partnership interests, or any rights,
warrants or options to acquire any of the foregoing;
(iii) adjust, split, combine, subdivide,
reclassify or redeem, purchase or otherwise acquire, or
propose to redeem or purchase or otherwise acquire, any
Units or other partnership interests or any of its other
securities; or
(iv) sell, lease, transfer, pledge or
dispose of its interest in the Operating Partnership.
Section 12.2 Conduct of Business of the
Company. Prior to the Effective Time, the Company shall
not engage in any business or activity other than in
connection with, or in furtherance of, its
capitalization, the consummation of the Transactions
contemplated hereby and the Conversion generally.
Section 12.3 Reasonable Best Efforts. Subject
to the terms and conditions of this Agreement, each of
the parties hereto agrees to use its reasonable best
efforts to take, or cause to be taken, all actions, and
to do, or cause to be done, all things necessary, proper
or advisable under applicable laws and regulations to
consummate and make effective the transactions
contemplated by this Agreement including, without
limitation, (i) the prompt preparation and filing with
the SEC of the S-4 and the Proxy Statement, (ii) such
actions as may be required to have the S-4 declared
effective under the Securities Act and to have the Proxy
Statement cleared by the SEC, in each case as promptly as
practicable, including by consulting with each other as
to, and responding promptly to, any SEC comments with
respect thereto, and (iii) such actions as may be
required to be taken under applicable state securities or
Blue Sky laws in connection with the issuance of shares
of Company Common Stock contemplated hereby. Each party
shall promptly consult with the other with respect to,
provide any necessary information with respect to and
provide the other (or its counsel) copies of, all filings
made by such party with any Governmental Entity in
connection with this Agreement and the transactions
contemplated hereby. In addition, if at any time prior
to the Effective Time any event or circumstances relating
to any of the parties hereto, or any of their respective
officers, directors, or general partners, should be
discovered by the party hereto, and which should be set
forth in an amendment or supplement to the S-4 or the
Proxy Statement, the discovering party shall promptly
inform the other parties of such event or circumstance.
Section 12.4 Letter of the Partnership's
Accountants. The Partnership shall use its reasonable
best efforts to cause to be delivered to the Partnership
and the Company a letter of McGladrey & Pullen, the
Partnership's independent auditors, dated a date within
two business days before the date on which the S-4 shall
become effective and addressed to the Partnership and the
Company, in form and substance reasonably satisfactory to
the Partnership and the Company and customary in scope
and substance for letters delivered by independent public
accountants in connection with registration statements
similar to the S-4, which letter shall be brought down to
the Effective Time.
Section 12.5 Access to Information. Upon
reasonable notice, the Operating Partnership, the
Partnership, the Partnership GP, the Operating
Partnership GP, PICC, and EIPCC, on the one hand, and the
Company, on the other hand, shall each afford to the
officers, employees, accountants, counsel and other
representatives of the other, access, during normal
business hours during the period prior to the Effective
Time, to all its properties, books, contracts,
commitments and records and, during such period, each of
the Operating Partnership, the Partnership, the
Partnership GP, the Operating Partnership GP, PICC, and
EIPCC and the Company shall furnish promptly to the other
(a) a copy of each report, schedule, registration
statement and other document filed or received by it
during such period pursuant to the requirements of
federal securities laws and (b) all other information
concerning its business, properties and personnel as such
other party may reasonably request. Unless otherwise
required by law, the parties will hold any such
information which is nonpublic in confidence until such
time as such information otherwise becomes publicly
available through no wrongful act of either party, and in
the event of termination of this Agreement for any reason
each party shall promptly return all nonpublic documents
obtained from any other party, and any copies made of
such documents, to such other party.
Section 12.6 Unitholders Meeting. The
Partnership GP shall call a meeting of Unitholders to be
held as promptly as practicable for the purpose of voting
upon the Conversion Proposal and related matters.
Subject to the provisions of Section 16.1 hereof the
Partnership GP will recommend to Unitholders approval of
such matters.
Section 12.7 Legal Conditions to Merger. Each
of the parties hereto will take all reasonable actions
necessary to comply promptly with all legal requirements
which may be imposed on itself with respect to the Merger
and the other Transactions (which actions shall include,
without limitation, furnishing all information required
under the HSR Act and in connection with approvals of or
filings with any Governmental Entity and will promptly
cooperate with and furnish information to each other in
connection with any such requirements imposed upon any of
them in connection with the Merger and the other
Transactions). Each of the parties hereto will take all
reasonable actions necessary to obtain (and will
cooperate with each other in obtaining) any consent,
authorization, order or approval of, or any exemption by,
any Governmental Entity or other public or private third
party, required to be obtained or made by any party
hereto in connection with the Merger or the other
Transactions or the taking of any action contemplated
thereby or by this Agreement.
Section 12.8 Affiliates. Prior to the Closing
Date the Partnership GP shall deliver to the Company a
letter identifying all persons who are, at the time this
Agreement is submitted for approval to the Unitholders of
the Partnership, "affiliates" of the Partnership for
purposes of Rule 145 under the Securities Act. The
Partnership GP shall use its reasonable best efforts to
cause each such person to deliver to the Company on or
prior to the Closing Date executed affiliates' letters in
customary form.
Section 12.9 Stock Exchange Listing. The
Company shall use its reasonable best efforts to cause
the shares of Company Common Stock to be issued in the
Merger to be approved for listing on the American Stock
Exchange (the "ASE") and the Pacific Stock Exchange
("PSE") and any other national securities exchange on
which shares of Company Common Stock may at such time be
listed, subject to official notice of issuance, prior to
the Closing Date. The Units will be delisted at or
immediately after the Effective Time.
Section 12.10 Employee Benefit Plans. The
benefit plans of the Operating Partnership in effect at
the date of this Agreement shall, to the extent
practicable, remain in effect until otherwise determined
after the Effective Time. The Company shall take only
such action necessary to adapt such plans to the
Company s corporate form. In the case of benefit plans
which are continued and under which the employees'
interests are based upon Units, the Company and the
Partnership agree that such interests shall be based on
Company Common Stock in an equitable manner (and in the
case of any such interests outstanding at the Effective
Time, on the basis of the Conversion Number).
Section 12.11 Partnership Plans. (a) At the
Effective Time, each of the outstanding First Rights
representing the right to receive Units under a
Partnership Plan, whether vested or unvested, shall be
deemed to constitute the right to receive, on the same
terms and conditions as were applicable under such First
Rights, the same number of shares of Company Common Stock
as the holder of such First Rights would have been
entitled to receive pursuant to the Merger had such
holder been distributed Units in exchange for such First
Rights immediately prior to the Effective Time (not
taking into account whether or not such First Rights were
in fact convertible).
(b) As soon as practicable after the Effective
Time, the Company shall deliver to the participants in
the Partnership Plans appropriate notices setting forth
such participants' rights pursuant thereto and the grants
or awards pursuant to the Partnership Plans shall
continue in effect following the Effective Time on the
same terms and conditions (subject to the adjustments
required by this Section 12.11 after giving effect to the
Merger).
(c) The Company shall take all corporate
action necessary to reserve for issuance a sufficient
number of shares of Company Common Stock for delivery
under the Partnership Plans assumed in accordance with
this Section 12.11.
Section 12.12 Fees and Expenses. Whether or
not the Transactions are consummated, all costs and
expenses incurred by the parties hereto in connection
with this Agreement and the transactions contemplated
hereby shall be paid by the Partnership.
Section 12.13 Brokers or Finders. Each of the
Company, on the one hand, and the Partnership, on the
other hand, represents, as to itself, its subsidiaries,
if any, and its affiliates, that no agent, broker,
investment banker, financial advisor or other firm or
person is or will be entitled to any brokers' or finder's
fee or any other commission or similar fee in connection
with any of the transactions contemplated by this
Agreement except Smith Barney Inc. and Dillon, Read &
Co., Inc., each of whose fees and expenses will be paid
by the Partnership in accordance with the Partnership's
agreements with such firms, and each of the Company, on
the one hand, and the Partnership, on the other hand,
agree to indemnify and hold the other harmless from and
against any and all claims, liabilities or obligations
with respect to any other fees, commissions or expenses
asserted by any person on the basis of any act or
statement alleged to have been made by such party or its
affiliate.
