SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 6, 1998
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Paging Partners Corporation
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(Exact name of registrant as specified in its charter)
Delaware 1-13002 22-3281446
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(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
Freehold Office Plaza
4249 Route 9N, Bldg. 2,
Freehold, New Jersey 07728
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 732-409-7088
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(Former name or former address, if changed since last report)
Exhibit Index is on page 3
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Item 5. Other Events.
On November 6, 1998, the Company entered into an Agreement and Plan of
Merger, dated as of November 6, 1998 (the "Merger Agreement"), with BAP
Acquisition Corporation ("BAP"), pursuant to which a newly created wholly-owned
subsidiary of the Company will merge with and into BAP (the "Merger"). Pursuant
to the terms of the Merger Agreement, each share of common stock of BAP will be
converted into the right to receive 88.92076 shares of common stock of the
Company, subject to certain adjustments. Following the Merger, the current
stockholders of BAP will own approximately 58.5% of the then outstanding shares
of the Company's common stock and BAP will be a wholly-owned subsidiary of the
Company.
To date, BAP has conducted no operations other than in connection with an
Asset Purchase Agreement, dated as of July 2, 1998, to purchase substantially
all of the assets of the paging business of Bell Atlantic (the "Bell Atlantic
Acquisition"). Pursuant to the Merger Agreement, the Company will transfer all
or substantially all of its assets to BAP immediately following the Merger.
The consummation of the Merger is subject to certain closing conditions,
including but not limited to: (i) approval by the Company's stockholders of the
Merger and related transactions, (ii) obtaining all requisite approvals and
consents, including consents from the FCC and other regulatory bodies and (iii)
the consummation of the Bell Atlantic Acquisition. The Company anticipates
consummating the Merger during the first quarter of fiscal 1999.
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Item 7. Financial Statements and Exhibits.
Exhibit No. Name Page
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10.1 Merger Agreement, dated as of November 6, 1998, by
and among Paging Partners Corporation, Paging
Partners Merger Corporation and BAP Acquisition
Corp.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Paging Partners Corporation
(Registrant)
Date: November 12, 1998 /s/ Jeffrey M. Bachrach
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By: Jeffrey M. Bachrach
Title: Vice President and
Principal Financial and
Accounting Officer
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AGREEMENT AND PLAN OF MERGER
BY AND AMONG
BAP ACQUISITION CORP.,
PAGING PARTNERS CORPORATION
AND
PAGING PARTNERS MERGER CORPORATION
DATED AS OF NOVEMBER 6, 1998
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AGREEMENT AND PLAN OF MERGER
Agreement and Plan of Merger, dated as of November 6, 1998 ("Agreement"),
by and among BAP Acquisition Corp., a Delaware corporation ("BAP"), Paging
Partners Corporation, a Delaware corporation ("Paging Partners"), and Paging
Partners Merger Corporation, a Delaware corporation and a wholly-owned
subsidiary of Paging Partners ("Newco").
RECITALS
WHEREAS, BAP has entered into the Asset Purchase Agreement, dated as of
July 2, 1998 and amended as of November 3, 1998 (as further amended from time to
time, the "Bell Atlantic Acquisition Agreement"), by and among BAP and the
Sellers named therein (the "Bell Atlantic Subsidiaries"), pursuant to which BAP
has agreed to acquire the licenses and other assets relating to the paging
business of the Bell Atlantic Subsidiaries (the "Bell Atlantic Paging
Business"), upon the terms and subject to the conditions specified in the Bell
Atlantic Acquisition Agreement (such acquisition being hereinafter referred to
as the "Bell Atlantic Acquisition");
WHEREAS, the respective Boards of Directors of BAP, Paging Partners and
Newco have each determined that it is in the best interests of their respective
stockholders to effect the merger of Newco with and into BAP (the "Merger") upon
the terms and subject to the conditions set forth herein;
WHEREAS, the respective Boards of Directors of Newco and BAP have each
approved the Merger, upon the terms and subject to the conditions set forth
herein;
WHEREAS, concurrently with the execution of this Agreement, Paging
Partners and BAP are entering into a Voting Agreement with certain stockholders
of Paging Partners named in the signature pages thereof (the "Voting Agreement")
pursuant to which such stockholders have
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agreed, among other things, to vote their shares in favor of the Merger and the
other transactions contemplated by this Agreement; and
WHEREAS, for Federal income tax purposes, it is intended that the Merger
qualify as a reorganization under the provisions of Section 368 of the Internal
Revenue Code of 1986, as amended (the "Code").
NOW, THEREFORE, in consideration of the foregoing premises and of the
mutual covenants, representations and warranties contained herein, and subject
to the terms and conditions set forth herein, the parties hereby agree as
follows:
ARTICLE I
MERGER
I.1 Merger. At the Effective Time (as defined in Section 1.3 hereof) and
subject to the terms and conditions of this Agreement and the General
Corporation Law of the State of Delaware (the "DGCL"), Newco shall be merged
with and into BAP, the separate corporate existence of Newco shall thereupon
cease, and BAP shall be the surviving corporation in the Merger (sometimes
hereinafter referred to as the "Surviving Corporation").
I.2 Surviving Corporation; Effects of the Merger. At the Effective Time,
the Surviving Corporation shall continue its corporate existence under the laws
of the State of Delaware. The Merger shall have the effects specified in Section
259 of the DGCL. As of the Effective Time, the Surviving Corporation shall
change its name to BAPP Holdings, Inc.
I.3 Effective Time. As soon as practicable following the satisfaction (or,
to the extent permitted by law, the waiver) of all of the conditions to the
Merger, and provided that this Agreement has not been terminated pursuant to
Article VI hereof, the parties hereto shall effect
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the Merger by filing with the Secretary of State of the State of Delaware a
Certificate of Merger (the "Certificate of Merger") in such form as is required
by, and executed in accordance with, the relevant provisions of the DGCL (the
time of such filing being herein referred to as the "Effective Time").
I.4 Certificate of Incorporation of the Surviving Corporation. At the
Effective Time and without any further action on the part of BAP or Newco, the
Certificate of Incorporation of BAP, as in effect at the Effective Time, shall
be the Certificate of Incorporation of the Surviving Corporation.
1.5. By-Laws of the Surviving Corporation. At the Effective Time and
without any further action on the part of BAP or Newco, the By-Laws of BAP, as
in effect at the Effective Time, shall be the By-Laws of the Surviving
Corporation.
1.6 Directors of the Surviving Corporation. The directors of BAP
immediately prior to the Effective Time shall resign, effective as of the
Effective Time, and shall be replaced, at the Effective Time, by the individuals
listed in Exhibit 1.6 hereto, who shall serve as the directors of the Surviving
Corporation, each of such directors to hold office, subject to the applicable
provisions of the Certificate of Incorporation and By-Laws of the Surviving
Corporation, until their respective successors are duly elected or appointed and
qualified.
1.7 Officers of the Surviving Corporation. The officers of BAP immediately
prior to the Effective Time shall resign, effective as of the Effective Time,
and shall be replaced, at the Effective Time, by the individuals listed in
Exhibit 1.7 hereto, who shall serve as officers of the Surviving Corporation
until their respective successors are duly elected or appointed and qualified.
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1.8 Conversion of Stock. At the Effective Time, by virtue of the Merger
and without any action on the part of the holders thereof:
(a) Each share of Common Stock, par value $.001 per share ("BAP
Common Stock"), of BAP that shall be issued and outstanding at the Effective
Time (other than (i) shares of BAP Common Stock as to which appraisal has been
properly demanded in accordance with Section 262 of the DGCL and Section 1.9
below, (ii) shares of BAP Common Stock, if any, that are held by Paging
Partners, Newco, or any other wholly owned subsidiary of Paging Partners, and
(iii) shares of BAP Common Stock held in the treasury of BAP) shall be converted
into the right to receive 88.92076 (the "Conversion Number") shares of Common
Stock, par value $.01 per share, of Paging Partners ("Paging Partners Common
Stock"), subject to adjustment as provided in paragraphs (d) and (e) of this
section (the "Merger Consideration"). Subject to Section 1.8(e) hereof, the
total number of shares of Paging Partners Common Stock to be issued to all
holders of BAP Common Stock shall not exceed (i) 8,892,076 shares, excluding
shares issuable upon the exercise of the Rollover Options (as defined below), if
the Motorola Warrants are not exercised prior to or at the Effective Time or
(ii) 9,160,273 shares, excluding shares issuable upon the exercise of the
Rollover Options, if all of the Motorola Warrants are exercised prior to or at
the Effective Time.
(b) Each share of common stock, par value $0.01 per share ("Newco
Common Stock"), of Newco that is issued and outstanding immediately prior to the
Effective Time shall be converted into and represent one fully paid and
non-assessable share of common stock of the Surviving Corporation.
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(c) Each share of BAP Common Stock owned by Paging Partners, Newco
or any other wholly owned subsidiary of Paging Partners or held in the treasury
of BAP shall be canceled and cease to exist at the Effective Time, and no
consideration shall be paid with respect thereto.
(d) Notwithstanding the foregoing, no fractional shares of Paging
Partners Common Stock shall be issued. In lieu of fractional shares, the number
of shares of Paging Partners Common Stock to be issued to any former stockholder
of BAP who would otherwise be entitled to a fractional share of Paging Partners
Common Stock shall be rounded to the nearest number of whole shares of Paging
Partners Common Stock (with any fractional share greater than or equal to
one-half share being rounded up).
(e) If, between the date hereof and the date of payment of any
shares of Paging Partners Common Stock pursuant to Section 1.10, (i) the
outstanding shares of BAP Common Stock or Paging Partners Common Stock shall be
changed into a different number of shares by reason of any reclassification,
recapitalization, exchange of shares, stock split, reverse stock split,
combination, stock dividend, or similar change in capitalization, (ii) any
dividend on shares of BAP Common Stock or Paging Partners Common Stock shall be
declared with a record date within said period, (iii) any shares of BAP Common
Stock shall be repurchased pursuant to the Equity Sponsor Agreement (as defined
below), (iv) any shares of BAP Preferred Stock shall be reduced pursuant to the
BAP Stock Purchase Agreement (as defined below), or (v) any of the Motorola
Warrants (as defined below) shall be exercised, the Conversion Number shall be
appropriately adjusted so that immediately after consummation of the Merger, (i)
the 6,308,054 shares of Paging Partners Common Stock outstanding on the date
hereof, plus (ii) the number of
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shares of Paging Partners Common Stock issued upon the exercise, if any, of the
Motorola Warrants will equal 41.5% of the shares of Paging Partners Common Stock
outstanding immediately following the Effective Time.
1.9 Dissenting Shares. Notwithstanding the provisions of Section 1.8 or
any other provision of this Agreement to the contrary, shares of BAP Common
Stock that are issued and outstanding immediately prior to the Effective Time
and that are held by stockholders who have not voted such shares in favor of the
approval and adoption of this Agreement and who shall have properly demanded
appraisal of such shares in accordance with Section 262 of the DGCL (the
"Dissenting Shares") shall not be converted into the right to receive the Merger
Consideration at or after the Effective Time, unless and until the holder of
such Dissenting Shares shall have failed to perfect or shall have effectively
withdrawn or lost such right to appraisal and payment under the DGCL. If a
holder of Dissenting Shares shall have so failed to perfect or shall have
effectively withdrawn or lost such right to appraisal and payment, then, as of
the Effective Time or the occurrence of such event, whichever last occurs, such
holder's Dissenting Shares shall be converted into and solely represent the
right to receive the Merger Consideration, without any interest thereon, as
provided in Section 1.8 hereof. BAP shall give Paging Partners notice of any
demand made by or on behalf of any such holder to be paid the "fair value" of
his shares, as provided in Section 262 of the DGCL, and Paging Partners and the
Surviving Corporation shall have the sole and exclusive right to conduct and
direct, in their sole discretion, all negotiations, proceedings and ultimate
disposition with respect to any such demands in any manner that Paging Partners
and the Surviving Corporation may elect.
1.10 Exchange of Certificates.
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(a) At or prior to the Effective Time, Paging Partners shall
contribute to Newco, and Newco shall deposit with an exchange agent to be
selected by the parties hereto prior to the Effective Time (which may be Paging
Partners or one of its affiliates) (the "Exchange Agent"), 8,892,076 shares of
Paging Partners Common Stock (subject to adjustment in the event that the
Conversion Number is adjusted pursuant to Section 1.8(e) hereof).
(b) After the Effective Time, each holder of a certificate or
certificates that immediately prior to the Effective Time represented issued and
outstanding shares of BAP Common Stock (other than Dissenting Shares and other
than shares of BAP Common Stock that are held by Paging Partners, Newco or any
other wholly owned subsidiary of Paging Partners or are held in the treasury of
BAP) (the "Certificates") shall surrender the same to the Exchange Agent. After
the Effective Time, upon receipt by the Exchange Agent of (i) the Certificates
duly endorsed in proper form for transfer and (ii) the federal taxpayer
identification number of each holder of Certificates, the Exchange Agent shall
issue, to each former holder of BAP Common Stock (other than Dissenting Shares
and other than shares of BAP Common Stock that are held by Paging Partners,
Newco or any other wholly owned subsidiary of Paging Partners or are held in the
treasury of BAP), a certificate representing the number of shares of Paging
Partners Common Stock that such holder is entitled to receive pursuant to
Section 1.8 hereof. Pending such surrender and exchange, each Certificate shall
be deemed for all corporate purposes to evidence the number of whole shares of
Paging Partners Common Stock into which such shares of BAP Common Stock
evidenced by such Certificate shall have been so converted by the Merger. All
certificates for shares of Paging Partners Common Stock to be issued in the
Merger
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shall be issued in the same name in which the Certificate surrendered in
exchange therefore is registered.
(c) No holder of a Certificate shall be entitled to receive any
dividend or other distribution from Paging Partners in respect of the Paging
Partners Common Stock to be issued in respect thereof until the surrender of
such Certificate. Upon such surrender, there shall be paid to the holder the
amount of dividends or other distributions (without interest) that theretofore
became payable but that were not paid by reason of the foregoing, with respect
to the number of shares of Paging Partners Common Stock represented by the
certificates issued upon such surrender.