Section 12.14 Indemnification.
(a) The Partnership shall, and from and after
the Effective Time, the Company shall, indemnify, defend
and hold harmless each person who is now, or has been at
any time prior to the date of this Agreement or who
becomes prior to the Effective Time, an officer,
director, employee, shareholder or partner of EIPCC,
PICC, the Partnership, the Operating Partnership, the
Operating Partnership GP, the Partnership GP or the
Company or an employee, agent or affiliate of such person
(the "Indemnified Parties") against all losses, claims,
damages, costs, expenses, liabilities or judgments, or
amounts that are paid in settlement with the approval of
the indemnifying party (which approval shall not be
unreasonably withheld) of, or in connection with, any
claim, action, suit, proceeding or investigation based in
whole or in part on or arising in whole or in part out of
the fact that such person is or was an officer, director,
employee, shareholder or partner of EIPCC, PICC, the
Partnership, the Operating Partnership, the Operating
Partnership GP, the Partnership GP or the Company or an
employee, agent or affiliate of such person, whether
pertaining to any matter existing or occurring at or
prior to the Effective Time and whether asserted or
claimed prior to, or at or after, the Effective Time
("Indemnified Liabilities") in each case to the full
extent a partnership is permitted under Delaware law to
indemnify such persons or entities and a corporation is
permitted under the Minnesota Business Corporation Act
(the "Minnesota BCA") to indemnify its own directors,
officers, employees, agents, and affiliates, as the case
may be and the Partnership (and after the Effective Time,
the Company) will pay expenses in advance of the final
disposition of any such action or proceeding to each
Indemnified Party to the full extent permitted by law
upon receipt of any undertaking to repay such expenses if
and when required to do so by applicable law. Without
limiting the foregoing, in the event any such claim,
action, suit, proceeding or investigation is brought
against any Indemnified Party (whether arising before or
after the Effective Time), (i) the Indemnified Parties
may retain counsel satisfactory to them and the
Partnership (and after the Effective Time, them and the
Company), (ii) the Partnership (and after the Effective
Time, the Company) shall pay all reasonable fees and
expenses of such counsel for the Indemnified Parties
promptly as statements therefor are received, and (iii)
the Partnership (and after the Effective Time, the
Company) will use all reasonable efforts to assist in the
vigorous defense of any such matter, provided that
neither the Partnership nor the Company shall be liable
for any settlement of any claim effected without its
written consent, which consent, however, shall not be
unreasonably withheld. Any Indemnified Party wishing to
claim indemnification under this Section 12.14, upon
learning of any such claim, action, suit, proceeding or
investigation, shall notify the Partnership (and after
the Effective Time, the Company) (but the failure so to
notify the Partnership or the Company, as the case may
be, shall not relieve the Partnership or the Company, as
the case may be, from any liability which it may have
under this Section 12.14 except to the extent such
failure prejudices such party), and shall deliver to the
Partnership (and after the Effective Time, the Company)
the undertaking referred to above. The Indemnified
Parties as a group may retain only one law firm to
represent them with respect to each such matter unless
there is, under applicable standards of professional
conduct, a conflict on any significant issue between the
positions of any two or more Indemnified Parties.
(b) The provisions of this Section 12.14 are
intended to be for the benefit of, and shall be
enforceable by, each Indemnified Party and his or her
heirs and representatives.
Section 12.15 Indemnification of The
Transferors, The Partnership GP, The Operating
Partnership GP, EIPCC, PICC and Agents.
(a) Definitions. For purposes of this Section
12.15 only, the following terms shall have the following
meanings:
(i) "Agent" means any person who is or
was a partner, director, officer, employee, consultant or
other agent of the Partnership, the Operating
Partnership, the Partnership GP, EIPCC, the Operating
Partnership GP, PICC or the Company, or any of their
predecessor entities, or is or was serving at the request
of, for the convenience of, or to represent the interests
of, the Partnership GP, EIPCC, the Operating Partnership
GP, PICC or the Company or any of their predecessor
entities.
(ii) "Enforcement Proceeding" means any
Proceeding in which the Indemnitee is a party concerning
the interpretation or enforcement of the rights of the
Indemnitee under this Section 12.15.
(iii) "Expenses" includes all direct and
indirect costs of any type or nature whatsoever
(including, without limitation, all attorneys' fees and
related disbursements, claims, damages, judgments,
losses, and liabilities of any type or nature whatsoever
or amounts that are paid in settlement, and other out-of-
pocket costs) actually and reasonably incurred by the
Indemnitee either in connection with the investigation,
defense, adjudication, settlement or appeal of a
Proceeding or in connection with establishing or
enforcing a right to indemnification under this
Agreement, a partnership agreement, applicable law or
otherwise.
(iv) "Indemnitee" means individually or
collectively, as the case may be, the Transferors and
their affiliates (including their respective officers,
directors, employees and partners), the Partnership GP,
EIPCC, PICC, the Operating Partnership GP, an Agent, or
any of them.
(v) "Proceeding" means any threatened,
pending or completed action, suit, investigation or other
proceeding whether civil, criminal, administrative,
investigative or any other type whatsoever.
(b) Indemnification. The Partnership (and
from and after the Effective Time, the Partnership and
the Company, as a separate and independent obligation of
each) shall, to the maximum extent permitted by each
under applicable law, indemnify, defend and hold harmless
the Indemnitee against all Expenses if the Indemnitee was
or is a party or is threatened to be made a party to any
Proceeding based (in whole or in part) on, arising (in
whole or in part) out of, or pertaining to this
Agreement, the Merger or any other Transactions.
(c) Advancement of Expenses. Prior to the
final disposition of a Proceeding, the Partnership (and
from and after the Effective Time, the Partnership and
the Company, as a separate and independent obligation of
each) shall, not later than seven (7) calendar days after
a written request by the Indemnitee is sent, advance to
the Indemnitee, all Expenses incurred, accrued, or
reasonably expected by the Indemnitee, in its sole
discretion, to be incurred within sixty (60) calendar
days from such request, by the Indemnitee in connection
with the investigation, defense, adjudication, settlement
or appeal of any such Proceeding based (in whole or in
part) on, arising (in whole or in part) out of, or
pertaining to this Agreement, the Merger or any other
Transactions; provided, however, that the Indemnitee
gives a written undertaking to repay such Expenses
advanced if, and only to the extent that, a court having
jurisdiction pursuant to Section 12.15(i)(1) hereof shall
ultimately determine that the Indemnitee is not entitled
to be indemnified by the Partnership (and from and after
the Effective Time, the Company) for such Expenses. All
funds requested hereunder by the Indemnitee shall be
deemed to be reasonable unless and until the Partnership
(and from and after the Effective Time, the Company)
shall prove, by clear and convincing evidence, in a court
having jurisdiction pursuant to Section 12.15(i)(1), that
the funds requested are not reasonable. Further, if the
Partnership (and from and after the Effective Time, the
Company) shall not advance the funds requested by the
Indemnitee within the time period set forth herein, the
Partnership (and from and after the Effective Time, the
Company) shall pay to the Indemnitee, in addition to the
amount requested, interest on the amount requested, from
the time of the request, at the highest rate permitted
under the law of the State of Delaware until said amount
is paid in full.
(d) Proceedings Involving This Agreement.
Notwithstanding any other provision in this Agreement to
the contrary, the Partnership (and from and after the
Effective Time, the Partnership and the Company, as a
separate and independent obligation of each) shall, to
the maximum extent permitted by each under applicable
law, indemnify, defend and hold harmless the Indemnitee
against all Expenses incurred by the Indemnitee in
connection with any Enforcement Proceeding unless a court
having jurisdiction pursuant to Section 12.15(i)(1)
hereof finds that each of the claims and/or defenses of
the Indemnitee in any such Enforcement Proceeding was
frivolous or made in bad faith. Prior to the final
disposition of an Enforcement Proceeding, the Partnership
(and from and after the Effective Time, the Company)
shall, not later than seven (7) calendar days after a
written request by the Indemnitee is sent, advance to the
Indemnitee all Expenses incurred, accrued, or reasonably
expected by the Indemnitee, in its sole discretion, to be
incurred within sixty (60) calendar days from such
request, by the Indemnitee in connection with any such
Enforcement Proceeding; provided, however, that the
Indemnitee gives a written undertaking of the kind
referred to in the proviso to Section 12.15(c) hereof.