(d) At any time following one year after the Effective Time, the
Surviving Corporation shall be entitled to require the Exchange Agent to deliver
to the Surviving Corporation any shares of Paging Partners Common Stock that had
been deposited with to the Exchange Agent by or on behalf of Paging Partners,
Newco or the Surviving Corporation and have not been disbursed to holders of
Certificates. Any holders of Certificates who have not theretofore complied with
Section 1.10(b) hereof shall thereafter look (subject to applicable escheat and
other similar laws) only to the Surviving Corporation for payment of their claim
for the Merger Consideration, without any interest thereon, and shall have no
greater rights against the Surviving Corporation than may be accorded to general
creditors of the Surviving Corporation under Delaware law.
1.11 No Further Rights or Transfers. At and after the Effective Time,
holders of Certificates shall cease to have any rights as stockholders of the
Surviving Corporation, except for the right to surrender such Certificates in
exchange for the Merger Consideration pursuant to
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Sections 1.8 and 1.10 hereof or to perfect their right to receive payment for
their shares of BAP Common Stock pursuant to Section 262 of the DGCL and Section
1.9 hereof. No transfer of shares of BAP Common Stock outstanding immediately
prior to the Effective Time shall be made on the stock transfer books of the
Surviving Corporation after the Effective Time. If, after the Effective Time,
Certificates formerly representing shares of BAP Common Stock are presented to
the Surviving Corporation, they shall be canceled and exchanged for the Merger
Consideration.
1.12 Registration Rights. Paging Partners shall provide the holders of the
shares of Paging Partners Common Stock to be received in the Merger by the
holders of shares of BAP Common Stock with certain rights to register the resale
of such shares of Paging Partners Common Stock under the Securities Act of 1933,
as amended (the "Securities Act"), as set forth in a registration rights
agreement substantially in the form attached as Exhibit 1.12 hereto (the
"Registration Rights Agreement").
1.13 Closing. The closing of the Merger and the other transactions
contemplated by this Agreement shall, unless another date or place is agreed to
in writing by the parties hereto, take place at a location and time mutually
agreed upon by Paging Partners, Newco and BAP as soon as practicable, and in any
event within five business days, following the satisfaction (or, to the extent
permitted by law, the waiver) of all of the conditions to the Merger, provided
that this Agreement shall not have been terminated pursuant to Article VI
hereof. Such date, time and location shall be confirmed in writing by such
parties not less than 10 days prior to the scheduled date of such closing. The
term "Closing," when used in this Agreement shall mean the Effective Time.
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1.14 BAP Preferred Stock. Immediately prior to the Effective Time, the
outstanding shares of Series A Convertible Preferred Stock, par value $0.001 per
share, of BAP (the "BAP Preferred Stock") shall be automatically converted into
the number of shares of BAP Common Stock for which such shares of BAP Preferred
Stock are exercisable, convertible or exchangeable, and such shares of BAP
Common Stock shall be deemed to be issued and outstanding at the Effective Time
for purposes of Section 1.8 hereof.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF BAP
BAP hereby represents and warrants to Paging Partners and Newco that:
2.1 Organization. BAP is a corporation duly organized, validly existing
and in good standing under the laws of the state of Delaware, with all requisite
power and authority to own, operate and lease its properties and to carry on its
business as now conducted and as proposed to be conducted. True, correct and
complete copies of the Certificate of Incorporation and By-laws of BAP, each as
amended through the date hereof, have been delivered to Paging Partners and
Newco, and each of such documents will continue in effect, except as otherwise
contemplated in Section 2.3 hereof, until immediately prior to the Effective
Time.
2.2 No Subsidiaries. BAP does not have any direct or indirect Subsidiaries
and does not, directly or indirectly, own or have the right to acquire any
interest in any Person other than pursuant to the Bell Atlantic Acquisition
Agreement. Except as set forth on Schedule 2.2 of the Disclosure Schedule
delivered to Paging Partners and Newco (the "BAP Disclosure Schedule"), BAP has
not made any investment in, loan to, or advance of cash or other extension of
credit to
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any Person (other than travel and similar advances to officers or employees in
the ordinary course of business).
2.3 Authorization. BAP has the necessary corporate power and authority to
enter into this Agreement and to carry out its obligations hereunder. The
execution and delivery of this Agreement by BAP, the performance by BAP of its
obligations hereunder, and the consummation by BAP of the transactions
contemplated hereby have been duly and validly authorized by the Board of
Directors and Stockholders of BAP, and no other corporate proceeding on the part
of BAP is necessary for the execution and delivery of this Agreement by BAP, the
performance of its obligations hereunder and the consummation of the
transactions contemplated hereby, except for (i) the filing of the Certificate
of Merger and (ii) approval by the Board of Directors and Stockholders of BAP of
any amendment of the Certificate of Incorporation of BAP to change the capital
structure of BAP as may be required to obtain the debt and equity financing to
be provided by Finova Capital Corporation ("Finova") or another senior lender
(other than Motorola, Inc.) and the Persons that will be stockholders of BAP
immediately prior to the closing of the Bell Atlantic Acquisition) required for
the transactions contemplated by this Agreement and the Bell Atlantic
Acquisition Agreement (the "Financing") and (iii) the authorization by the Board
of Directors of BAP of the definitive agreements providing for the Financing
including, without limitation, (a) the credit agreement and related agreements
to be entered into with Finova Capital Corporation and/or another lender
(collectively, the "BAP Credit Agreement") in connection with the issuance by
BAP of indebtedness to finance the Bell Atlantic Acquisition and (b) the secured
promissory note to be issued by BAP at the closing of the Bell Atlantic
Acquisition (the "Bell Atlantic Note" and, together with the BAP Credit
Agreement, the "BAP Debt Agreements"), and
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the transactions contemplated thereby, which actions will be taken prior to the
execution and delivery of the BAP Debt Agreements. This Agreement has been duly
and validly executed and delivered by BAP and, assuming the due authorization,
execution and delivery hereof by each of Paging Partners and Newco, is a legal,
valid and binding obligation of BAP, enforceable against BAP in accordance with
its terms, except as enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium, or other similar
laws now or hereafter in effect relating to creditors' rights generally or by
general principles of equity (regardless of whether enforceability is considered
in a proceeding at law or in equity).
2.4 Capitalization.
(a) As of the date hereof, the authorized capital stock of BAP
consists of 85,000 shares of Preferred Stock, par value $.001 per share, of
which 80,000 shares have been designated "Series A Convertible Preferred Stock"
(the "BAP Preferred Stock"), and 110,000 shares of BAP Common Stock. As of the
date hereof, 22,000 shares of BAP Common Stock and 15,000 shares of BAP
Preferred Stock were issued and outstanding. As of the date hereof, no shares of
BAP Common Stock and no shares of BAP Preferred Stock were held in BAP's
treasury. Immediately prior to the Effective Time, 22,000 shares of BAP Common
Stock and 78,000 shares of BAP Preferred Stock will be issued and outstanding,
subject to reduction pursuant to the BAP Stock Purchase Agreement and the Equity
Sponsor Agreement. Immediately prior to the Effective Time, no shares of BAP
Common Stock and no shares of BAP Preferred Stock will be held in BAP's
treasury. As of the date hereof, all of the outstanding shares of BAP Common
Stock and BAP Preferred Stock are, and at the Effective Time will be,
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validly issued, fully paid, nonassessable, and free of preemptive rights and
cumulative voting rights, with no personal liability attaching to the ownership
thereof.
(b) As of the date hereof, 15,000 shares of BAP Common Stock are
issuable upon the conversion of the BAP Preferred Stock outstanding on the date
hereof, and 7,000 shares of BAP Common Stock are issuable upon the exercise of
options ("BAP Options") to purchase shares of BAP Common Stock under the BAP
1998 Omnibus Stock Option Plan (the "BAP Option Plan") assuming that the BAP
Options were exercisable on the date hereof. Immediately prior to the Effective
Time, 78,000 shares of BAP Common Stock will be issuable upon the conversion of
the then outstanding shares of BAP Preferred Stock. Except as set forth on
Schedule 2.4, as of the date hereof there are, and as of the Effective Time
there will be, no outstanding options, warrants, subscriptions, conversion or
other rights, agreements (other than this Agreement) or other commitments
obligating BAP to issue any shares of its capital stock or any securities
convertible into, exchangeable for or evidencing the right to subscribe for any
shares of its capital stock. At the Effective Time, the number of shares of BAP
Common Stock that will be outstanding on a fully diluted basis (excluding shares
issuable upon the exercise of the BAP Options) shall not exceed 100,000 shares.
(c) There are no outstanding obligations, contingent or otherwise,
of BAP to redeem, purchase or otherwise acquire any capital stock or other
securities of BAP other than those set forth in the Equity Sponsor Agreement,
dated as of the date hereof (the "Equity Sponsor Agreement"), among BAP and the
other parties named therein.
(d) BAP is not in violation of and has not violated any federal or
state securities laws in connection with any transaction relating to BAP,
including without limitation,
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the acquisition of any stock, business or assets of any third party or the
issuance of any capital stock of BAP.
2.5 No Prior Activities. BAP has not incurred, directly or indirectly, any
liabilities or obligations, except those incurred in connection with (i) its
incorporation, (ii) the issuance and sale of the BAP Common Stock and the
incurrence of indebtedness for borrowed money in the amount of $750,000 pursuant
to the Securities Purchase Agreements, dated as of July 7, 1998 and November 6,
1998 between BAP and the respective parties named therein, (iii) the issuance
and sale of the BAP Preferred Stock pursuant to the Preferred Stock Purchase
Agreement, dated as of the date hereof (the "BAP Stock Purchase Agreement"),
between BAP and the respective parties named therein, (iv) the employment
agreement, dated as of July 7, 1998, between BAP and John X. Adiletta, as
amended by the letter agreement dated August 15, 1998, between BAP and John X.
Adiletta (the "Adiletta Employment Agreement"), (v) the letter agreement, dated
as of July 7, 1998 (the "Deerfield Agreement"), by and between BAP and Deerfield
Partners, LLC, a Delaware limited liability company ("Deerfield"), (vi) the
negotiation of this Agreement, the Bell Atlantic Acquisition Agreement and the
Financing and the consummation of the transactions contemplated hereby and
thereby and other activities incidental thereto, (vii) in the event that the
Merger and the Bell Atlantic Acquisition shall not have occurred simultaneously,
the ownership and operation of the Bell Atlantic Paging Business following the
Bell Atlantic Acquisition (the "BAP Paging Business"), and (viii) such other
activities as are incidental and related to the foregoing. BAP has not engaged,
directly or indirectly, in any business or activity of any type or kind, or
entered into any agreement or arrangement with any person or entity, and is not
subject to or bound by any obligation or undertaking, and has not incurred any
material liability that, in each case, is not
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contemplated by or in connection with this Agreement, the Bell Atlantic
Acquisition Agreement, the Financing, the transactions contemplated hereby and
thereby or, in the event that the Merger and the Bell Atlantic Acquisition shall
not have occurred simultaneously, the ownership and operation of the BAP Paging
Business.
2.6 Transaction Documents. BAP has all requisite corporate power and
authority to execute, deliver and perform its obligations under the other
Transaction Documents (as defined in Article VII), including the Bell Atlantic
Acquisition Agreement; each of the other Transaction Documents has been duly and
validly authorized, executed and delivered by BAP, and each constitutes a legal,
valid and binding obligation of BAP, enforceable against BAP in accordance with
its terms (assuming due authorization, execution and delivery of each other
Transaction Document by any other party thereto), except to the extent that (a)
the enforcement thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and (b) general principles of
equity (regardless of whether enforceability is considered in a proceeding at
law or in equity). A true, correct and complete copy of each of the other
Transaction Documents, including the Bell Atlantic Acquisition Agreement, in
each case, as amended through the date hereof, has been delivered to Paging
Partners and Newco.
2.7 Bell Atlantic Representations and Warranties. BAP has heretofore
provided Paging Partners and Newco with true, complete, and correct copies of
the Bell Atlantic Acquisition Agreement and all Exhibits and Schedules thereto.
Subject to the terms of this Agreement, the text of each of the representations
and warranties of the OTCs (as defined in Article VII) and BAPCO (as defined in
Article VII) contained in Sections 3.1 and 3.2,
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respectively, of the Bell Atlantic Acquisition Agreement (the "Bell Atlantic
Representations and Warranties") is hereby incorporated by reference mutatis
mutandis without regard to any waiver or amendment thereto from the form of the
Bell Atlantic Acquisition Agreement existing on the date of this Agreement,
other than those waivers and amendments (i) of which Paging Partners and Newco
have been advised a reasonable time prior to the Effective Time, (ii) that have
been consented to by Paging Partners, such consent not to be unreasonably
withheld, and (iii) that are subsequently confirmed to Paging Partners and Newco
in writing. Subject to Section 8.5 hereof, each of the Bell Atlantic
Representations and Warranties is herein made by BAP, as if BAP were the Bell
Atlantic Subsidiary making each such representation and warranty; provided,
however, that each representation is only made to the best of BAP's knowledge,
after reasonable inquiry.
2.8 Financing. BAP has heretofore (i) received written commitments, copies
of which have previously been delivered to Paging Partners and Newco, to provide
the debt portions of the Financing (all of which are subject to the negotiation,
preparation and execution of the definitive BAP Credit Agreement, certain of
which will require the participation of Paging Partners, and Newco, and the
fulfillment of various conditions precedent contained therein) and (ii) entered
into the BAP Stock Purchase Agreement with members of senior management and
others (together with certain permitted assignees, the "Equity Participants")
that provide for the issuance and sale of the BAP Preferred Stock to provide the
equity portion of the Financing (which are subject to the fulfillment of various
conditions precedent contained therein). Assuming satisfaction of the conditions
to BAP's obligation to close under the Bell Atlantic Acquisition Agreement, BAP
will have sufficient financing to consummate the Bell Atlantic Acquisition and
the Merger and to pay related fees and expenses.
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2.9 Consents and Approvals. Except as set forth on Schedule 2.9 of the BAP
Disclosure Schedule and except for such filings as may be required under
Regulation D under the Securities Act or state blue sky laws in connection with
the sale of the BAP Preferred Stock to the Equity Participants, no filing or
registration with, no notice to and no permit, authorization, consent or
approval of any public or governmental body or authority is necessary for the
consummation by BAP of the transactions contemplated by this Agreement or the
other Transaction Documents or to enable the Surviving Corporation to continue
to conduct its business after the Effective Time in a manner that is in all
material respects consistent with that in which such business is currently
conducted.