All funds requested hereunder by the Indemnitee shall be
deemed to be reasonable unless and until the Partnership
(and from and after the Effective Time, the Company)
shall prove, by clear and convincing evidence, in a court
having jurisdiction pursuant to Section 12.15(i)(1), that
the funds requested are not reasonable. Further, if the
Partnership (and from and after the Effective Time, the
Company) shall not advance the funds requested by the
Indemnitee within the time period set forth herein, the
Partnership (and from and after the Effective Time, the
Company), shall pay to the Indemnitee, in addition to the
amount requested, interest on the amount requested, from
the time of the request, at the highest rate permitted
under the law of the State of Delaware until said amount
is paid in full.
(e) Notice of Proceedings and Defense.
(i) Notice. Promptly after receipt by
the Indemnitee of notice of the commencement or the
threat of commencement of any Proceeding with respect to
which the Indemnitee believes that the Indemnitee may be
entitled to Indemnification or the advancement of
Expenses under this Agreement, the Indemnitee shall
notify in writing the Partnership (and from and after the
Effective Time, the Company) of the commencement or the
threat of commencement thereof; provided, however, that
the failure so to notify the Partnership (and from and
after the Effective Time, the Company) shall not relieve
the Partnership (and from and after the Effective Time,
the Company) from any liability which it may have under
this Section 12.15 except to the extent such failure
prejudices such party.
(ii) Defense. In the event any
Proceeding is brought against the Indemnitee, the
Indemnitee may retain counsel satisfactory to it and the
Partnership and the Company will use all reasonable
efforts to assist in the vigorous defense of any such
matter.
(f) Non-Exclusivity. The benefits provided
the Indemnitees under this Agreement shall not be deemed
exclusive of any other rights which the Indemnitee may
have under any law, other agreements or otherwise and
shall inure to the benefit of the heirs, executors and
administrators of the Indemnitee.
(g) Interpretation. The parties hereto intend
for this Agreement to be interpreted and enforced so as
to provide indemnification and advancement of Expenses to
the Indemnitee to the fullest extent now or hereafter
permitted by applicable law and, in the event that the
validity, legality or enforceability of any provision of
this Agreement is in question, such provision shall be
interpreted in a manner such that the provision will be
valid, legal and enforceable.
(h) Partial Indemnification. If the
Indemnitee is entitled under this Agreement to
indemnification by the Partnership or the Company for
some or a portion of any Expenses incurred in connection
with any Proceeding but is not entitled to
indemnification for the full amount thereof, the
Partnership (and from and after the Effective Time, the
Company) shall indemnify the Indemnitee for such full
amount thereof less the portion thereof to which a court
having jurisdiction pursuant to Section 12.15(i)(1)
hereof determines the Indemnitee is not entitled.
(i) Consent to Jurisdiction and Enforcement.
(1) The Partnership, the Company and the
Indemnitee each hereby irrevocably consent to the
jurisdiction of the courts of the States of Delaware and
Minnesota for all purposes in connection with any
dispute, action or proceeding which arises out of or
relates to this Section 12.15 and agree that any action
instituted under this Section 12.15 shall be brought only
in the state courts of the States of Delaware or
Minnesota.
(2) In the event of any dispute of any
type whatsoever under this Agreement involving the
obligations of the Partnership or the Company to
indemnify or advance Expenses to the Indemnitee, the
Partnership or the Company, as the case may be, shall
have the burden of proving by clear and convincing
evidence that the Partnership or the Company, as the case
may be, is not so obligated to indemnify or advance
Expenses to the Indemnitee.
(j) No Obligations to Mitigate. Under no
circumstances shall the Indemnitee be required or
obligated to seek recovery from third parties or
otherwise mitigate its losses in order to maintain a
claim against the Partnership or the Company. The
Partnership and the Company agree that the failure to
pursue such recovery or mitigate loss will in no way
reduce the amounts recoverable by Indemnitee from the
Partnership or the Company.
Section 12.16 Preservation of Partnership,
Partnership GP and EIPCC. For a period of two years
after the Effective Time, the Company will not dissolve,
liquidate, merge, or transfer all or substantially all
the assets out of, or otherwise cause the discontinuance
of the existence of, EIPCC, the Partnership or the
Partnership GP or cause the Partnership and the
Partnership GP to cease being treated as partnerships for
federal income tax purposes.
Section 12.17 Notification of Certain Matters.
The Company shall give prompt notice to the Partnership
GP, and the Partnership Entities shall give prompt notice
to the Company, of (a) the occurrence, or non-occurrence,
of any known event the occurrence, or non-occurrence, of
which would be likely to cause (i) any representation or
warranty contained in this Agreement to be untrue or
inaccurate or (ii) any covenant, condition or agreement
contained in this Agreement not to be complied with or
satisfied and (b) any known failure of the Company or any
of the Partnership Entities, as the case may be, to
comply with or satisfy any covenant, condition or
agreement to be complied with or satisfied by it
hereunder; provided, however, that the delivery of any
notice pursuant to this Section 12.17 shall not limit or
otherwise affect the remedies available hereunder to the
party receiving such notice.
Section 12.18 Publicity. Except as otherwise
required by law or the rules of the ASE and PSE, for so
long as this Agreement is in effect, none of the parties
hereto shall, or shall permit any of their subsidiaries
or affiliates to, issue or cause the publication of any
press release or other public announcement with respect
to the transactions contemplated by this Agreement
without the written consent of the Company and the
Partnership GP, which consent shall not be unreasonably
withheld.
Section 12.19 Certain Tax Matters.
(a) The Company and Victor K. Atkins, Jr. (or
his designee, collectively "Atkins") agree that Atkins
will duly and timely prepare and file all federal, state
and local tax returns and information reports required to
be filed by the Partnership, the Operating Partnership,
the Partnership GP and the Operating Partnership GP,
including without limitation the federal Form 1065 and
Schedules K-1, required for any taxable year of any of
such entities ending on or before the Closing Date. The
parties hereto acknowledge that a termination for federal
income tax purposes pursuant to Section 708(b)(1)(B) of
the Code (a "Termination") will occur with respect to the
Partnership, the Operating Partnership, the Partnership
GP and the Operating Partnership GP on the Closing Date,
and that as a consequence of such Termination, the
taxable year of each of such entities will end on such
date. Atkins agrees to prepare and file the above
mentioned returns consistent with past practice. Atkins
will not make any election related to taxes or change any
method of accounting for taxes with respect to such
returns or reports without the prior written consent of
the Company except that Atkins may make an election to
adjust the basis of partnership assets under section 754
of the Code for any of such partnerships if such election
has not already been made. At least ten (10) business
days prior to their respective due dates, Atkins will
forward a copy to the Company of all proposed income tax
returns required to be filed by the Partnership, the
Operating Partnership, the Partnership GP and the
Operating Partnership GP for the taxable year ending on
the Closing Date (each a "Final Year Income Tax Return"),
and, absent prior written notice from the Company, Atkins
agrees not to file any Final Year Income Tax Return for
at least ten (10) business days following the Company's
receipt of such Final Year Income Tax Return; provided,
however, the filing of any such Final Year Income Tax
Return shall be within the sole discretion of Atkins.