2.10 No Conflict. Except as set forth on Schedule 2.10 of the BAP
Disclosure Schedule, neither the execution and delivery by BAP of this Agreement
or any Transaction Document to which BAP is a party nor the consummation by BAP
of the transactions contemplated hereby or thereby nor the compliance by BAP
with any of the provisions hereof or thereof will (i) conflict with or result in
any breach of any provision of the Certificate of Incorporation and By-Laws of
BAP, (ii) 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, agreement or
other instrument or obligation to which BAP is a party or by which it or any of
its properties or assets may be bound or (iii) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to BAP or any of its
properties or assets, except, in the case of clauses (ii) and (iii) hereof, for
those violations or breaches that would not, individually or in the aggregate,
have a material adverse effect on the business, condition
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(financial or otherwise), assets or liabilities (a "Material Adverse Effect") of
BAP, the Bell Atlantic Acquisition or the Merger.
2.11 Affiliated Transactions. No officer, director, shareholder, partner
or agent of or consultant to, or to the knowledge of BAP any of its Affiliates,
owes, as of the date hereof, or will owe at the Effective Time, any outstanding
indebtedness to BAP, except for a promissory note in the amount of $240,000 to
be issued by John X. Adiletta to BAP (the "Adiletta Note") immediately prior to
the Effective Time in connection with the purchase of shares of BAP Preferred
Stock.
2.12 Certain Agreements. The agreements and plans set forth on Schedule
2.12 of the BAP Disclosure Schedule (the "BAP Employ Agreements") are the only
employment, severance, consulting or similar agreements of BAP containing a
"change of control" provision.
2.13 Brokers. No investment bank, broker or finder is entitled to any fee
or commission in connection with the transactions contemplated by this Agreement
based upon arrangements made by or on behalf of BAP, other than (i) Deerfield
which fee shall not exceed $400,000 and (ii) PCS Management, Inc., which fee
shall not exceed $225,000.
2.14 Disclosure.
(a) Neither this Agreement nor any Transaction Document nor any
exhibit or schedule hereto nor any statement, list or certificate delivered to
Paging Partners or Newco pursuant hereto or pursuant to any written request
therefor, contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements contained herein and
therein, in light of the circumstances in which they were made, not misleading.
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(b) None of the information supplied in writing by BAP specifically
for inclusion in the letter to stockholders, notice of meeting, proxy or
information statement and form of proxy, to be distributed to stockholders of
Paging Partners in connection with the Merger (collectively, the "Paging
Partners Proxy Statement") will, as of the date the Paging Partners Proxy
Statement is first mailed to such stockholders, contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. BAP shall promptly
notify Paging Partners and Newco of any change in the information so supplied
that would make the foregoing representation and warranty untrue.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PAGING PARTNERS AND NEWCO
Paging Partners and Newco, jointly and severally, represent and warrant to
BAP as follows:
3.1 Organization, Etc. Each of Paging Partners and Newco is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware. Each of Paging Partners and Newco is qualified or licensed to
conduct business in each jurisdiction necessary for Paging Partners and Newco to
own, lease and operate its properties and assets and to carry on its business as
now conducted or as proposed to be conducted. Each of Paging Partners and Newco
has full power and authority (corporate and otherwise) to own, lease and operate
its properties and assets and to carry on its business as now conducted and as
proposed to be conducted. True, correct and complete copies of the Certificate
of Incorporation and Bylaws of each of Paging Partners and Newco, each as
amended through the date hereof, have been
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delivered to BAP, and each of such documents will continue in effect without
further amendment through the Effective Time.
3.2 Subsidiaries. Paging Partners has no direct or indirect Subsidiaries
other than Newco. Neither Paging Partners nor Newco directly or indirectly owns
or has the right to acquire any interest in any Person (other than, in the case
of Paging Partners, Newco). Except as set forth in Schedule 3.2 of the
Disclosure Schedule delivered to BAP (the "Paging Partners Disclosure
Schedule"), neither Paging Partners nor Newco has made any investment in, loan
to, or advance of cash or other extension of credit to any Person (other than
customer receivables and other than travel and similar advances to employees in
the ordinary course of business). Paging Partners owns all of the issued and
outstanding shares of capital stock of Newco free and clear of any lien, claim,
encumbrance, charge or agreement with respect thereto, other than a lien (the
"Motorola Lien") in favor of Motorola, Inc., a Delaware corporation
("Motorola"), under the Credit Agreement, dated as of June 29, 1995, between
Motorola and Paging Partners (as amended, the "Motorola Credit Agreement").
3.3 Authorization, Etc.
(a) Each of Paging Partners and Newco has the necessary corporate
power and authority to enter into this Agreement and, to the extent required by
the Financing, the BAP Debt Agreements and to carry out its obligations
hereunder and thereunder (except for the approval and adoption of this Agreement
by the stockholders of Paging Partners). The execution and delivery of this
Agreement and, to the extent required by the Financing, the BAP Debt Agreements,
by Paging Partners and Newco, the performance by Paging Partners and Newco of
their obligations hereunder and thereunder, and the consummation by Paging
Partners and Newco
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of the transactions contemplated hereby and thereby have been duly and validly
authorized by the board of directors of each of Paging Partners and Newco, and
no other corporate proceedings on the part of Paging Partners and Newco are
necessary to authorize and approve this Agreement and the BAP Debt Agreements
and the consummation of the transactions contemplated hereby and thereby (except
for the approval and adoption of this Agreement by the stockholders of Paging
Partners). As of the date hereof, there are no agreements, arrangements or other
requirements that require that the transactions contemplated by this Agreement,
considered together in a single vote, be approved by more than a majority of the
outstanding shares of Paging Partners Common Stock.
(b) This Agreement has been duly and validly executed and delivered
by each of Paging Partners and Newco, and assuming the due authorization,
execution and delivery hereof by BAP, is a legal, valid and binding obligation
of each of Paging Partners and Newco enforceable against each of Paging Partners
and Newco in accordance with its terms, except as enforceability thereof may be
limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally or by general principles of equity (regardless of
whether enforceability is considered in a proceeding at law or in equity).
(c) The respective Boards of Directors of Paging Partners and Newco
have taken all appropriate and necessary action such that the provisions of
Section 203 of the DGCL will not apply to any of the transactions contemplated
by this Agreement, including without limitation the voting of the shares of
Paging Partners Common Stock pursuant to the Voting
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Agreement and the Merger. No other anti-takeover or similar statute or
regulation applies or purports to apply to the transactions contemplated by this
Agreement.
3.4 Capitalization.
(a) As of September 30, 1998, the authorized capital stock of Paging
Partners consists of 1,000,000 shares of Preferred Stock, par value $.01 per
share (the "Paging Partners Preferred Stock"), and 20,000,000 shares of Paging
Partners Common Stock. As of September 30, 1998, 6,308,054 shares of Paging
Partners Common Stock and no shares of Paging Partners Preferred Stock were
issued and outstanding. As of September 30, 1998, no shares of Paging Partners
Common Stock and no shares of Paging Partners Preferred Stock were held in
Paging Partners' treasury. All of the outstanding shares of Paging Partners
Common Stock have been validly issued and, as of the date hereof, are and, at
the Effective Time, will continue to be fully paid, nonassessable and free of
preemptive rights and cumulative voting rights, with no personal liability
attaching to the ownership thereof. When issued in accordance with the terms of
this Agreement, all of the shares of Paging Partners Common Stock constituting
the Merger Consideration will be validly issued, fully paid, nonassessable and
free of preemptive rights and cumulative voting rights, with no personal
liability attaching to the ownership thereof.
(b) As of the date hereof, the authorized capital stock of Newco
consists of 1,000 shares of Newco Common Stock. As of such date, 1,000 shares of
Newco Common Stock were issued and outstanding, and no shares of Newco Common
were held in Newco's treasury. All of the outstanding shares of Newco Common
Stock have been validly issued and, as of the date hereof, are and, at the
Effective Time, will continue to be fully paid, nonassessable and free
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of preemptive and cumulative voting rights, with no personal liability attaching
to the ownership thereof.
(c) As of September 30, 1998, (i) 376,200 shares of Paging Partners
Common Stock were issuable upon the exercise of options ("Paging Partners
Options") to purchase shares of Paging Partners Common Stock under the Paging
Partners Corporation 1994 Incentive Stock Option Plan (the "Paging Partners
Option Plan"), (ii) 190,259 shares of Paging Partners Common Stock may be
issuable upon the exercise of warrants granted to Motorola (the "Motorola
Warrants") in connection with the Motorola Credit Agreement, (iii) 1,800,000
shares of Paging Partners Common Stock were issuable upon the exercise of
1,800,000 warrants with an exercise price of $6.60 (the "Public Warrants")
issued under the Warrant Agreement, dated as of May 26, 1994 (the "Paging
Partners Warrant Agreement"), between Paging Partners and Continental Stock
Transfer & Trust Company, as warrant agent, and (iv) 340,000 shares of Paging
Partners Common Stock were issuable upon the exercise of an option (the "Unit
Purchase Option") to purchase 170,000 units (the "Units") (each Unit, consisting
of a share of Paging Partners Common Stock and a warrant to purchase one share
of Paging Partners Common Stock at an exercise price of $6.60) at an exercise
price of $9.90 per Unit, which were granted to GKN Securities Corporation and
certain affiliated individuals. Except as set forth above, as of the date
hereof, there are and, as of the Effective Time, there will be no outstanding
options, warrants, subscriptions, conversion or other rights, agreements (other
than this Agreement) or commitments obligating Paging Partners or Newco to issue
any shares of the capital stock or any securities convertible into, exchangeable
for or evidencing the right to subscribe for any shares of the capital stock of
Paging Partners or Newco. None of the Paging Partners Options will become
subject to
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(i) any termination or cancellation requiring the payment of any consideration
or (ii) any adjustment in the exercise price (except in connection with the
Reverse Stock Split (as defined below), in either case, in connection with or as
a result of the Merger or any other transaction contemplated by this Agreement.
At the Effective Time, the number of shares of Paging Partners Common Stock that
will be outstanding (excluding shares issuable upon the exercise of the Paging
Partners Options, the Motorola Warrants, the Public Warrants and the Unit
Purchase Option) shall not exceed 6,308,054 shares.
(d) Since September 30, 1998, neither Paging Partners nor Newco has
authorized or issued any shares of its capital stock (except shares of Paging
Partners Common Stock issued upon exercise of Paging Partners Options granted
prior to September 30, 1998) or authorized or issued any option, warrant,
subscription, conversion or other right, agreement or commitment (other than
this Agreement) obligating it to issue any shares of its capital stock or any
securities convertible into, exchangeable for or evidencing the right to
subscribe for any shares of its capital stock. There are no outstanding
obligations, contingent or otherwise, of either Paging Partners or Newco to
redeem, purchase or otherwise acquire any capital stock or other securities of
Paging Partners or Newco.
(e) Neither Paging Partners nor Newco is in violation of or has
violated any federal or state securities laws in connection with any transaction
relating to Paging Partners or Newco, including without limitation, the
acquisition of any stock, business or assets of any third party or the issuance
of any capital stock of Paging Partners or Newco.
3.5 No Prior Activities. Newco has not incurred, directly or indirectly,
any liabilities or obligations, except those incurred in connection with its
incorporation or with the negotiation
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of this Agreement and the consummation of the transactions contemplated hereby.
Newco has not engaged, directly or indirectly, in any business or activity of
any type or kind, or entered into any agreement or arrangement with any person
or entity and is not subject to or bound by any obligation or undertaking, and
has not incurred any material liability in each case, except as contemplated by
or in connection with this Agreement and the transactions contemplated hereby.
3.6 Consents and Approvals. Except as set forth on Schedule 3.6 to the
Paging Partners Disclosure Schedule and except for any filings under federal or
state securities laws in connection with the Merger, no filing or registration
with, no notice to and no permit, authorization, consent or approval of any
public or governmental body or authority is necessary for the consummation by
Paging Partners or Newco of the transactions contemplated by this Agreement or
to enable Paging Partners to continue to conduct its business after the
Effective Time in a manner that is in all material respects consistent with that
in which such business is currently conducted.
3.7 No Conflict. Except as set forth on Schedule 3.7 to the Paging
Partners Disclosure Schedule, neither the execution and delivery of this
Agreement by Paging Partners and Newco nor the consummation by Paging Partners
and Newco of the transactions contemplated hereby nor the compliance by Paging
Partners and Newco with any of the provisions hereof will (i) conflict with or
result in any breach of any provision of the Certificate of Incorporation and
By-Laws of Paging Partners or Newco, as the case may be, (ii) 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, agreement or other instrument or obligation
to
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which Paging Partners or Newco is a party or by which either of them or any of
their properties or assets may be bound or (iii) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to Paging Partners or
Newco or any of their properties or assets.
3.8 No Undisclosed Liabilities. Except as and to the extent reflected on
the audited consolidated balance sheet of Paging Partners as at December 31,
1997, including the notes thereto (the "1997 Balance Sheet"), or in the
unaudited consolidated balance sheets included in Paging Partners' Quarterly
Reports on Form 10-Q for the quarters ended March 31, 1998 (the "March 10-Q")
and June 30, 1998 (the "June 10-Q") or Paging Partners's Annual Report on Form
10-KSB for the fiscal year ended December 31, 1997 (the "1997 10-K") or
disclosed pursuant to Section 3.10 hereof and except for (a) liabilities or
obligations incurred in the ordinary course of business consistent with past
practice since June 30, 1998, (b) liabilities incurred in connection with or as
a result of the Merger, and (c) liabilities set forth on Schedule 3.8 of the
Paging Partners Disclosure Schedule, neither Paging Partners nor Newco has, at
the date hereof, or will have, at the Effective Time, any liabilities or
obligations. The aggregate amount of indebtedness and other liabilities of
Paging Partners outstanding under the Motorola Credit Agreement (the "Motorola
Loan") is, as of this date hereof, $1,654,189.98 (excluding interest charges
accruing after September 30, 1998), and will not exceed, at the Effective Time,
$1,654,189.98.
3.9 Financial Statements. Paging Partners has previously furnished BAP
with a copy of its financial statements as of and for the fiscal year ended
December 31, 1997, certified by Berenson & Company (the "Audited 1997
Financials"), and as of and for the six months ended June 30, 1998 (the "Second
Quarter Financials" and, together with the Audited 1997 Financials,
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the "Paging Partners Financial Statements") and with true and complete copies of
each registration statement and proxy statement (including supplements and
amendments thereto) filed by Paging Partners with the SEC since January 1, 1994
and of the following reports filed by Paging Partners with the SEC: Paging
Partners's Annual Reports on Form 10-KSB for each of the three fiscal years in
the periods ended December 31, 1995, December 31, 1996 and December 31, 1997,
and all Quarterly Reports on Form 10- Q and all Current Reports on Form 8-K
filed after January 1, 1995 (the "SEC Filings"). The Paging Partners Financial
Statements and the audited year-end and unaudited interim financial statements
and schedules contained in the SEC Filings (or incorporated therein by
reference) were prepared in accordance with the books and records of Paging
Partners in all material respects and were prepared in accordance with generally
accepted accounting principles applied on a consistent basis throughout the
periods involved, except as otherwise noted therein and except that the
unaudited interim financial statements were or are subject to normal year-end
and audit adjustments that in the aggregate are not material. Each of the
financial statements referred to above fairly presents the financial position of
Paging Partners as of the respective dates set forth therein or the results of
operations and changes in financial position of Paging Partners for the
respective fiscal periods or as of the respective dates set forth therein,
except that the unaudited interim financial statements were or are subject to
normal year-end and audit adjustments that in the aggregate are not material.
Each such registration statement, proxy statement and SEC Filing did not, on the
date of effectiveness in the case of such registration statements, on the date
of mailing and on the date of any stockholder meetings in the case of such proxy
statements and on the date of filing in the case of such SEC Filings, contain
any untrue statement of a material fact or omit to state a material fact
required to
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be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. Each SEC Filing, as of
the date of its filing, complied as to form with the requirements of the
Exchange Act.
3.10 Litigation. Except as set forth on Schedule 3.10 of the Paging
Partners Disclosure Schedule, there is no litigation, including without
limitation any arbitration, investigation or other proceeding of or before any
court, arbitrator or governmental or regulatory official, body or authority
(collectively, "Proceedings"), pending or, to the knowledge of any of the Senior
Officers (as defined below) of Paging Partners or Newco, threatened against
Paging Partners or Newco that would reasonably be expected to have a Material
Adverse Effect on Paging Partners and Newco, taken as a whole, or on the
transactions contemplated by this Agreement and the Transaction Documents.
Except as set forth on Schedule 3.10 of the Paging Partners Disclosure Schedule,
neither Paging Partners nor Newco is a party to or subject to the provisions of
any judgment, order, writ, injunction, decree or award of any court, arbitrator
or governmental or regulatory official, body or authority (collectively
"Orders") that would have a Material Adverse Effect on Paging Partners and
Newco, taken as a whole or on the transactions contemplated by this Agreement
and the Transaction Documents. As used herein, "Senior Officers" of Paging
Partners and Newco means the Chairman, Vice Chairman, President, Chief Executive
Officer, Chief Operating Officer, Chief Financial Officer, and any Vice
President, in each case, of Paging Partners or Newco, as the case may be.
3.11 Absence of Changes. Since the date of the 1997 Balance Sheet and
except for, or as a result of, the transactions contemplated by this Agreement
or as set forth on Schedule 3.11 of the Paging Partners Disclosure Schedule,
Paging Partners has conducted its business only in the
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ordinary and usual course consistent with past practice and (a) there has been
no event or condition that would have a Material Adverse Effect on Paging
Partners and Newco, taken as a whole, (b) there has been no damage to or
destruction or loss of property (whether or not covered by insurance) that
individually or in the aggregate, exceeds $25,000, (c) neither Paging Partners
nor Newco has issued or authorized for issuance any equity securities or
redeemed, purchased or otherwise acquired any capital stock or any other equity
interest or declared, set aside or paid any dividend or distribution or
authorized or effected any split, combination or reclassification of capital
stock as any other equity interest or any securities convertible into or
exchangeable for or evidencing the right to subscribe for shares of its capital
stock or any other equity interest, (d) neither Paging Partners nor Newco has
increased the compensation of, or paid or authorized any bonus to, any of its
officers or directors, or the rate of pay of its employees as a group, (e) there
has been no resignation or termination of employment of any key officer,
consultant or employee of Paging Partners or Newco, (f) there has been no sale,
transfer or other disposition of assets or commitment therefor other than sales
in the ordinary course of business consistent with past practice, or any
acquisition of any material assets, (g) neither Paging Partners nor Newco has
made any loans to any of its employees, officers or directors other than travel
advances and other advances made in the ordinary course of business, and no Lien
(other than a Permitted Lien) has been placed on any of the assets of Paging
Partners or Newco, and (h) neither Paging Partners nor Newco has taken any
action that would have been prohibited under Section 4.4 below had this
Agreement been in effect.
3.12 Authorizations and Compliance. Schedule 3.12 of the Paging Partners
Disclosure Schedule sets forth a complete and accurate list of all material
licenses, franchises,
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permits, consents, approvals, authorizations and orders of governmental
authorities held by Paging Partners or Newco that are in effect and that are
used or useful to operate its business and/or own its assets (collectively, the
"Authorizations"). The Authorizations constitute all licenses, franchises,
permits, registrations, consents, approvals, authorizations and orders required
for the conduct by Paging Partners or Newco of its business as currently
conducted and to own, lease, use and operate its properties at the places and in
the manner in which the business is currently conducted, other than those the
absence of which would not have a Material Adverse Effect on paging Partners or
Newco. Each of Paging Partners and Newco is in compliance in all material
respects with all Authorizations, and all of the Authorizations are in full
force and effect. No proceeding is pending that is likely to have the effect of
revoking or limiting any such Authorizations and, except for amendments to
Authorizations that will be necessary as a result of the transactions
contemplated hereby and that can be obtained in due course prior to the Closing,
the same will not cease to remain in full force and effect by reason of the
transactions contemplated by this Agreement or the Transaction Documents. Each
of Paging Partners and Newco and the operation of its business are in compliance
with all federal, state, local and other statutes, laws, acts, codes, orders,
judgments, decrees, injunctions, regulations, rules, policies, guidelines,
licenses, permits, franchises, by-laws and ordinances (collectively, "Laws")
applicable to it, except where the failure to comply would not individually or
in the aggregate have a Material Adverse Effect on Paging Partners and Newco,
taken as a whole. Neither Paging Partners nor Newco has received any notice from
any governmental or regulatory authority or otherwise of any alleged violation
of or noncompliance with any Law.
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3.13 FCC Licenses. Paging Partners and Newco have heretofore provided BAP
with a list of all of the licenses from the Federal Communications Commission
(the "FCC") held by Paging Partners and have heretofore made available to BAP
true, complete and correct copies of all associated licenses (including any
filings made with the FCC to memorialize the sites of any fill-in transmitter as
defined and provided for under the rules of the FCC but which may not be shown
on such licenses, and any authority provided under the FCC rules for fill-in
transmitters that have not been memorialized by any filing with the FCC, but
that are listed on Schedule 3.13 of the Paging Partners Disclosure Schedule
("Fill-in Transmitters")), files and correspondence with the FCC. The FCC
Licenses identified on Schedule 3.13 of the Paging Partners Disclosure Schedule
as being held by Paging Partners (the "FCC Licenses") are all of the FCC
Licenses held by Paging Partners relating to the Paging Partners Frequencies (as
defined below) or Paging Partners' paging business. Except as set forth on
Schedule 3.13 of the Paging Partners Disclosure Schedule, the FCC Licenses held
by Paging Partners are in full force and effect, are validly held by Paging
Partners, and are free and clear of Liens (other than Permitted Liens),
conditions or other restrictions of such nature as would materially limit the
operation of Paging Partners' antenna and transmitter sites covered by the FCC
Licenses (including sites for any Fill-in Transmitters) held by Paging Partners
(all such sites for Paging Partners collectively, the "Transmitter Facilities").
Except for the FCC Licenses, there are no permits, licenses or other
authorizations currently held by it, or required by Law to be held by it, with
respect to its ownership and operation of its paging business, except where its
failure to hold such a permit, license or other authorization would not
reasonably be expected to materially and adversely affect Paging Partners' and
Newco's ownership and operation of Paging Partners' paging business. The sites
of Paging Partners set
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forth in the FCC Licenses and any associated sites for Fill-in Transmitters
listed therewith in Schedule 3.13 have been or will be timely constructed and
placed into operation with service to subscribers by Paging Partners in
accordance with the rules of the FCC. Except as set forth on Schedule 3.13,
there are no applications, petitions to deny, complaints or proceedings pending
or, to the knowledge of any of the Senior Officers of Paging Partners or Newco,
threatened before the FCC or relating to the operations of or the provision of
service from Paging Partners' and Newco's Transmitter Facilities that are likely
to preclude Paging Partners or Newco from entering into or consummating the
transactions contemplated by this Agreement or that are likely to materially
adversely affect the validity of the FCC Licenses held by Paging Partners or
Newco.
3.14 Equipment and Telecommunications Transmission Services.
(a) Paging Partners has good and valid title to the paging
transmission equipment set forth on Schedule 3.14 of the Paging Partners
Disclosure Schedule (all such equipment described on Schedule 3.14 being
referred to herein as the "Equipment") and to the spare parts for such Equipment
free and clear of all Liens, except for the Permitted Liens. The Equipment
identified on Schedule 3.14 constitutes all of the terminals, transmitters, link
receivers and antennas used by Paging Partners to provide one-way paging
service.
(b) Schedule 3.14 of the Paging Partners Disclosure Schedule sets
forth a list of all of the telecommunications services that it provides in
support of Paging Partners' paging business, including services to (i)
interconnect paging terminals to local telephone networks, (ii) connect paging
terminals to transmitters, (iii) connect transmitters to monitoring locations
for the performance of status monitoring, control and troubleshooting functions,
and (iv) program numbers into paging terminals and perform remote monitoring,
adjustments, and troubleshooting
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with respect to the paging terminals. Each of Paging Partners and Newco
represents that the only telecommunications transmission services provided in
support of their paging business are pursuant to arrangements between Paging
Partners or Newco and certain independent local exchange carriers and
interexchange carriers specifically listed as such on Schedule 3.14.
3.15 Compliance with Law. Paging Partners' and Newco's ownership and
operation of its business are in compliance with all applicable Laws (including
without limitation the rules of the FCC relating to regulatory fees, universal
service fund obligations, telecommunications relay service, antenna support
structure lighting and marking, tower registration, timely construction of
facilities and the provision of service to subscribers, and the timely filing of
applications and reports), except where non-compliance would not individually or
in the aggregate have a Material Adverse Effect on Paging Partners or Newco,
taken as a whole. Neither Paging Partners nor Newco has received any written
notice or otherwise been advised that its ownership or operation of its paging
business is not in compliance with any such Laws.
3.16 Site Leases.
(a) Schedule 3.16 of the Paging Partners Disclosure Schedule sets
forth a complete and accurate list of all of the site leases on which equipment
is located to which Paging Partners or Newco is a party (the "Site Leases").
Except as described in subsection (b) below, each Site Lease to which Paging
Partners or Newco is a party is valid, binding and enforceable against Paging
Partners and, to Paging Partners' knowledge, each other party thereto, in
accordance with its terms and is in full force and effect, except as
enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally or by general
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principles of equity (regardless of whether enforceability is considered in a
proceeding at law or in equity). All rents due under each such Site Lease have
been paid; in each case, the lessee has been in peaceable possession since the
commencement of the original term of such lease and is not in default
thereunder, and no waiver or postponement of the lessee's obligations thereunder
has been granted by the lessor; and there exists no default or event of default
by the lessee or, to the knowledge of Paging Partners or Newco, by any other
party, or occurrence, condition or act that, with or without the giving of
notice, the lapse of time or the happening of any further event or condition,
would become a default or event of default under such lease. Neither Paging
Partners nor Newco has received any notice of special assessment and, to the
knowledge of Paging Partners and Newco, there is no threatened special
assessment with respect to Paging Partners' or Newco's Site Leases.
(b) Schedule 3.16 sets forth those Site Leases that are subject to
the terms of the Prime Leases or Master Leases referred to therein. Neither
Paging Partners nor Newco has received notice of or has knowledge of any
termination of any Prime Lease or Master Lease referred to in such Site Lease.
3.17 Books and Records. All material corporate action of the boards of
directors and the stockholders of Paging Partners and Newco taken on or prior to
the date hereof has been duly authorized in accordance with applicable law and
the respective Certificates of Incorporation and Bylaws of Paging Partners and
Newco and has been duly and accurately recorded in the minute books of Paging
Partners and Newco. The general ledgers and books of Paging Partners and Newco
and all other books, accounts and records of Paging Partners and Newco are in
all
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material respects complete and correct and have been maintained in accordance
with good business practice and all applicable laws and regulations.
3.18 Accounts Receivable. The accounts receivable reflected on the balance
sheet contained in the Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended June 30, 1998 and all accounts receivable arising since the date
of such balance sheet (collectively, the "Accounts Receivable") arose from bona
fide transactions in the ordinary course of business and have been recorded in
accordance with Paging Partners' historical revenue recognition policy. Except
as set forth in Schedule 3.18 of the Disclosure Schedule, no Account Receivable
has been assigned or pledged to any other person and no defense or set off to
any such Account Receivable has been asserted by the account obligor. The
allowance for doubtful accounts for such Accounts Receivable is adequate and in
accordance with the historical accounting practices of Paging Partners and all
of the Accounts Receivable, net of allowance for doubtful accounts, are good and
collectible in full in the ordinary course of business.
3.19 Customer Contracts. Copies of the forms of customer contracts entered
into by Paging Partners and Newco since January 1, 1997 for the provision by
Paging Partners or Newco of paging service, pager rental and pager maintenance,
were previously delivered to BAP by Paging Partners and Newco.
3.20 Pagers. Paging Partners has provided to BAP a copy of its inventory
listing dated October 1, 1998, which reflects as of September 30, 1998, the
approximate number of new pagers in Paging Partners' and Newco's pager inventory
and identifies the approximate number of each general type of pager (i.e.,
digital, alphanumeric, etc.) in each category. Since such date, the number of
pagers in pager inventory has not changed except in the ordinary course of
business.