(b) In the event any tax return or report of
the Partnership, the Operating Partnership, the
Partnership GP and the Operating Partnership GP, relating
to any taxable year of any of such entities ending on or
prior to the Closing Date is examined by the Internal
Revenue Service or any other taxing authority, the
Company, upon receipt of actual notice of such
examination by it or any of its Subsidiaries,, shall give
Atkins prompt written notice thereof and keep Atkins
fully informed as to the conduct of any such tax audits
and any subsequent administrative or judicial proceedings
relating thereto. Subject to applicable Treasury
Regulations, Atkins shall be permitted to act as the "Tax
Matters Partner" within the meaning of Section 6231(a)(7)
of the Code (and in any similar capacity under applicable
state or local tax law) as to the Partnership, the
Operating Partnership, the Partnership GP and the
Operating Partnership GP with respect to the taxable
years of any of such entities ending on or prior to the
Closing Date. In the event Atkins is not permitted to
act as the Tax Matters Partner of the Partnership, the
Operating Partnership, the Partnership GP or the
Operating Partnership GP in accordance with the preceding
sentence for any reason, but the Company (or any of its
affiliates) is permitted to act as the Tax Matters
Partner of any of such entities, the Company (or such
affiliate) shall act in such capacity for such entity at
the direction and control of Atkins to the fullest extent
permitted by law. Each of Atkins and the Company shall
keep the other party fully informed, through written
communications or otherwise, of any examination, audit,
or administrative or judicial proceeding referred to
above. Atkins agrees not to settle or otherwise
compromise any issue in any examination, audit, or
administrative or judicial proceeding referred to above
without the prior written consent of the Company, such
consent not to be unreasonably withheld, if Atkins
receives a written statement from the Company's auditors
or counsel stating that such settlement or compromise of
such issue will adversely affect the Company to a
material extent.
(c) From and after the Closing Date, the
Company shall afford to Atkins and his attorneys,
accountants, and other authorized representatives, free
and full access to the books and records of the
Partnership, the Operating Partnership, the Partnership
GP and the Operating Partnership GP in connection with
(i) any examination or audit by the Internal Revenue
Service or any other taxing authority of any tax return
or report of any of such entities relating to any taxable
year of any of such entities ending on or prior to the
Closing Date or (ii) the preparation by Atkins of any
federal, state and local tax returns and information
reports required to be filed by the Partnership, the
Operating Partnership, the Partnership GP and the
Operating Partnership GP for any taxable year of any of
such entities ending on or prior to the Closing Date,
provided that the access of Atkins to the books and
records of the Partnership, the Operating Partnership,
the Partnership GP and the Operating Partnership GP shall
not unreasonably interfere with the operations of any of
such entities. The Company shall cause the Partnership,
the Operating Partnership, the Partnership GP and the
Operating Partnership GP to make available, as reasonably
requested, their personnel (including technical), agents
and other representatives who are responsible for
preparing or maintaining information, records or other
documents, or who may have particular knowledge with
respect to any such matter. The books and records of the
Partnership, the Operating Partnership, the Partnership
GP and the Operating Partnership GP shall be preserved by
the Company for a period of five years after the Closing
Date or such longer period as shall reasonably be
requested, in writing, by Atkins to permit the completion
of any audit of taxes or subsequent administrative or
judicial proceedings relating thereto for any period
ending on or prior to the Closing Date, and Atkins shall
have the right to make copies thereof.
(d) The Company will indemnify and reimburse
Atkins for all reasonable expenses, including, without
limitation, legal and accounting fees, travel and
telephone expenses, claims, liabilities, losses and
damages incurred in connection with performing the duties
described above including his duties in connection with
any audit or administrative or judicial proceeding with
respect to the tax liability of the Partnership or the
Operating Partnership, provided, however, that the
Company shall not indemnify or otherwise reimburse Atkins
for any such expenses, claims, liabilities, losses or
damages to the extent they were incurred as a result of
the gross negligence or willful misconduct of Atkins.
The Company will pay any such expenses to Atkins not
later than seven days after written request by him, and
in advance of the final disposition of any such action,
audit or proceeding.
(e) The Company and each of the EIPCC
Stockholders agree that the EIPCC Stockholders (or their
designee) shall duly and timely prepare and file any
federal, state and local tax returns and information
reports required to be filed by EIPCC and PICC for any
taxable year of any of such entities ending on or before
or including the Closing Date. The EIPCC Stockholders
shall provide the Company with a copy of all such tax
returns and reports promptly after their filing.
(f) In the event any tax return or report of
EIPCC or PICC relating to any taxable year of any of such
entities ending on or before or including the Closing
Date is examined by the Internal Revenue Service or any
other taxing authority, the Company, upon receipt of
actual notice of such examination by it or any of its
Subsidiaries, shall give the EIPCC Stockholders prompt
written notice thereof and keep the EIPCC Stockholders
fully informed as to the conduct of any such tax audits
and any subsequent administrative or judicial proceedings
relating thereto. The EIPCC Stockholders (or their
designee) shall have the sole right to control any such
audit or proceeding, refund claims and litigation, and to
contest, resolve and defend any assessment, notice of
deficiency or other adjustment or proposed adjustment
relating to any and all taxes for any such taxable years.
In the event the EIPCC Stockholders are not permitted to
act in the capacity described above for any reason but
the Company (or any of its affiliates) is permitted to
act in such capacity, the Company (or such affiliate)
shall act in such capacity at the direction and control
of the EIPCC Stockholders (or their designee) to the
fullest extent possible. The EIPCC Stockholders agree to
keep the Company fully informed as to the conduct and
status of any such audit, proceeding, refund claim or
litigation.
(g) From and after the Closing Date, the
Company shall afford to the EIPCC Stockholders and their
attorneys, accountants, and other authorized
representatives, free and full access to the books and
records of EIPCC and PICC in connection with (i) any
examination or audit by the Internal Revenue Service or
any other taxing authority of any tax return or report of
any of such entities relating to any taxable year of any
of such entities ending on or before or including the
Closing Date or (ii) the preparation by the EIPCC
Stockholders (or their designee) of any federal, state
and local tax returns and information reports required to
be filed by EIPCC or PICC for any taxable year of any of
such entities ending on or before or including the
Closing Date, provided that the access of the EIPCC
Stockholders (or their designee) to the books and records
of EIPCC or PICC shall not unreasonably interfere with
the operations of any of such entities. The Company
shall cause EIPCC or PICC to make available, as
reasonably requested, their personnel (including
technical), agents and other representatives who are
responsible for preparing or maintaining information,
records or other documents, or who may have particular
knowledge with respect to any such matter. The books and
records of EIPCC and PICC shall be preserved by the
Company for a period of five years after the Closing Date
or such longer period as shall reasonably be requested,
in writing, by the EIPCC Stockholders to permit the
completion of any audit of taxes or subsequent
administrative or judicial proceedings relating thereto
for any period ending on or prior to or including the
Closing Date, and the EIPCC Stockholders shall have the
right to make copies thereof.
Section 12.20 Registration Rights. At or
prior to the Closing Date, the Company and the
Transferors shall enter into a registration rights
agreement substantially in the form attached hereto as
Exhibit A.
Section 12.21 Delivery of Documents. At the
request of the Company following the Closing, and at the
Company's expense, the Partnership GP shall deliver or
cause to be delivered (if not previously delivered) to
the Company at its business address all documents, files
and records of EIPCC, PICC, the Partnership GP and the
Operating Partnership GP.
Section 12.22 Partnership Distributions.
(a) For each full calendar quarter prior to
the Effective Time, the Partnership shall continue to pay
regular quarterly distributions to Unitholders, on the
one hand, and the Partnership GP and Operating
Partnership GP, on the other hand, in the same amounts as
the quarterly distributions heretofore paid to such
persons in 1994 and otherwise consistent with past
practice ("Regular Distributions").
(b) If the Effective Time occurs prior to the
end of a calendar quarter, the Partnership shall make a
final regular quarterly distribution (as described in (a)
above) to Unitholders of record immediately prior to the
Effective Time, on the one hand, and the Partnership GP
and the Operating Partnership GP, on the other hand;
provided, however, that such regular quarterly
distribution shall be pro rated for the period from the
beginning of the calendar quarter during which the
Effective Time occurs to the Effective Time (the "Final
Distribution," and together with Regular Distributions,
the "Distributions"). The Final Distribution shall be
paid no later than 30 days after the Effective Time.