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3.21 Retail and Office Leases. Neither Paging Partners nor Newco owns any
real property. Schedule 3.21 of the Paging Partners Disclosure Schedule sets
forth a list of all of Paging Partners' and Newco's real property leases (the
"Retail and Office Leases"), copies of which have previously been delivered to
or made available to BAP. Each Retail and Office Lease is valid, binding and
enforceable against Paging Partners and, to Paging Partners' knowledge, each
other party thereto, in accordance with its terms, and is in full force and
effect, except as enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally or by
general principles of equity (regardless of whether enforceability is considered
in a proceeding at law or in equity). All rents due under each such lease have
been paid; in each case, Paging Partners or Newco has been in peaceable
possession since the commencement of the original term of such lease and is not
in default thereunder and no waiver or postponement of Paging Partners' or
Newco's obligations thereunder has been granted by the lessor; and there exists
no default or event of default by the lessee or, to the knowledge of Paging
Partners and Newco, by any other party, or occurrence, condition or act that,
with or without the giving of notice, the lapse of time or the happening of any
further event or condition, would become a default or event of default under
such lease. The buildings and leasehold improvements leased under the Retail and
Office Leases are in good operating condition (normal wear and tear excepted),
are not in need of any known major repairs and are suitable for their current
uses. Neither Paging Partners nor Newco has received any notice of special
assessment and, to Paging Partners and Newco's knowledge, there is no threatened
special assessment relating to the premises leased by it under the Retail and
Offices Leases or any portion thereof.
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3.22 Telephone Number Inventory. Schedule 3.22 hereto, which has
heretofore been provided to BAP, sets forth, as of the date of preparation of
such Schedule, the telephone numbers assigned or available for assignment to or
association with individual paging units as part of the Paging Partners' and
Newco's paging business.
3.23 Billing Software. The billing software used by Paging Partners and
Newco shall, at and after the Effective Time, be in the same condition in which
Paging Partners and Newco used it in its operations of its paging business on
the date hereof. The base platform for such billing software was developed by
Mr. Frank Atkinson prior to his employment at Paging Partners. As part of his
employment agreement with Paging Partners, Mr. Atkinson granted a non-exclusive
license to Paging Partners for its use. Since Mr. Atkinson's employment, such
billing software has been updated and revised from time to time. All such
updates and revisions have been written to be "Year 2000 compliant." The
underlying billing software can be revised by Paging Partners' MIS department to
be Year 2000 compliant by December 31, 1999 without material disruption to the
completion of the other normal functions of Paging Partners's MIS department and
without the incurrence of costs in excess of $100,000. Paging Partners has a
valid non-exclusive license to utilize the billing software and any subsequent
modifications.
3.24 Billing System. The computer hardware set forth on Schedule 3.24 of
the Paging Partners Disclosure Schedule and the billing software collectively
comprise the billing system utilized by Paging Partners to perform billing
services.
3.25 Personal Property. Except as reflected on Schedule 3.25 of the Paging
Partners Disclosure Schedule, each of Paging Partners and Newco has good title
to or a valid leasehold or license interest in each item of personal property
used by it in connection with its business, free
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and clear of all Liens other than the Motorola Lien and Permitted Liens. The
leasehold improvements of Paging Partners and Newco and all of their respective
tangible personal property, equipment, fixtures and inventories used in the
ordinary course of their respective businesses are in good repair and in good
operating condition, reasonable wear and tear excluded, and are suitable for the
purposes for which they are being used.
3.26 Material Contracts. Schedule 3.26 of the Paging Partners Disclosure
Schedule sets forth a complete and accurate list and description of all of the
following contracts and agreements, whether written or oral, of each of Paging
Partners and Newco:
(a) agreements, contracts or instruments to which Paging Partners or
Newco is a party that (i) involve amounts greater than $25,000 and (ii) relate
to the borrowing of money, the capital lease or purchase on an installment basis
of any property or asset or the guarantee of any of the foregoing (including
without limitation pledged receivables or acquisition and development credit
facilities of Paging Partners or Newco), other than agreements, contracts or
instruments relating to the purchase of pagers in the ordinary course of
business involving less than $200,000 in the aggregate in any month;
(b) contracts under which the amount payable by Paging Partners or
Newco with respect to its business is dependent on the revenues or income or
similar measure of Paging Partners or Newco or any other Person;
(c) bonding, licenses, leases, contracts and other arrangements with
respect to any material property of Paging Partners or Newco and all contracts,
agreements, commitments, purchase orders or other understandings or arrangements
with respect to which Paging Partners and/or Newco has any liability or
obligation (contingent or otherwise) involving more than
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$100,000 in the aggregate in any month, or which may otherwise have any
continuing effect after the date of this Agreement;
(d) inter-carrier and agency agreements, interLATA circuit contracts
or interconnection agreements with interexchange carriers involving more than
$10,000;
(e) franchise, license, agency, sales representative, marketing,
co-sales arrangements, broker, and similar agreements or any declarations or
covenants, conditions and restrictions, in each case involving more than
$10,000;
(f) forms of reseller agreements involving more than $10,000;
(g) contracts, agreements or other understandings or arrangements
(including without limitation those with respect to compensation) between Paging
Partners or Newco and any stockholder, officer, director, consultant, agent
and/or Affiliate of Paging Partners or Newco (or any spouse or relative of any
of the foregoing);
(h) contracts with any Person (other than BAP) which purport to
restrict the business activities of Paging Partners or Newco or use of
information in its business, including without limitation any covenant not to
compete or any contracts imposing exclusive dealing obligations;
(i) management, operating, service, joint venture, partnership or
limited liability company agreements;
(j) barter, currency, interest rate swap, hedge or broker contracts;
(k) any contract or agreement pursuant to which Paging Partners or
Newco has agreed to indemnify or hold harmless any other Person or to pay
liquidated damages of any kind;
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(l) labor, union and similar contracts between Paging Partners or
Newco and its employees;
(m) any contract or agreement between Paging Partners or Newco and
Motorola;
(n) any contract or agreement creating any Lien (other than a
Permitted Lien) on any property or assets of Paging Partners or Newco;
(o) any contract or agreement relating to the capital stock of
Paging Partners or Newco; or
(p) any other material agreement, lease, commitment, instrument,
plan, arrangement or contract entered into by Paging Partners or Newco or to
which any of their respective assets may be subject.
All the foregoing are herein called "Material Contracts." Such list
includes with respect to each Material Contract the names of the parties, the
date thereof, and its title or other general description. The Material Contracts
listed on Schedule 3.26 set forth the entire arrangement and understanding
between Paging Partners and/or Newco and the respective third parties with
respect to the subject matter thereof, and, except as indicated in such
Schedule, there have been no amendments or waivers or side or supplemental
arrangements to or in respect of any Material Contract. Paging Partners and
Newco will furnish any further information that BAP may reasonably request in
connection therewith. Each Material Contract is valid, binding and enforceable
against Paging Partners and, to Paging Partners' knowledge, each other party
thereto, in accordance with its terms and in full force and effect, except as
enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other
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similar laws now or hereafter in effect relating to creditors' rights generally
or by general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity and except where failure to be so
enforceable would not have a Material Adverse Effect on Paging Partners and
Newco, taken as a whole). Except for any default by Paging Partners that may
exist under the Motorola Credit Agreement (the "Motorola Default"), there is no
event that has occurred or existing condition that constitutes or that, with
notice, the happening of an event and/or the passage of time, would constitute a
default or breach under any Material Contract by Paging Partners or Newco or
would cause the acceleration of any obligation of any party thereto, give rise
to any right of termination or cancellation or cause the creation of any Lien
(other than a Permitted Lien) by reason of the failure of Paging Partners or
Newco to fulfill the obligations thereunder.
3.27 Intangible Property Rights. Each of Paging Partners and Newco has
good and marketable title to, or valid and continuing licenses to use, all
trademarks, service marks, trade names, copyrights, franchises, licenses, logos,
customer lists, processes, trade secrets, know-how, and all rights with respect
to the foregoing, that are used in the operation of its business as currently
conducted (collectively, with any application with respect to the issuance or
granting of any of the foregoing, the "Intangible Property"). Schedule 3.27 of
the Paging Partners Disclosure Schedule sets forth a true, correct and complete
list of all Intangible Property owned or used by each of Paging Partners and
Newco (including all registrations and applications with respect to the issuance
or granting of any right). Each of Paging Partners and Newco is the sole and
exclusive owner of all Intangible Property, free and clear of all Liens (other
than Permitted Liens). None of the Intangible Property infringes on any rights
of others.
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3.28 Insurance. Schedule 3.28 of the Paging Partners Disclosure Schedule
contains a correct and complete description of all insurance policies held by
Paging Partners or Newco covering Paging Partners or Newco or any of their
respective assets, properties or officers or employees, specifying the type and
amount of coverage, the premium, the insurer and the expiration date of each
such policy (collectively, the "Insurance Policies"). All of the Insurance
Policies are valid and in full force and effect and free of any right of
termination on the part of the insurance carriers. Except as set forth in
Schedule 3.28, all of the liability Insurance Policies are on an "occurrence"
basis. Schedule 3.28 also sets forth a list of all outstanding bonds or other
security arrangements issued or entered into by Paging Partners or Newco.
3.29 Labor Matters. Paging Partners and Newco are in compliance with all
Laws with respect to employment practices and prohibiting discrimination, except
where failure to be in compliance would not have a Material Adverse Effect on
Paging Partners and Newco, taken as a whole. Neither Paging Partners nor Newco
is bound by any union contracts, labor agreements or other similar agreements or
arrangements. There are no pending or threatened claims between Paging Partners
or Newco and any of its employees (including without limitation any claim of
discrimination or harassment), or any unresolved labor grievances or unfair
labor practice or labor arbitration Proceedings pending or threatened relating
to Paging Partners or Newco. Except as set forth on Schedule 3.29 of the Paging
Partners Disclosure Schedule or as provided in Section 4.21 hereof, no present
or former director, officer, partner, stockholder, agent, or employee of or
consultant to Paging Partners or Newco, as a result of any of the transactions
contemplated by this Agreement, is or would be eligible to (a) receive any
bonus, commission, severance pay, lump sum or other payment, compensation or
other remuneration from Paging Partners or Newco of
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any kind or (b) have the timing or vesting of any benefit or any increase in the
amount of compensation or other benefits. Except as set forth in Schedule 3.29,
there are no employment or consulting contracts or arrangements by which Paging
Partners or Newco is bound other than those terminable at will with no penalty
or other payment required. Schedule 3.29 of the Paging Partners Disclosure
Schedule sets forth a complete list of all officers and employees of and
consultants to Paging Partners or Newco showing date of hire, hourly rate or
salary, commission arrangements or other basis of compensation. For purposes of
this Section 3.29 the term "employee" shall include independent contractors who
spend a majority of their working time on Paging Partners' or Newco's business.
3.30 Transactions With Affiliates. Except as set forth in Schedule 3.30 of
the Paging Partners Disclosure Schedule, no officer, employee, director,
Significant Stockholder, partner or agent of or consultant to Paging Partners or
Newco or, to the knowledge of Paging Partners and Newco any of their respective
Affiliates (an "Interested Person"), owned within the past three years, directly
or indirectly, any material interest in, or serves or served as an officer,
employee or director of, any customer, competitor or supplier of Paging Partners
or Newco, or any organization that had or has a material agreement or
arrangement with Paging Partners or Newco, and no Interested Person owns
directly or indirectly any material asset or property used in or necessary to
the business of Paging Partners or Newco. "Significant Stockholder" means any
Person that beneficially owns (within the meaning of the Exchange Act and the
rules and regulations promulgated thereunder) five percent or more of the equity
of the Company on a fully diluted basis.
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3.31 Environmental Matters. Without limiting any other representation or
warranty contained herein, to the knowledge of Paging Partners and Newco, each
of Paging Partners and Newco, and each of Paging Partners' and Newco's ownership
and use of its premises, the occupancy and operation thereof and the conduct of
each of Paging Partners and Newco's business are and have been in compliance
with all Environmental Laws, including without limitation legal requirements
relating to the use, storage, handling, transport and disposal of Hazardous
Materials. To the knowledge of Paging Partners and Newco, none of the real
property owned, leased or operated by Paging Partners or Newco at any time has
ever been used as a sanitary land fill or as a storage or dump site for
Hazardous Materials or is contaminated with any Hazardous Materials. To the
knowledge of Paging Partners and Newco, neither Paging Partners nor Newco nor
any other Person has ever caused or permitted any Hazardous Materials to be
disposed of on or under any real property owned, leased or operated by Paging
Partners or Newco in any manner not permitted by all applicable Laws, and no
such real property has ever been used (by Paging Partners or Newco or any other
Person) as (a) a disposal site or permanent storage site for any Hazardous
Materials or (b) a temporary storage site for any Hazardous Materials which
temporary storage resulted in a release of Hazardous Materials or violated any
Environmental Law. To the knowledge of Paging Partners and Newco, all Hazardous
Materials used or generated by Paging Partners or Newco or any business merged
into or otherwise acquired by Paging Partners or Newco have been generated,
accumulated, stored, transported, treated, recycled and disposed of in
compliance with all applicable Environmental Laws. To the knowledge of Paging
Partners and Newco, there are no underground storage tanks on any real property
owned, leased or operated by Paging Partners or Newco. To the knowledge of
Paging Partners and Newco, neither Paging Partners nor Newco has any liabilities
with respect to Hazardous Materials, and no facts or circumstances exist that
could give rise to liabilities under any applicable Environmental Law. To the
knowledge of Paging
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Partners and Newco, none of this Agreement, the other Transaction Documents or
the transactions contemplated hereby or thereby wll result in any obligations
for environmental site assessment or cleanup, or notification to or consent of
any governmental agency or third party under any transaction-triggered
Environmental Law.
3.32 Taxes. Paging Partners has made available to BAP true and correct
copies of all of its tax returns (original and amended) for all open years.
Paging Partners has correctly prepared and filed when due all tax and/or
information returns required by Law to be filed and has paid when due all Taxes,
including without limitation Taxes levied upon any of its properties, assets,
income or franchises, except (i) where the failure to do so will not have a
Material Adverse Effect on Paging Partners and Newco, taken as a whole or (ii)
where Paging Partners is contesting such Taxes in good faith and has made
adequate reserves on its books therefor. All such returns are, and all returns
to be filed from the date hereof until the Effective Time will be true and
correct and show all Taxes owed in respect of Paging Partners for the relevant
periods, except where Paging Partners is contesting such Taxes in good faith and
has made adequate reserves on its books therefor. Except as set forth on
Schedule 3.32, no return of Paging Partners has ever been audited by the
Internal Revenue Service or any other Governmental Authority. Paging Partners
has never filed a consent under ss.341(f) of the Code and has never executed any
waiver that would have the effect of extending any applicable statute of
limitations in respect of any tax liabilities. The charges, accruals and
reserves on Paging Partners' books in respect of
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Taxes for all fiscal periods are adequate, and there are no unpaid assessments
or any basis for the assessment of any additional Taxes, penalties or interest
for any period for which the due date has passed or audit thereof by any taxing
authority, except for those (i) that will not have a Material Adverse Effect on
Paging Partners and Newco, taken as a whole or (ii) that Paging Partners is
contesting in good faith or for which Paging Partners has made adequate reserves
on its books. All Taxes that Paging Partners is required by Law to withhold or
to collect for payment have been duly withheld and collected and paid to the
proper governmental entity. There are no tax Liens (other than Permitted Liens)
or claims pending or threatened against Paging Partners or its properties or
assets. There are no outstanding tax sharing agreements or other such
arrangements between Paging Partners and any other Person. The tax basis of the
assets of each of Paging Partners by category including the classification of
such assets as being depreciable or amortizable as reflected in their respective
tax returns and related work papers is true and correct in all material
respects.
3.33 Employee Benefit Plans.
(a) Paging Partners maintains, contributes to or established the
"employee benefit plans," within the meaning of Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended, and the rules and
regulations thereunder ("ERISA"), including but not limited to bonus, stock
option, stock purchase, restricted stock, incentive, profit-sharing, pension,
retirement, deferred compensation, severance, medical, dental, life, disability,
accident, accrued leave, vacation, sick pay, sick leave, supplemental retirement
and unemployment benefit plans, programs, arrangements, commitments or practices
(whether or not insured) set forth in Schedule 3.33 Each such employee benefit
plan is referred to herein as a "Paging Partners Benefit Plan"
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and collectively as the "Paging Partners Benefit Plans". Each Paging Partners
Benefit Plan that is intended to be qualified within the meaning of Section
401(a) of the Code and, to the extent applicable, Section 401(k) of the Code,
has been determined by the Internal Revenue Service to be so qualified. The
Paging Partners Benefit Plans have been maintained, operated and administered in
all material respects in accordance with their terms and applicable law,
including without limitation ERISA and the Code. No complete or partial
termination of any Paging Partners Benefit Plan has occurred or is expected to
occur prior to or on the Closing Date or as a result of this transaction. No
event has occurred, or is reasonably expected to occur as a result of the
transactions contemplated by this Agreement, with respect to or pursuant to any
Paging Partners Benefit Plan which will result in any material liability to BAP.
(b) No Paging Partners Benefit Plan is an "employee pension benefit
plan," within the meaning of Section 3(2) of ERISA, subject to Section 412 of
the Code or Section 302 of Title IV of ERISA. Paging Partners has never
contributed or had any obligation to contribute to any multi employer pension
plan within the meaning of ERISA and the Code.
(c) Paging Partners does not maintain any Paging Partners Benefit
Plan that is a "group health plan" (as such term is defined in ERISA or the
Code) that has not been administered or operated in all material respects in
compliance with the applicable requirements of Section 601 of ERISA and Section
4980B(f) of the Code.
3.34 Certain Agreements. The agreements and plans set forth on Schedule
3.34 of the Paging Partners Disclosure Schedule are the only employment,
severance, consulting or similar agreements of Paging Partners containing a
"change of control" provision.
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3.35 Brokers. No investment bank, broker or finder is entitled to any fee
or commission in connection with the transactions contemplated by this Agreement
based upon arrangements made by or on behalf of Paging Partners or Newco, other
than Robert Davidoff and Rochelle King, which shall not exceed $100,000 in the
aggregate.
3.36 Disclosure.
(a) Neither this agreement nor any exhibit or schedule hereto nor
any Transaction Document nor any statement, list or certificate delivered to BAP
pursuant hereto or pursuant to any written request therefor, contains an untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements contained herein and therein, in light of the
circumstances in which they were made, not misleading.
(b) The Paging Partners Proxy Statement, will not, as of the date
the Paging Partners Proxy Statement is first mailed to stockholders of Paging
Partners and as of the date of the Paging Partners' stockholder meeting, contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances in which they were made, not misleading.
(c) The Paging Partners Proxy Statement will, as of the date the
Paging Partners Proxy Statement is first mailed to stockholders of Paging
Partners and as of the date of the Paging Partners' stockholder meeting, comply
as to form with the requirements of the Exchange Act and the rules and
regulations promulgated thereunder.
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ARTICLE IV
COVENANTS
Paging Partners, Newco and BAP hereby covenant and agree to take the
following actions between the date hereof and the Closing and/or, if applicable,
following the Closing:
4.1 Access to Information.
(a) Subject to the terms and conditions of the Bell Atlantic
Acquisition Agreement, until the first to occur of the Effective Time or
termination of this Agreement pursuant to Article VI hereof, BAP will, and will
cause its officers, directors, employees, counsel, advisors and representatives
to, afford to the officers, employees, counsel and authorized representatives of
Paging Partners and Newco (including, without limitation, its accountants) such
access to the officers, employees, accountants, properties and business and
financial records and contracts of every kind of BAP as Paging Partners and
Newco shall deem necessary, and shall furnish to Paging Partners and Newco and
its authorized representatives such additional information concerning the
proposed management, operations, properties and business of BAP, the Bell
Atlantic Paging Business and, after the closing of the Bell Atlantic
Acquisition, the BAP Paging Business, as shall be reasonably requested,
including without limitation all such information as shall be necessary to
enable Paging Partners and Newco or its representatives to verify the accuracy
of the representations and warranties contained herein and to prepare the Paging
Partners Proxy Statement to be used in connection with the Paging Partners
special meeting. No investigation by Paging Partners and Newco into BAP, the
Bell Atlantic Paging Business, the BAP Paging Business or the management,
business, operations, assets, records or condition of BAP, the Bell Atlantic
Paging Business or the BAP Paging Business shall diminish or
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in any way limit any of the representations and warranties of BAP in this
Agreement or in any Transaction Document or writing delivered pursuant hereto or
relieve BAP of any obligation hereunder.
(b) Notwithstanding the foregoing (or any other provision of this
Agreement or the other Transaction Documents), the parties understand that,
until the closing of the Bell Atlantic Acquisition, (i) BAP will not have
ownership or control of the Bell Atlantic Paging Business, (ii) BAP will have
only limited access to information about the Bell Atlantic Paging Business, and
(iii) the Bell Atlantic Acquisition Agreement contains provisions requiring the
maintenance of the confidentiality of, and limiting the public disclosure of
certain information relating to, the Bell Atlantic Acquisition, the Bell
Atlantic Acquisition Agreement and the Bell Atlantic Paging Business and
requiring BAP to obtain the consent of the Bell Atlantic Subsidiaries prior to
the public disclosure of such information (the "Bell Atlantic Confidentiality
Provisions"). If Paging Partners or Newco shall reasonably request information
about the Bell Atlantic Acquisition, the Bell Atlantic Acquisition Agreement or
the Bell Atlantic Paging Business that is not available to BAP or that cannot be
publicly disclosed under the Bell Atlantic Confidentiality Provisions (to be
determined by BAP in its sole discretion), then BAP shall use commercially
reasonable efforts to obtain the requested information or the consent to the
public disclosure of such requested information, as the case may be, from the
Bell Atlantic Subsidiaries. If, however, after using commercially reasonable
efforts, BAP fails to obtain such requested information, or the consent to the
disclosure of such requested information, as the case may be, and if, as a
result of such failure, BAP, Paging Partners and/or Newco are unable to perform
their respective obligations or satisfy their conditions to closing under this
Agreement, including without
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limitation those under Sections 4.1, 4.5, 4.8, 4.9, 4.11, and 4.14 hereof, then
the parties hereto agree that (i) the time for BAP, Paging Partners and Newco to
perform their obligations under this Agreement shall be extended for such time
as Paging Partners shall determine, which shall not be less than 15 days from
the date that BAP gives Paging Partners written notice of such failure (the
"Extension Period") and (ii) none of BAP, Paging Partners or Newco shall be in
breach of this Agreement during the Extension Period as a result of the
circumstances described in this clause (b). Notwithstanding any other provision
of this Agreement or the Transaction Documents, if BAP cannot obtain the
requested information or the consent to the disclosure of such requested
information, and Paging Partners terminates the Extension Period, then the
parties agree that for purposes of Article VI and Section 8.5 hereof, none of
BAP, Paging Partners or Newco shall be in breach of this Agreement as a result
of the circumstances described in this clause (b). BAP shall use commercially
reasonable efforts to provide paging Partners or Newco with any such requested
information or consent as soon as practicable following the closing of the Bell
Atlantic Acquisition.
(c) Until the first to occur of the Effective Time or termination of
this Agreement pursuant to Article VI hereof, Paging Partners and Newco will,
and will cause their respective officers, directors, employees, counsel,
advisors and representatives to, afford to the officers, employees, counsel and
authorized representatives of BAP (including, without limitation, its
accountants) such access to the officers, employees, accountants, properties and
business and financial records and contracts of every kind of Paging Partners
and Newco as BAP shall deem necessary, and shall furnish to BAP and its
authorized representatives such additional information concerning the
management, operations, properties and business of Paging Partners
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and Newco as shall be reasonably requested, including without limitation all
such information as shall be necessary to enable BAP or its representatives to
verify the accuracy of the representations and warranties contained herein. No
investigation by BAP into Paging Partners or Newco or its management, business,
operations, assets, records or condition shall diminish or in any way limit any
of the representations and warranties of Paging Partners and Newco in this
Agreement or in any Transaction Document or writing delivered pursuant hereto or
relieve Paging Partners and Newco of any obligation hereunder.
4.2 Consents and Approvals. Paging Partners, Newco and BAP shall cooperate
in using their commercially reasonable efforts to obtain as promptly as
practicable all governmental and regulatory approvals, consents, orders and
authorizations and transfer of licenses or registrations required in connection
with, and waivers of any violations, breaches and defaults that may be caused
by, the consummation of the transactions contemplated by this Agreement.
4.3 Conduct of Business of BAP. Except as contemplated by this Agreement
or with the prior written consent of Paging Partners and Newco, during the
period from the date of the closing of the Bell Atlantic Acquisition to the
Effective Time or the termination of this Agreement pursuant to Article VI
hereof, BAP shall operate and carry on the BAP Paging Business only in the
ordinary and usual course consistent with past practice of the Bell Atlantic
Paging Business (subject to any changes resulting from the fact that such
business will not be owned by Bell Atlantic and the Bell Atlantic Subsidiaries
after the Bell Atlantic Acquisition) and in material compliance with all
applicable Laws. Consistent with the foregoing, BAP (including, after the
closing of the Bell Atlantic Acquisition, the BAP Paging Business) shall
maintain its corporate existence and use commercially reasonable efforts to
maintain its business organizations intact,
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retain its Authorizations, preserve its existing contracts, pay and discharge
when due all taxes, assessments and governmental charges, keep available the
services of its current officers and employees, preserve its FCC licenses and
relationships with customers, suppliers, contractors, licensors, employees and
any other Persons having business relations with it, and maintain all of the
material structures, equipment and other tangible personal property used in its
business in good repair, order, and condition in all material respects (except
for depletion, depreciation, ordinary wear and tear and damage by unavoidable
casualty). Without limiting the generality of the foregoing and except as
expressly contemplated by this Agreement and the Bell Atlantic Acquisition
Agreement, BAP shall not, directly or indirectly, do any of the following or
enter into any agreement, arrangement or understanding with respect thereto,
without the prior written consent of Paging Partners and Newco:
(a) make any material change in its business, management or
operations or enter into any new line of business or take any action that would
materially adversely affect or detract from the value of BAP or, if applicable,
the BAP Paging Business or terminate the services of any present key employee,
consultant or agent except for good cause or in connection with the Bell
Atlantic Acquisition;
(b) (i) sell, pledge, dispose of or encumber any asset of BAP
(except for sales of assets in the ordinary course of business consistent with
past practice and except in connection with the BAP Debt Agreements and the
transactions contemplated thereby and the Motorola Credit Agreement or the
renegotiation thereof) or (ii) acquire any material assets or properties
(whether by merger, consolidation, acquisition of stock or assets or otherwise
except in connection with the Bell Atlantic Acquisition), (iii) release or
assign any indebtedness owed to it
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or any claims held by it, except in the ordinary course of business consistent
with past practice or except in connection with the Bell Atlantic Acquisition,
or (iv) enter into any agreement granting a preferential right to sell, lease,
license, transfer or otherwise dispose of property, except in the ordinary
course of business consistent with past practice;
(c) (i) incur or assume any indebtedness (other than indebtedness
incurred or assumed in the ordinary course of business and consistent with past
practice, provided that such indebtedness does not relate to borrowed money) or
assume, guarantee, endorse (other than endorsement of accounts receivable for
collection) or otherwise become responsible for the obligations of any other
Person, provided that the foregoing shall not prevent BAP from incurring
indebtedness (i) under the BAP Debt Agreements in connection with the Bell
Atlantic Acquisition and the Merger in an amount not to exceed $25,500,000 or
(ii) in connection with the ownership and operation of the BAP Paging Business
in the ordinary course of business consistent with past practice of the Bell
Atlantic Paging Business;
(d) make, declare or pay any dividend, or declare or make any
distribution on, or directly or indirectly redeem, repurchase or otherwise
acquire, any shares of its outstanding capital stock or any securities
convertible into or exchangeable for such capital stock or issue any shares of
its capital stock (other than pursuant to (i) the issuance and sale of the BAP
Preferred Stock pursuant to the BAP Stock Purchase Agreement, (ii) the
conversion of the BAP Preferred Stock immediately prior to the consummation of
the Merger or the repurchase of capital stock of BAP pursuant to the Equity
Sponsor Agreement); or authorize the creation or issuance of any additional
shares of its capital stock (other than pursuant to the conversion of the BAP
Preferred Stock immediately prior to the consummation of the Merger) or
authorize or grant any options,
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calls or commitments relating to its capital stock or any securities or
obligations convertible into or exchangeable for, or giving any person any right
to subscribe for or acquire from it, any shares of its capital stock; or split,
combine or reclassify any capital stock (other than pursuant to the BAP
Employment Agreements (as defined below) and the BAP Option Agreements (as
defined below));
(e) subject any of its properties or assets to any Lien (other than
Permitted Liens and Liens incurred under the BAP Debt Agreements or in
connection with the Bell Atlantic Acquisition with respect to indebtedness
permitted under paragraph (c) above);
(f) make any investment of a capital nature either by purchase of
stock or securities, contributions to capital, property transfer or otherwise,
or by the purchase of any property or assets of any other Person, except, after
the closing of the Bell Atlantic Acquisition, in the ordinary course of the BAP
Paging Business consistent with the past practice of the Bell Atlantic Paging
Business;
(g) enter into, terminate or cancel any contract, agreement, debt or
claim or modify, amend or make any change in any of its leases, contracts,
agreements, debts or claims or waive any material rights, in any case, that
provides for a commitment on the part of BAP to pay an amount in excess of
$50,000 or that affects in any material respect the business of BAP, other than
(A) the Employment Agreement to be dated as of the Effective Time, between BAP
and D. Brian Plunkett (the "Plunkett Employment Agreement" and, together with
the Adiletta Employment Agreement, the "BAP Employment Agreements"), (B) the
Option Agreement to be entered into between BAP and John X. Adiletta as
contemplated by the Adiletta Employment Agreement (the "Adiletta Option
Agreement"), (C) the Option Agreement to be entered into
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between BAP and D. Brian Plunkett (the "Plunkett Employment Agreement" and,
together with the Adiletta Employment Agreement, the "BAP Employment
Agreements"), (B) the Option Agreement to be entered into between BAP and John
X. Adiletta as contemplated by the Adiletta Employment Agreement (the "Adiletta
Option Agreement"), (C) the Option Agreement to be entered into between BAP and
D. Brian Plunkett (the "Plunkett Option Agreement" and, together with the
Adiletta Option Agreement, the "BAP Option Agreements") and (D) the Deerfield
Agreement, (ii) other than the agreements to be entered into at the closing of
the Bell Atlantic Acquisition as contemplated by the Bell Atlantic Acquisition
Agreement, (iii) other than the termination of the Bell Atlantic Acquisition
Agreement pursuant to the terms thereof and the termination of this Agreement
pursuant to the terms hereof, and (iv) other than in the ordinary course of the
business of BAP or, if applicable, the BAP Paging Business consistent with the
past practice of BAP or the Bell Atlantic Paging Business.