(c) Notwithstanding the foregoing, the
Transferors will receive their pro rata share of all
distributions otherwise payable to the Partnership GP and
the Operating Partnership GP which are not paid until
after the Closing.
ARTICLE XIII
CONDITIONS
Section 13.1 Conditions to Each Party's
Obligation To Effect the Transactions Contemplated
Hereby. The respective obligations of the parties to
effect the Transactions contemplated hereby shall be
subject to the satisfaction, on or prior to the Closing
Date, of the following conditions:
(a) Unitholder Approval. This Agreement shall
have been approved and adopted by the affirmative vote of
(x) the holders of more than 50% of Units (excluding
Units held by the Partnership GP, affiliates of the
Partnership GP and senior operating management of the
Operating Partnership) and (y) the holders of Units
entitled to cast more than 50% of the total number of
votes entitled to be cast.
(b) Stock Exchange Listing. The shares of
Company Common Stock issuable to the Unitholders pursuant
to this Agreement shall have been authorized for listing
on the ASE and the PSE, subject to official notice of
issuance.
(c) Other Approvals. All authorizations,
consents, orders or approvals of, or declarations or
filings with, or expirations of waiting periods imposed
by, any Governmental Entity the failure to obtain which
would have a material adverse effect on the Company or
the Partnership and the Operating Partnership, taken as a
whole, shall have been filed, occurred or been obtained.
The Company shall have received all state securities or
"Blue Sky" permits and other authorizations necessary to
issue the Company Common Stock pursuant to this
Agreement.
(d) Registration Statement. The S-4 shall
have become effective under the Securities Act and shall
not be the subject of any stop order or proceeding
seeking a stop order.
(e) No Injunctions or Restraints. No
temporary restraining order, preliminary or permanent
injunction or other order issued by any court of
competent jurisdiction or other legal restraint or
prohibition preventing the consummation of the Merger
shall be in effect (each party agreeing to use all
reasonable efforts to have any such order reversed or
injunction lifted).
(f) HSR Approval. Any applicable waiting
period under the HSR Act shall have expired or been
terminated.
(g) Fairness Opinions. Neither of the
fairness opinions delivered to the Partnership by Smith
Barney Inc. and Dillon, Read & Co. Inc. shall have been
rescinded prior to the Effective Time.
Section 13.2 Conditions to Obligations of The
Company. The obligations of the Company to effect the
Merger and the other transactions contemplated hereby are
subject to the satisfaction, on or prior to the Closing
Date, of the following conditions unless waived by
Company:
(a) Representations and Warranties. (i) The
aggregate effect of all inaccuracies in the
representations and warranties of the Partnership
Entities set forth in this Agreement does not and will
not have a material adverse effect on the Partnership and
the Operating Partnership taken as a whole and (ii) the
representations and warranties of the Partnership
Entities contained in this Agreement shall be true and
correct in all material respects as of the date hereof,
and, as of the Closing Date as though made on and as of
the Closing Date, except as otherwise contemplated by
this Agreement, and the Company shall have received a
certificate of each of the Partnership Entities signed by
the general partner or the chief executive officer, or
individually, as appropriate, to such effect with respect
to the representations and warranties made by such
Partnership Entity.
(b) Performance of Obligations of the
Partnership Entities. The Partnership Entities shall
have performed in all material respects all obligations
required to be performed by them under this Agreement at
or prior to the Closing Date, and the Company shall have
received certificates of each of the Partnership Entities
signed by the general partner or chief executive officer,
or individually, as appropriate, to such effect.
(c) Tax Opinion. The Company shall have
received an opinion of Skadden, Arps, Slate, Meagher &
Flom, special tax counsel to the Company, in form and
substance reasonably acceptable to the Company
substantially to the effect that on the basis of facts,
representations and assumptions set forth in such
opinion, and in accompanying certificates signed by
appropriate officers of the Company and the Partnership
or Operating Partnership, which are consistent with the
state of facts then existing, for federal income tax
purposes (i) the formation and existence of PTP and its
subsequent merger with and into the Partnership will be
disregarded; (ii) the transfers of Units by Unitholders
and other property described herein by the Transferors to
the Company in exchange for Company Common Stock pursuant
to the Transactions shall, in the aggregate, constitute a
transaction described in Section 351(a) of the Code; and
(iii) Unitholders should not recognize gain or loss as a
result of the exchange of their Units for Company Common
Stock pursuant to the Transactions. Insofar as relevant,
such opinion will not address the tax results to certain
types of taxpayers, including taxpayers who are not
United States persons (as defined in Section 7701(a)(30)
of the Code), insurance companies, financial institutions
and taxpayers holding their Units in the capacity as
dealers in securities.
(d) Material Consents. All third party
consents necessary to effect the Transactions shall have
been obtained, to the extent the failure to obtain such
consents would (i) materially adversely affect the
Company s or the Partnership Entities ability to
consummate the Transactions, (ii) impose material
liability on the Company or the Partnership or the
Operating Partnership, or have a material adverse effect
on the Company's or the Partnership s or the Operating
Partnership s assets and properties, or (iii) materially
detract from the Company's or the Partnership s or the
Operating Partnership s assets and Properties.
(e) Dissenting Unitholders. No more than 5%
of the outstanding Units shall be held by Dissenting
Unitholders.
Section 13.3 Conditions to Obligations of the
Partnership Entities. The obligation of the Partnership
Entities to effect the Transactions contemplated hereby
is subject to the satisfaction of the following
conditions, on or prior to the Closing Date, unless
waived by the Partnership GP:
(a) Representations and Warranties. (i) The
aggregate effect of all inaccuracies in the
representations and warranties of the Company set forth
in this Agreement does not and will not have a material
adverse effect on the Company and (ii) the
representations and warranties of the Company contained
in Sections 11.1, 11.2 and 11.3 shall be true and correct
in all material respects as of the date hereof, and, as
of the Closing Date as though made on and as of the
Closing Date, except as otherwise contemplated by this
Agreement, and the Partnership shall have received a
certificate signed on behalf of the Company by its chief
executive officer to such effect.
(b) Performance of Obligations of The Company.
Company shall have performed in all material respects all
obligations required to be performed by them under this
Agreement at or prior to the Closing Date, and the
Partnership shall have received a certificate signed on
behalf of the Company by its chief executive officer of
the Company to such effect.
(c) Tax Opinion. The Partnership shall have
received an opinion of Stroock & Stroock & Lavan, special
counsel to the Partnership, in form and substance
reasonably acceptable to the Partnership, substantially
to the effect that on the basis of facts, representations
and assumptions set forth in such opinion, and in
accompanying certificates signed by appropriate officers
of the Company and the Partnership or Operating
Partnership, which are consistent with the state of facts
then existing, for federal income tax purposes (i) the
formation and existence of PTP and its subsequent merger
with and into the Partnership will be disregarded; (ii)
the transfers of Units by Unitholders and other property
described herein by the Transferors to the Company in
exchange for Company Common Stock pursuant to the
Transactions shall, in the aggregate, constitute a
transaction described in Section 351(a) of the Code;
(iii) Unitholders should not recognize gain or loss as a
result of the exchange of their Units for Company Common
Stock pursuant to the Transactions; and (iv) the
Transferors should not recognize gain or loss as a result
of exchanging their partnership interests in the
Partnership GP or the Operating Partnership GP, or shares
of common stock of EIPCC, as the case may be, for shares
of Company Common Stock pursuant to the Transactions
except to the extent any Transferor recognizes gain
pursuant to Section 357(c) of the Code. Insofar as
relevant, such opinion will not address the tax results
to certain types of taxpayers, including taxpayers who
are not United States persons (as defined in Section
7701(a)(30) of the Code), insurance companies, financial
institutions and taxpayers holding their Units in the
capacity as dealers in securities.
(d) Material Consents. All third party
consents necessary to effect the Transactions shall have
been obtained, to the extent the failure to obtain such
consents would (i) materially adversely affect the
Company's or the Partnership Entities ability to
consummate the Transactions in the aggregate, or (ii)
impose material liability on the Partnership Entities in
the aggregate.