(h) increase in any manner or change the nature of the compensation
or fringe benefits paid or payable to any director, officer, agent,
representative, independent contractor or consultant of BAP or pay or agree to
pay any commission or bonus payment (other than commissions and bonus payments
to which BAP is now committed or will become committed upon closing of the Bell
Atlantic Acquisition), or pay or agree to pay any pension or retirement
allowance not required by any existing plan or agreement to any officers or
employees (other than in connection with the Bell Atlantic Acquisition), or
commit itself to any pension, retirement or profit-sharing plan or agreement or
employment agreement with or for the benefit of any officer, employee or other
person other than in connection with the Bell Atlantic Acquisition;
(i) permit any insurance policy naming BAP or the Bell Atlantic
Paging Business as a beneficiary or a loss payable payee to be canceled or
terminated or any of the coverage thereunder to lapse, unless simultaneously
with such termination or cancellation, replacement policies providing
substantially the same coverage are in full force and effect, other
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than in the ordinary course of business and other than in connection with the
Bell Atlantic Acquisition;
(j) propose or adopt any amendment to its charter or bylaws, except
in connection with the Financing, or enter into any agreement the terms of which
would be violated by the consummation of the transactions contemplated by this
Agreement, except as set forth on Schedule 2.10 hereof;
(k) change its methods of accounting or fiscal year or fail to
maintain its books, accounts and records in the usual, regular and ordinary
manner or fail to post all entries therein promptly in compliance with accepted
practice and applicable law;
(l) settle or compromise any suit or claim or threatened suit or
claim relating to the transactions contemplated by this Agreement;
(m) make any tax election or settle or compromise any material
income tax liability;
(n) except as specifically contemplated by this Agreement, the BAP
Employment Agreements, the BAP Option Agreements, the Deerfield Agreement or the
Adiletta Note, enter into any of the foregoing transactions with any director,
officer, stockholder, or employee of BAP; or
(o) take any action (or refrain from taking any action) that would
cause, or might reasonably be expected to cause, any representation or warranty
of BAP contained herein to be inaccurate in any material respect.
4.4 Conduct of Business of Paging Partners and Newco. Except as
contemplated by this Agreement or with the prior written consent of BAP, during
the period from the date hereof
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to the Effective Time or the termination of this Agreement pursuant to Article
VI hereof, Paging Partners and Newco shall operate and carry on their business
only in the ordinary and usual course consistent with past practice and in
material compliance with all applicable Laws. Consistent with the foregoing,
Paging Partners and Newco shall maintain their respective corporate existences
and use their best efforts to maintain their business organizations intact,
retain their Authorizations, preserve their existing contracts, pay and
discharge when due all taxes, assessments and governmental charges, keep
available the services of their present officers and employees, preserve their
FCC Licenses and relationships with customers, suppliers, contractors,
licensors, employees and any other Persons having business relations with them,
and maintain all of the material structures, equipment and other tangible
personal property used in their business in good repair, order, and condition in
all material respects (except for depletion, depreciation, ordinary wear and
tear and damage by unavoidable casualty). Without limiting the generality of the
foregoing and except as expressly contemplated by this Agreement, Paging
Partners and Newco shall not, directly or indirectly, do any of the following or
enter into any agreement, arrangement or understanding with respect thereto,
without the prior written consent of BAP:
(a) make any material change in its business, management or
operations or enter into any new line of business or take any action that would
materially adversely affect or detract from the value of Paging Partners or
Newco or terminate the services of any present key employee, consultant or agent
except for good cause;
(b) (i) sell, pledge, dispose of or encumber any asset of Paging
Partners or Newco, except for sales of assets in the ordinary course of business
consistent with past practice
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and involving amounts less than $25,000 and except for sales, pledges,
dispositions or encumbrances of pagers in the ordinary course of business
consistent with past practice and involving less than $300,000 in the aggregate
in any month, or (ii) acquire any material assets or properties (whether by
merger, consolidation, acquisition of stock or assets or otherwise), except for
purchases or other acquisitions of pagers in the ordinary course of business,
consistent with past practice, and involving less than $200,000 in the aggregate
in any month, or (iii) release or assign any indebtedness owed to it or any
claims held by it, except in the ordinary course of business consistent with
past practice, or (iv) enter into any agreement granting a preferential right to
sell, lease, license, transfer or otherwise dispose of property, except in
connection with the sale, lease, license or transfer of pagers in the ordinary
course of business consistent with past practice;
(c) (i) incur or assume any indebtedness (other than indebtedness
incurred or assumed in the ordinary course of business, consistent with past
practice and involving amounts less than $25,000, provided that such
indebtedness does not relate to borrowed money) or (ii) assume, guarantee,
endorse (other than endorsement of accounts receivable for collection) or
otherwise become responsible for the obligations of any other Person, in each
case, provided that the foregoing shall not prevent Paging Partners or Newco
from (x) incurring indebtedness in connection with the purchase of pagers in the
ordinary course of business consistent with past practice involving less than
$200,000 in the aggregate in any month, or (y) incurring indebtedness under the
Motorola Credit Agreement for so long as Paging Partners and Newco's aggregate
indebtedness thereunder (including any currently outstanding indebtedness) does
not at any time exceed $1,654,189.98 or (z) refinancing indebtedness outstanding
under the Motorola Credit
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Agreement on terms reasonably satisfactory to Paging Partners and, to the extent
necessary to comply with the terms and conditions of the BAP Debt Agreements,
BAP;
(d) make, declare or pay any dividend, or declare or make any
distribution on, or directly or indirectly redeem, purchase or otherwise
acquire, any shares of its outstanding capital stock; or any securities
convertible into or exchangeable for such capital stock or issue any shares of
its capital stock; or issue or authorize the creation or issuance of any
additional shares of its capital stock other than pursuant to options, warrants
or rights that are outstanding on the date hereof and are expressly disclosed in
the Paging Partners Disclosure Schedule or in this Agreement or issue or
authorize or grant any warrants, options, calls or commitments relating to its
capital stock or any securities or obligations convertible into or exchangeable
for, or giving any person any right to subscribe for or acquire from either of
them, any shares of their capital stock; or split, combine or reclassify any
capital stock;
(e) subject any of its properties or assets to any Lien (other than
Permitted Liens and Liens incurred under the Motorola Credit Agreement with
respect to indebtedness permitted under paragraph (c) above);
(f) make any investment of a capital nature either by purchase of
stock or securities, contributions to capital, property transfer or otherwise,
or by the purchase of any property or assets of any other Person, in either
case, in excess of $100,000;
(g) enter into, terminate or cancel any contract, agreement, debt or
claim or modify, amend or make any change in any of its leases, contracts,
agreements, debts or claims or waive any material rights, in any case, that
provides for a commitment on the part of Paging Partners and/or Newco to pay an
amount in excess of $25,000 in any case or $100,000 in the
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aggregate or that affects in any material respect the business of Paging
Partners and Newco other than the termination of this Agreement pursuant to the
terms hereof;
(h) increase in any manner or change the nature of the compensation
or fringe benefits paid or payable to any director, officer, agent,
representative, independent contractor or consultant of Paging Partners or Newco
or pay or agree to pay any commission or bonus payment (other than commissions
and bonus payments to which Paging Partners is now committed and which have been
disclosed in this Agreement or the Paging Partners Disclosure Schedule or pay or
agree to pay any pension or retirement allowance not required by any existing
plan or agreement to any officers or employees, or commit itself to any pension,
retirement or profit-sharing plan or agreement or employment agreement with or
for the benefit of any officer, employee or other person;
(i) permit any insurance policy naming it as a beneficiary or a loss
payable payee to be canceled or terminated or any of the coverage thereunder to
lapse, unless simultaneously with such termination or cancellation, replacement
policies providing substantially the same coverage are in full force and effect,
other than in the ordinary course of business;
(j) propose or adopt any amendment to its Certificate of
Incorporation or Bylaws; or enter into any agreement the terms of which would be
violated by the consummation of the transactions contemplated by this Agreement;
(k) change its methods of accounting or fiscal year or fail to
maintain its books, accounts and records in the usual, regular and ordinary
manner or fail to post all entries therein promptly in compliance with accepted
practice and applicable law;
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(l) settle or compromise any suit or claim or threatened suit or
claim relating to the transactions contemplated by this Agreement;
(m) make any tax election or settle or compromise any material
income tax liability;
(n) take or allow to be taken or fail to take any action, which
action or omission could jeopardize qualification of the Merger as a
reorganization within the meaning of Section 368(a) of the Code;
(o) except as specifically contemplated by this Agreement, enter
into any of the foregoing transactions with any director, officer, stockholder,
or employee of Paging Partners or Newco; or
(p) take any action (or refrain from taking any action) that would
cause, or might reasonably be expected to cause, any representation or warranty
of Paging Partners or Newco contained herein to be inaccurate in any material
respect.
4.5 Confidentiality. Subject to Section 4.1(b) hereof, each of BAP, Paging
Partners and Newco shall (and shall cause its respective officers, employees and
representatives to) keep all information furnished to it pursuant to or in
connection with this Agreement or any of the transactions contemplated herein
confidential (including, without limitation, any of such information relating to
either of BAP's or Paging Partners' respective businesses) and shall not
disclose any of such information to any third party, except, subject to Section
4.1 (b) hereof, the Bell Atlantic Confidentiality Provisions, and the Bell
Atlantic Consent, (i) as contemplated herein or in the Bell Atlantic Acquisition
Agreement or the documents relating to the Financing, (ii) as required by (A)
law (including information disclosures that may be required to be set forth in
the
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Proxy Statement or other materials furnished to Paging Partners stockholders,
(B) valid judicial or regulatory process to any governmental authority including
but not limited to the FCC, the Federal Trade Commission and the Department of
Justice, or (C) securities exchange rules or regulations (or comparable rules
and regulations of the Nasdaq Small Cap Market), (iii) for disclosures of such
information concerning the transactions contemplated by this Agreement that are
made (A) to BAP's, Paging Partners' or Newco's respective stockholders (except
with respect to disclosures to Paging Partners' stockholders only in the Paging
Partners Proxy Statement), officers, directors, financial advisors, accountants,
counsel or other representatives on a need-to-know basis or (B) to the Bell
Atlantic Subsidiaries as required by the Bell Atlantic Acquisition Agreement;
provided, that such confidentiality obligations shall not apply to any
information (i) that becomes public through no fault of the receiving party or
its representatives or (ii) that the receiving party can show was already known
to it on a non-confidential basis prior to the disclosure thereof by the other
party.
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4.6 Exclusive Dealing, Etc.
(a) During the period from the date of this Agreement and continuing
until the earlier of the termination of the Agreement in accordance with Article
VI or the Effective Time, except as contemplated by this Agreement, BAP shall
not authorize any Person or individual to, directly or indirectly, through any
officer, director, agent, employee or otherwise, (a) entertain, solicit,
initiate or encourage any inquiries or the submission of proposals or offers
from any Person relating to any acquisition or purchase of any of the shares of
the capital stock of BAP and/or all or any material portion of BAP's assets or
any equity interest in BAP or any equity investment, merger, consolidation or
business combination with BAP (including by way of tender offer) or (b)
participate in any discussions or negotiations regarding, or furnish to any
other Person any information with respect to, or otherwise cooperate in any way
with, or assist or facilitate or encourage, any effort or attempt by any other
Person to do or seek any of the foregoing, in either case, except in connection
with the offer and sale of equity securities in BAP pursuant to the Financing,
provided that the number of shares of BAP Common Stock outstanding on a fully
diluted basis at the Effective Time shall not exceed 98,000 (excluding shares of
BAP Common Stock issuable upon the exercise of the BAP Options, which shall not
exceed 7,000 shares). BAP shall notify Paging Partners and Newco in writing
immediately upon receipt of any inquiry, offer or proposal relating to any of
the foregoing, and such notice shall identify the Person(s) making such inquiry,
offer or proposal and shall describe the material terms thereof.