ARTICLE XIV
INDEMNITIES
Section 14.1 EIPCC Stockholders Indemnity.
(a) Mr. Atkins agrees to indemnify the
Partnership and the Company and their respective
successors and assigns from and against (i) all debts,
claims, liabilities and obligations of EIPCC that are not
Partnership GP Liabilities, (ii) all debts, claims,
liabilities and obligations of PICC that are not
Operating Partnership GP Liabilities, and (iii) any
breach of the representations and warranties set forth in
Sections 10.1(a), 10.1(b), 10.1(c)(ii), 10.1(d) (to the
extent applicable to EIPCC or PICC), 10.1(e) and 10.1(g),
and to pay all costs and expenses (including fees and
disbursements of counsel) incurred by the Partnership and
the Company and their respective successors and assigns
in connection therewith.
(b) Each EIPCC Stockholder severally and not
jointly agrees to indemnify the Partnership and the
Company and their respective successors and assigns from
and against any breach of any of such EIPCC Stockholder's
representations and warranties set forth in Sections
10.1(c)(i), 10.1(d) (to the extent applicable to such
EIPCC Stockholder) and 10.1(f), and to pay all costs and
expenses (including fees and disbursements of counsel)
incurred by the Partnership and the Company and their
respective successors and assigns in connection
therewith.
Section 14.2 Partnership GP Partners
Indemnity.
(a) Mr. Atkins agrees to indemnify the
Partnership and the Company and their respective
successors and assigns from and against (i) all
debts,claims, liabilities and obligations of the
Partnership GP that are not Partnership Liabilities and
(ii) any breach of any of the representations and
warranties set forth in Sections 10.2(a), 10.2(b),
10.2(d) (to the extent applicable to the Partnership GP),
10.2(e) and 10.2(g), and to pay all costs and expenses
(including fees and disbursements of counsel) incurred by
the Partnership and the Company and their respective
successors and assigns in connection therewith.
(b) Each Partnership GP Partner severally and
not jointly agrees to indemnify the Partnership and the
Company and their respective successors and assigns from
and against any breach of such Partnership GP Partner's
representations and warranties set forth in Sections
10.2(c), 10.2(d) (to the extent applicable to such
Partnership GP Partner) and 10.2(f) and to pay all costs
and expenses (including fees and disbursements of
counsel) incurred by the Partnership and the Company and
their respective successors and assigns in connection
therewith.
Section 14.3 Operating Partnership GP Partners
Indemnity.
(a) Mr. Atkins agrees to indemnify the
Partnership and the Company and their respective
successors and assigns against (i) all debts, claims,
liabilities and obligations of the Operating Partnership
GP that are not Operating Partnership Liabilities and
(ii) any breach of any of the representations and
warranties set forth in Sections 10.3(a), 10.3(b),
10.3(d) (to the extent applicable to the Operating
Partnership GP), 10.3(e) and 10.3(g), and to pay all
costs and expenses (including fees and disbursements of
counsel) incurred by the Partnership and the Company in
connection therewith.
(b) Each Operating Partnership GP Partner
severally and not jointly agrees to indemnify the
Partnership and the Company against any breach of any of
such Operating Partnership GP Partner's representations
and warranties set forth in Sections 10.3(c), 10.3(d) (to
the extent applicable to such Operating Partnership GP
Partner) and 10.3(f), and to pay all costs and expenses
(including fees and disbursements of counsel) incurred by
the Partnership and the Company and their respective
successors and assigns in connection therewith.
Section 14.4 General Tax Indemnity.
(a) Mr. Atkins shall indemnify and hold the
Partnership and the Company and their respective
successors and assigns harmless from and against all
liabilities for all taxes actually imposed on and paid by
each of the Partnership GP, the Operating Partnership GP,
PICC and EIPCC (the "Indemnity Entities") for all tax
periods or portions thereof of the Indemnity Entities
ending on or before the Closing Date, excluding all tax
liabilities incurred by any of the Indemnity Entities
resulting from any of the Transactions; provided,
however, that Mr. Atkins' obligation to indemnify and
hold harmless the above parties shall be reduced to the
extent EIP I L.P. and LB I Group Inc. are obligated to
indemnify the above parties pursuant to paragraph (b)
below.
(b) EIP I L.P. and LB I Group Inc. jointly and
severally shall indemnify and hold harmless the
Partnership and the Company and their respective
successors and assigns from and against 50% of all
liabilities (Mr. Atkins being responsible for the
remaining 50% pursuant to paragraph (a) above) for all
taxes actually imposed on and paid by each of the
Partnership GP and the Operating Partnership GP (the
"Partnership Indemnity Entities") for all tax periods or
portions thereof of the Partnership Indemnity Entities
ending on or before the Closing Date excluding all tax
liabilities incurred by any of the Partnership Indemnity
Entities resulting from any of the Transactions;
provided, however, that EIP I L.P. and LB I Group Inc.
shall not bear any portion of such liabilities of the
Partnership Indemnity Entities that resulted from Mr.
Atkins' own actual fraud, gross negligence, willful or
wanton misconduct or, if applicable, breach of fiduciary
duty to the Partnership Indemnity Entities (any act or
omission done in reliance upon the opinion of independent
legal counsel or public accountants or other consultants
selected with reasonable care will be conclusively
presumed to have been done or omitted in good faith and
not to constitute gross negligence or willful or wanton
misconduct), and provided, further, however, that the
maximum liability of EIP I L.P. and LB I Group Inc. under
this paragraph shall not exceed the liability of Mr.
Atkins pursuant to paragraph (a) above and, in any event,
shall not exceed $1,000,000.
Section 14.5 Exception to Certain
Indemnities. Notwithstanding the provisions of Sections
14.1, 14.2 and 14.3 above requiring certain persons to
indemnify the Partnership and Corporation, and their
respective successors and assigns for certain
liabilities, to the extent such persons are otherwise
entitled to be indemnified by the Partnership or the
Company for such liabilities pursuant to Sections 12.14
and 12.15 hereof or otherwise, then such persons shall
not be required to make the indemnifications to the
Partnership or the Company pursuant to Sections 14.1,
14.2 and 14.3 hereof for such liabilities.
Notwithstanding anything in this Agreement to the
contrary, no Transferor shall have any liability in
respect of a Partnership Liability or an Operating
Partnership Liability.
Section 14.6 Indemnification of W. Hall
Wendel, Jr. and the Company. If, after the Company has
been incorporated, the Transactions contemplated by this
Agreement are not consummated for any reason and the
Company subsequently liquidates and distributes any Units
to its shareholders, the Partnership shall indemnify and
hold harmless, on an after-tax basis without reduction
for any tax benefit that may be realized due to a step-up
in basis or otherwise, each of the Company and W. Hall
Wendel Jr. ("Wendel") for all taxes payable by the
Company and Wendel as a result of the distribution of any
Units by the Company to Wendel.
Section 14.7 Procedures for Indemnification.
(a) In order for the party from whom indemnity
may be sought pursuant to this Article XIV (the
"Indemnitor") to be fully informed at all times
concerning its possible obligations to give indemnity to
the claimant thereof under the provisions thereof (the
"Indemnitee") and to permit the amounts thereof to be
minimized, if the Indemnitee suffers or is threatened
with or incurs any loss, damage or expense for which it
would be entitled to be indemnified, the Indemnitee shall
promptly give written notice to Indemnitor after
obtaining knowledge of any claim and, if such indemnity
shall arise from the claim of a third party, shall permit
Indemnitor to assume the defense of any such claim or any
Proceeding (as defined in Section 12.15) resulting from
such claim. Notwithstanding the foregoing notice
requirement, the right to indemnification shall not be
affected by any failure of Indemnitee to give such notice
or any delay by Indemnitee in giving such notice unless,
and then only to the extent that, the rights and remedies
of indemnitor shall have been prejudiced as a result of
the failure to give, or delay in giving, such notice.
Failure by Indemnitor to notify the Indemnitee of its
election to defend any such claim or Proceeding by a
third party, within fourteen days after written notice
thereof shall have been given to Indemnitor, shall be
deemed a waiver by Indemnitor of its right to defend such
claim or action.
(b) If Indemnitor assumes the defense of such
claim or Proceeding by a third party, the obligations of
Indemnitor hereunder as to such claim or Proceeding shall
include taking all steps necessary in the defense or
settlement of such claim or proceeding, including the
retention of counsel reasonably satisfactory to the
Indemnitee, and holding the Indemnitee harmless from and
against any and all claims caused by or arising out of
any settlement approved by Indemnitor or any judgment in
connection with such claim or Proceeding. Without the
prior written consent of Indemnitee, Indemnitor shall
not, in the defense of such claim or Proceeding, consent
to the entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof
the giving by the claimant or the plaintiff to the
Indemnitee of a release, in form reasonably satisfactory
to the Indemnitee, from all liability in respect of such
claim or Proceeding. Notwithstanding the foregoing, the
Indemnitee will be entitled to participate at its expense
in the defense of such claim or Proceeding. If the
defendants in any such Proceeding include both the
Indemnitee and Indemnitor and the Indemnitee shall have
reasonably concluded that there may be legal defenses
available to it which are different from or additional to
those available to the Indemnitor, the Indemnitee shall
have the right to select separate counsel to assume such
legal defenses and to otherwise participate in the
defense of such Proceeding on behalf of such Indemnitee
and at the expense of the Indemnitor.
(c) If Indemnitor does not assume the defense
of any such claim or Proceeding by a third party, the
Indemnitee may defend against such claim or Proceeding in
such manner as it deems appropriate and, unless
Indemnitor shall deposit with Indemnitee a sum equivalent
to the total amount demanded in such claim or Proceeding
plus the Indemnitee's estimate of the cost of defending
the same, the Indemnitee may settle such claim or
Proceeding on such terms as it deems appropriate and
Indemnitor shall, in accordance with the provisions
hereof promptly reimburse the Indemnitee for the amount
of such settlement and for all losses and expenses
incurred by Indemnitee in connection with the defense
against or settlement of such claim or Proceeding.
Indemnitor agrees to cooperate fully with the Indemnitee
in the conduct of any defense against any claim or
Proceeding.
(d) Each of Indemnitor and Indemnitee will
cooperate with the other in resolving or attempting to
resolve any claim and will permit the other party access
to all books and records which might be useful for such
purpose, during normal business hours and at the place
where the same are normally kept, with full right to make
copies thereof or extracts therefrom at the cost of the
copying party.
(e) The provisions of this Section 14.7 are
subject to the provisions of Section 12.19.
ARTICLE XV
TERMINATION AND AMENDMENT
Section 15.1 Termination. This Agreement may
be terminated at any time prior to the Effective Time,
whether before or after approval of the Conversion
Proposal by the Unitholders of the Partnership or the
Company:
(a) by mutual consent of the Company and the
Partnership GP;
(b) by either the Company or the Partnership
GP if the Transactions shall not have been consummated
before April 15, 1995 (unless the failure to so
consummate the Transactions before such date shall be due
to the wilful action or failure to act of the party
seeking to terminate this Agreement which action or
failure to act constitutes a breach of this Agreement);
and
(c) by the Partnership GP in accordance with
the provisions of Section 16.1 hereof.
Section 15.2 Effect of Termination. In the
event of a termination of this Agreement by either the
Partnership GP or the Company as provided in Section
15.1, this Agreement shall forthwith become void and
there shall be no liability or obligation on the part of
the Company or the Partnership Entities or their
respective officers or directors, other than the
provisions of Sections 12.12, 12.13, 12.14, 12.15, and
12.18; provided, however that any such termination shall
not relieve any party from liability for willful breach
of any of its covenants or agreements set forth in this
Agreement.
Section 15.3 Amendment. This Agreement may be
amended by the parties hereto, by action taken or
authorized by their respective Boards of Directors or
general partners, at any time before or after approval of
the matters presented in connection with the Merger by
the Unitholders of the Partnership or of the Company,
but, after any such approval, no amendment shall be made
which by law requires further approval by such
Unitholders without such further approval. This
Agreement may not be amended except by an instrument in
writing signed on behalf of each of the parties hereto.
ARTICLE XVI
MISCELLANEOUS
Section 16.1 Fiduciary Duties. Nothing
contained in this Agreement shall be deemed to alter the
Partnership GP's fiduciary duties to Unitholders under
the Partnership's partnership agreement or the DRULPA,
including, but not limited to, the right to terminate
this Agreement if the Partnership GP, as advised by
counsel, determines that as a result of any developments
occurring after the date of this Agreement, such
termination is necessary to discharge its fiduciary
duties.
Section 16.2 Nonsurvival of Representations
and Warranties. The representations and warranties set
forth in Articles X and XI shall survive the Effective
Time in perpetuity. All other representations and
warranties in this Agreement shall not survive the
Effective Time.
Section 16.3 Notices. All notices and other
communications hereunder shall be in writing and shall be
deemed given if delivered personally, telecopied (which
is confirmed) or mailed by registered or certified mail
(return receipt requested) to the parties at the
following addresses (or at such other address for a party
as shall be specified by like notice):
(a) if to the Company, to
Polaris Industries Inc.
1225 North Highway 169
Minneapolis, Minnesota 55441
Attention: John H. Grunewald,
Executive Vice President,
Finance and Administration
with a copy to
Kaplan, Strangis and Kaplan, P.A.
90 South 7th Street
Minneapolis, Minnesota 55402
Attention: Andris A. Baltins, Esq.
and
(b) if to any of the Partnership
Entities (other than the Transferors),
to
EIP Capital Corporation
33 Flying Point Road
Southampton, New York 11963
Attention: Victor K. Atkins, Jr.
with a copy to
Stroock & Stroock & Lavan
7 Hanover Square
New York, New York 10004
Attention: Hillel M. Bennett, Esq.
and
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Attention: George R. Krouse, Jr., Esq.
and
(c) if to any of the Transferors, to the
addresses set forth on Annex I, II or
III, respectively.
Section 16.4 Interpretation. When a reference
is made in this Agreement to Sections, such reference
shall be to a Section of this Agreement unless otherwise
indicated. The table of contents and headings contained
in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation
of this Agreement. Whenever the words "include",
"includes" or "including" are used in this Agreement they
shall be deemed to be followed by the words "without
limitation". The phrase "made available" in this
Agreement shall mean that the information referred to has
been made available if requested by the party to whom
such information is to be made available. The phrases
"the date of this Agreement", "the date hereof" and terms
of similar import, unless the context otherwise requires,
shall be deemed to refer to September 29, 1994.
Section 16.5 Counterparts. This Agreement may
be executed in two or more counterparts, all of which
shall be considered one and the same agreement and shall
become effective when two or more counterparts have been
signed by each of the parties and delivered to the other
parties, it being understood that all parties need not
sign the same counterpart.
Section 16.6 Entire Agreement; No Third Party
Beneficiaries. This Agreement (including the documents
and the instruments referred to herein), (a) constitutes
the entire agreement and supersedes all prior agreements
and understandings, both written and oral, among the
parties with respect to the subject matter hereof, and
(b) except as provided in Section 12.14, 12.15 or 14.6 is
not intended to confer upon any person other than the
parties hereto any rights or remedies hereunder.
Section 16.7 Governing Law. This Agreement
shall be governed and construed in accordance with the
laws of the State of Delaware without regard to any
applicable conflicts of law.
Section 16.8 Specific Performance. The
parties hereto agree that if any of the provisions of
this Agreement were not performed in accordance with
their specific terms or were otherwise breached,
irreparable damage would occur, no adequate remedy at law
would exist and damages would be difficult to determine,
and that the parties shall be entitled to specific
performance of the terms hereof, in addition to any other
remedy at law or equity.
Section 16.9 Assignment; Successors. Neither
this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the
parties hereto (whether by operation of law or otherwise)
without the prior written consent of the other parties.
Subject to the preceding sentence, this Agreement will be
binding upon, inure to the benefit of and be enforceable
by and against the parties and their respective heirs,
executors, administrators, successors and permitted
assigns.
IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be executed as of the date first
written above.
POLARIS INDUSTRIES INC.
By: /s/ W. Hall Wendel, Jr.
Name: W. Hall Wendel, Jr.
Title: Chairman and Chief Executive
Officer
POLARIS INDUSTRIES PARTNERS L.P.
By: EIP Associates L.P.
Its General Partner
By: EIP Capital Corporation
Its General Partner
By: /s/ Victor K. Atkins, Jr.
Name: Victor K. Atkins, Jr.
Title: President
POLARIS INDUSTRIES L.P.
By: Polaris Industries Associates L.P.
Its General Partner
By: Polaris Industries Capital
Corporation
Its General Partner
By: /s/ Victor K. Atkins, Jr.
Name: Victor K. Atkins, Jr.
Title: Chairman
EIP ASSOCIATES L.P.
By: EIP Capital Corporation
Its General Partner
By: /s/ Victor K. Atkins, Jr.
Name: Victor K. Atkins, Jr.
Title: President
POLARIS INDUSTRIES ASSOCIATES L.P.
By: POLARIS INDUSTRIES CAPITAL
CORPORATION
Its General Partner
By: /s/ Victor K. Atkins, Jr.
Name: Victor K. Atkins, Jr.
Title: Chairman
POLARIS INDUSTRIES CAPITAL CORPORATION
By: /s/ Victor K. Atkins, Jr.
Name: Victor K. Atkins, Jr.
Title: Chairman
EIP CAPITAL CORPORATION
By: /s/ Victor K. Atkins, Jr.
Name: Victor K. Atkins, Jr.
Title: President
THE PARTNERSHIP GP PARTNERS
(as set forth on Annex I hereto)
/s/ Victor K. Atkins, Jr.
Victor K. Atkins, Jr., the general
partner
EIP I, L.P., a limited partner
By: EIP I, Inc.
Its General Partner
By: /s/ Ron Hiram
Name: Ron Hiram
Title: President
LB I GROUP INC., a limited partner
By: /s/ Ron Hiram
Name: Ron Hiram
Title: Vice President
THE OPERATING PARTNERSHIP GP PARTNERS
(as set forth on Annex II hereto)
LB I GROUP INC., a limited partner
By: /s/ Ron Hiram
Name: Ron Hiram
Title: Vice President
/s/ Victor K. Atkins, Jr.
Victor K. Atkins, Jr., a general partner
/s/ G.A. Myles
G.A. Myles, a limited partner
THE EIPCC STOCKHOLDERS
(as set forth on Annex III hereto)
/s/ Victor K. Atkins, Jr.
Victor K. Atkins, Jr.
/s/ Nancy Flaherty
Nancy Flaherty
/s/ Walter D. O'Hearn
Walter D. O Hearn
/s/ Ann Rogers Egan
Ann Rogers Egan
ANNEX I
PARTNERSHIP GP PARTNERS
Partnership GP Percentage of
Partnership GP Partner Interests Transferors' Number
______________________ _______________ ___________________
EIP I L.P. 45% ltd. partner 41.0526%
c/o Lehman Brothers
Holdings, Inc.
3 World Financial Ctr.
New York, NY 10285
Attention: Ron Hiram
29th floor
Victor K. Atkins, Jr. 40% gen'l partner 36.4912%
(less priority distribution to LB I Group, Inc., pursuant to the
Partnership GP Partnership Agreement)
33 Flying Point Road
Southampton, NY 11968
LB I Group Inc. 5% ltd. partner 4.5614%
(plus priority distribution from Victor K. Atkins, Jr., pursuant to the
Partnership GP Partnership Agreement)
c/o Lehman Brothers
Holdings Inc.
3 World Financial Ctr.
New York, NY 10285
Attention: Ron Hiram
29th floor
_______________ ________
TOTAL 90% 82.1052%
ANNEX II
OPERATING PARTNERSHIP GP PARTNERS
Operating Partnership Operating Partner- Percentage of
GP Partner ship GP Interests Transferors' Number
_____________________ __________________ ___________________
LB I Group Inc. 50% ltd. partner 4.3860%
c/o Lehman Brothers
Holdings, Inc.
3 World Financial Ctr.
New York, NY 10285
Attention: Ron Hiram
29th floor
Victor K. Atkins, Jr. 40% gen'l partner 3.5087%
33 Flying Point Road
Southampton, NY 11968
G.A. Myles 5% ltd. partner .4386%
139 Cooper's Farm Road
Southampton, NY 11968
_______________ ________
TOTAL 95% 8.3333%
ANNEX III
EIPCC STOCKHOLDERS
Percentage of
EIPCC Stockholder Number of Shares Transferors' Number
_________________ ________________ ___________________
Victor K. Atkins, Jr. 50 6.8296%
33 Flying Point Road
Southampton, NY 11968
Walter D. O'Hearn, Jr. 10 1.3659%
c/o Keane Securities
Co., Inc.
50 Broadway, 13th Floor
New York, NY 10004
Ann Rogers Egan 5 .6830%
2247 Seaman's Neck Road
Seaford, NY 11783
Nancy A. Flaherty 5 .6830%
167 Nancy Lane
Wyckoff, NJ 07481
_______________ ________
TOTAL 70 9.5615%
Exhibit 3
FOR IMMEDIATE RELEASE
Contact: W. Hall Wendel, Jr.
Polaris Industries Inc.
612-542-0500
Victor K. Atkins
EIP Capital Corp.
516-283-1915
Dave Mona, John Shaughnessy
Mona Meyer McGrath & Gavin
612-832-5000
POLARIS FILES PROPOSED CONVERSION TO A CORPORATION
Plan includes dividends to compensate for reduction
in cash distribution
MINNEAPOLIS (Sept. 30, 1994) - Polaris Industries
Partners L.P. (AMEX:SNO) today announced that it has
filed a preliminary Proxy Statement/Prospectus with the
SEC relating to its previously announced conversion to
corporate form. The conversion calls for each BAC unit
to be exchanged tax-free for one share of common stock of
Polaris Industries Inc. The Proxy Statement/Prospectus
details Polaris Industries Inc.'s intention, upon
conversion, to recommend that its board of directors pay
a combination of regular and special dividends to
shareholders.
Polaris Industries Inc., Chief Executive Officer W. Hall
Wendel, Jr. said if the conversion to corporate form is
approved by Polaris unitholders the successor company
intends to pay shareholders, subject to legal and
contractual requirements and the financial requirements
of the business, cash dividends totalling $7.56 per share
from January, 1995 through December 31, 1997.
These anticipated cash dividends would equal the same
amount unitholders would have received had the
Partnership not converted and continued to pay its
regular cash distributions over this period ($2.52 per
year). If the conversion does not occur, the Partnership
will be taxed as a corporation if its units continue to
trade after December 31, 1997.
The $7.56 would be distributed through a combination of a
regular dividend of $0.60 per share per year, plus three
special dividends of $1.92 per share paid over the last
three quarters of 1995 (to the extent not previously
distributed by the Partnership prior to the conversion).
"We've decided to accelerate the dividend payout, and
believe this is in the best interests of the
shareholders," Wendel said.
The Polaris management team, business plan and growth
strategies will remain the same following the conversion.
Wendel also said the conversion to corporate form will be
a key to continued growth at Polaris. "As a corporation,
we can diversify into new businesses, and raise
additional cash for expansion through equity or debt," he
said.
Polaris' proposed conversion to corporate form is subject
to receipt of appropriate tax opinions, receipt of
regulatory approvals and the approval of BAC holders.
Polaris Industries Partners L.P. is a master limited
partnership which owns and operates Polaris Industries
L.P. Polaris designs, engineers, manufacturers and
markets snowmobiles, all-terrain vehicles and personal
watercraft for recreational and utility use. Polaris is
the world's largest snowmobile manufacturer, and one of
the largest U.S. manufacturers of ATV's and personal
watercraft. Polaris Industries Partners L.P. trades on
the American Stock Exchange and Pacific Stock Exchange
under the symbol "SNO".
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