(b) During the period from the date of this Agreement and continuing
until the earlier of (i) the termination of the Agreement in accordance with
Article VI hereof or (ii) the
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Effective Time, Paging Partners and Newco shall not authorize any Person or
individual to, directly or indirectly, through any officer, director, agent,
employee or otherwise, (a) entertain, solicit, initiate or encourage any
inquiries or the submission of proposals or offers from any Person relating to
any acquisition or purchase of any of the shares of the capital stock of Paging
Partners or Newco and/or all or any material portion of Paging Partners' or
Newco's assets or any equity interest in Paging Partners or Newco or any equity
investment, merger, consolidation or business combination with Paging Partners
or Newco (including by way of tender offer), or (b) participate in any
discussions or negotiations regarding, or furnish to any other Person any
information with respect to, or otherwise cooperate in any way with, or assist
or facilitate or encourage, any effort or attempt by any other person to do or
seek any of the foregoing. Paging Partners and Newco shall notify BAP in writing
immediately upon receipt of any inquiry, offer or proposal relating to any of
the foregoing, and such notice shall identify the Persons making such inquiry,
offer or proposal and shall describe the material terms thereof.
(c) Notwithstanding anything to the contrary in Section 4.5(b),
Paging Partners may furnish information to, and may participate in discussions
or negotiations with, any person that, unsolicited by Paging Partners, its
officers, directors, agents, or employees, has submitted a written proposal to
the Board of Directors of Paging Partners relating to a Competing Transaction
(as defined below), in each case, to the extent that the Board of Directors
determines in good faith that the failure to do so would cause the Board of
Directors to breach its fiduciary duties to Paging Partners or its stockholders
under applicable Laws after receipt of advice to such effect from legal counsel
and, notwithstanding anything to the contrary contained in this Agreement, any
such furnishing of information and participation in discussions or negotiations
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shall not constitute a breach of this Agreement by Paging Partners or Newco;
provided, however, that if Paging Partners shall furnish such information or
participate in such discussions or negotiations, it shall notify BAP promptly of
such action. A "Competing Transaction" means any of the following involving
Paging Partners (other than the transactions contemplated by this Agreement):
(i) a merger, consolidation, share exchange, business combination or other
similar transaction, (ii) any sale, lease, exchange, transfer or other
disposition of 10% or more of the assets of Paging Partners and Newco, taken as
a whole, or (iii) a tender offer or exchange offer for, or any other acquisition
of, 10% or more of the outstanding voting securities of Paging Partners.
4.7 Notification of Certain Matters.
(a) BAP shall promptly inform Paging Partners and Newco in writing
of (i) the occurrence, or failure to occur, of any event, which occurrence or
failure would be reasonably likely to cause any representation or warranty
contained in this Agreement to be untrue or inaccurate at any time from the date
hereof to the Effective Time, if such untrue or inaccurate representation and
warranty would be reasonably likely to have a Material Adverse Effect on Paging
Partners, Newco, the Bell Atlantic Acquisition or the Merger; (ii) the failure
of BAP to obtain the Financing for the Bell Atlantic Acquisition as required by
Section 5.2(l) hereof; (iii) any failure of BAP or of any officer, director,
employee or agent thereof, to comply with or satisfy any covenant, condition or
agreement to be complied with or satisfied by it under this Agreement, which
failure would be reasonably likely to have a Material Adverse Effect on Paging
Partners, Newco, the Bell Atlantic Acquisition or the Merger; (iv) any material
adverse change which shall have occurred or been threatened in the financial
condition, results of operations, business or
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assets of BAP; and (v) any litigation, or any claim or controversy or contingent
liability that might reasonably be expected to become the subject of litigation,
against BAP or affecting any of its property to the extent that the result of
such litigation, if adversely determined, could have a Material Adverse Effect
on BAP, the Bell Atlantic Acquisition or the Merger; provided, however, that no
such notification shall affect the representations or warranties of BAP
contained herein or the conditions to the obligations of Paging Partners and
Newco hereunder.
(b) Paging Partners and Newco shall promptly inform BAP in writing
of (i) the occurrence, or failure to occur, of any event which occurrence or
failure would be reasonably likely to cause any representation or warranty
contained in this Agreement to be untrue or inaccurate at any time from the date
hereof to the Effective Time, if such untrue or inaccurate representation and
warranty would be reasonably likely to have a Material Adverse Effect on Paging
Partners, Newco, the Bell Atlantic Acquisition or the Merger; (ii) any failure
of Paging Partners or Newco of any officer, director, employee or agent thereof,
to comply with or satisfy any covenant, condition or agreement to be complied
with or satisfied by it under this Agreement, which failure would be reasonably
likely to have a Material Adverse Effect on BAP, the Bell Atlantic Acquisition
or the Merger; (iii) any material adverse change which shall have occurred or
been threatened in the financial condition, results of operations, business or
assets of Paging Partners or Newco; (iv) any litigation, or any claim or
controversy or contingent liability that might reasonably be expected to become
the subject of litigation, against Paging Partners or Newco or affecting any of
their property to the extent that the result of such litigation, if adversely
determined, could have a Material Adverse Effect on Paging Partners and Newco,
taken as a whole, or on the Merger; and (v) any change in the status of the
Motorola Loan; provided,
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however, that no such notification shall affect the representations or
warranties of Paging Partners and Newco contained herein or the conditions to
the obligations of BAP hereunder.
4.8 Information for Proxy Statement.
Subject to Section 4.1 (b) hereof, BAP shall furnish to Paging
Partners such information regarding BAP as Paging Partners may reasonably
request and as shall be required or useful, in the sole opinion of Paging
Partners, in connection with the preparation, and the filing and approval by the
SEC, of the Paging Partners Proxy Statement; provided, that if information with
respect to the Bell Atlantic Acquisition, the Bell Atlantic Acquisition
Agreement or Bell Atlantic Paging Business is not available or cannot be
provided without the consent of the Bell Atlantic Subsidiaries pursuant to the
terms of the Bell Atlantic Acquisition Agreement and the Bell Atlantic Consent,
BAP shall use commercially reasonable efforts to obtain the requested
information or the consent to the public disclosure of such information, as the
case may be, from the Bell Atlantic Subsidiaries as soon as practicable after
any such request. If, however, after using commercially reasonable efforts, BAP
fails to obtain such requested information, or the consent to the disclosure of
such requested information, as the case may be, and if, as a result of such
failure, BAP, Paging Partners and/or Newco are unable to perform their
respective obligations or satisfy their conditions to closing under this
Agreement, including without limitation those under Sections 4.1, 4.5, 4.8, 4.9,
4.11, and 4.14 hereof, then the parties hereto agree that (i) the time for BAP,
Paging Partners and Newco to perform their obligations under this Agreement
shall be extended for the Extension Period and (ii) none of BAP, Paging Partners
or Newco shall be in breach of this Agreement during the Extension Period as a
result of the circumstances described in this Section 4.8. Notwithstanding any
other provision of this
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Agreement or the Transaction Documents, if BAP cannot obtain the requested
information or the consent to the disclosure of such requested information, and
Paging Partners terminates the Extension Period, then the parties agree that for
purposes of Article VI and Section 8.5 hereof, none of BAP, Paging Partners or
Newco shall be in breach of this Agreement as a result of the failure to provide
information related to the Bell Atlantic Subsidiaries described in this Section
4.8. BAP shall use commercially reasonable efforts to provide Paging Partners or
Newco with any such requested information or consent as soon as practicable
following the closing of the Bell Atlantic Acquisition.
4.9 Stockholder Approval.
Subject to Section 4.1(b) and Section 4.8 hereof, as promptly as
practicable after the date hereof, Paging Partners, Newco and BAP shall prepare
and file with the SEC a preliminary form of the Paging Partners Proxy Statement,
and other proxy materials related thereto, with respect to a meeting of Paging
Partners stockholders to consider approval, in a single vote (unless the SEC
shall request or require otherwise), of the Merger, the issuance of the Paging
Partners Common Stock pursuant to this Agreement and any other related
transactions contemplated by this Agreement (collectively, the "Related
Transactions"), including without limitation, (i) the approval, as of the
Effective Time, of amendment of the Certificate of Incorporation of Paging
Partners to be as set forth on Exhibit 4.18 hereto, (ii) the election, as of the
Effective Time, of the persons set forth on Exhibit 4.19 hereto as members of
the Board of Directors of Paging Partners to the respective classes indicated
therein, (iii) the approval, as of the Effective Time, of the amendments of the
Paging Partners Option Plan to (x) increase the number of shares of Paging
Partners Common Stock available for issuance thereunder, (y)
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provide for the "rollover" of the BAP Options under the Paging Partners Option
Plan in accordance with Section 4.25 hereof and (z) extend the period during
which currently outstanding Paging Partners Options may be exercised after the
termination of the directorships or employment or consulting arrangements of
Paging Partners' directors, officers, employees and consultants to two years
following the date of such termination, (iv) the approval of a reverse stock
split on terms sufficient for the Paging Partners Common Stock to continue to
satisfy the requirements for quotation on the Nasdaq Small Cap Market (the
"Reverse Stock Split"), provided that the Board of Directors of Paging Partners
shall have the discretion to implement the Reverse Stock Split and to determine
the terms and conditions thereof provided, however, that such terms and
conditions are reasonably satisfactory to BAP, and (v) the approval of the
transfer of all or substantially all the assets, subject to all of the
liabilities, of Paging Partners to the Surviving Corporation immediately
following the Merger, provided, however, that to the extent required by Finova,
Paging Partners shall use commercially reasonable efforts to cause such transfer
to occur immediately prior to or simultaneously with the closing of the Merger.
As soon as reasonably practicable after the date hereof, Paging Partners, acting
through its Board of Directors shall cause a special meeting of its stockholders
to be duly called and shall give notice of, convene and hold such special
meeting for the purposes of approving this Agreement and the Related
Transactions that require the approval of Paging Partners' stockholders. Paging
Partners shall, after consultation with BAP, respond promptly to any comments of
the SEC relating to the preliminary Paging Partners Proxy Statement and shall
cause the definitive Paging Partners Proxy Statement to be mailed to its
stockholders as soon as practicable after any such comments are resolved to the
satisfaction of the SEC or, if the SEC has indicated that it does not intend to
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review the Paging Partners Proxy Statement and the applicable period for review
by the SEC shall have lapsed, as soon as practicable following the lapse of such
review period. Whenever any event occurs that should be set forth in a
supplement to the Paging Partners Proxy Statement or any other filing required
to be made with the SEC, each party will promptly inform the other and cooperate
in filing such supplement with the SEC and/or mailing such supplement to the
stockholders of Paging Partners. The Paging Partners Proxy Statement and all
supplements thereto shall comply with applicable law and shall be in form and
substance reasonably satisfactory to BAP. Paging Partners, acting through its
Board of Directors, shall subject to their fiduciary duties under applicable law
as advised by counsel, include in the Paging Partners Proxy Statement the
unanimous recommendation of its Board of Directors that the stockholders of
Paging Partners vote in favor of the approval and adoption of this Agreement,
the Merger and the Related Transactions and shall use all reasonable efforts to
secure such approval and adoption.
4.10 Commercially Reasonable Efforts, Etc. Subject to the terms and
conditions of this Agreement, each of the parties agrees to use all commercially
reasonable efforts to take or cause to be taken all such action as may be
necessary, proper or advisable under applicable law in order to effectuate the
Merger simultaneously with or as promptly as possible after the closing of the
Bell Atlantic Acquisition. If at any time after the Closing any further action
is necessary or desirable to carry out the purposes hereof, including without
limitation the execution of additional instruments in order to comply with the
DGCL, the officers, directors and partners of each party to this Agreement are
fully authorized to take, and shall take, all such action.
4.11 Public Announcements. Promptly after the execution of this Agreement,
the parties shall issue a press release substantially in the form attached to
the Bell Atlantic Consent (as
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defined below). Subject to Section 4.1 (b) hereof, the Bell Atlantic
Confidentiality Provisions, and the Bell Atlantic Consent, the parties agree
that prior to the Effective Time, Paging Partners and Newco, on the one hand,
and BAP, on the other hand, shall consult with each other before issuing any
press release or other public statement with respect to the Merger or this
Agreement and shall not issue any such press release or make any such public
statement without the prior consent of the other party, which shall not be
unreasonably withheld, and, to the extent required under the Bell Atlantic
Acquisition Agreement, without the prior consent of the Bell Atlantic
Subsidiaries; provided that Paging Partners may, without the prior consent of
BAP, issue such press release or make such public statement as may upon the
advice of counsel be required by law if it has used reasonable efforts to
consult first with BAP; and provided further that nothing contained herein shall
restrict the ability of Paging Partners to make such disclosures as may be
required under applicable securities laws or under the applicable rules of
NASDAQ. BAP shall use all commercially reasonable efforts to obtain any such
consent required by the Bell Atlantic Acquisition Agreement and the Bell
Atlantic Consent from the Bell Atlantic Subsidiaries.
4.12 Consents, Approvals and Filings. The parties hereto will make all
necessary filings, as soon as reasonably practicable, including without
limitation those required under applicable securities laws and regulations and
applicable laws and regulations of the FCC, in order to facilitate the prompt
consummation of the Merger and the other transactions contemplated by this
Agreement. The parties hereto will use reasonable efforts and cooperate fully
with each other to (a) comply with all governmental requirements applicable to
the Merger and (b) obtain as promptly as practicable all necessary permits,
consents and approvals of governmental entities and consents of all third
parties necessary for the consummation of the Mergers and the other
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transactions contemplated hereby. Without limiting the foregoing, the
appropriate parties hereto shall promptly make all necessary filings with the
FCC in connection with the Merger and the transactions contemplated hereby.
4.13 Current Information. During the period from the date of this
Agreement to the Effective Time, BAP and Paging Partners will cause one or more
of their designated representatives to confer on a regular and frequent basis
(not less than weekly) with each other and to report the general status of the
ongoing operations of each of Paging Partners, Newco, and BAP. BAP will promptly
notify Paging Partners and Newco of any material change in the normal course of
business or in the operation of the properties of BAP and of any governmental
complaints, investigations or hearings (or communications indicating that the
same may be contemplated), or the institution or the threat of significant
litigation involving BAP and will keep Paging Partners and Newco fully informed
of such events. Paging Partners and Newco will promptly notify BAP of any
material change in the normal course of business or in the operation of the
properties of Paging Partners and Newco and of any governmental complaints,
investigations or hearings (or communications indicating that the same may be
contemplated), or the institution or the threat of significant litigation
involving Paging Partners or Newco and will keep BAP fully informed of such
events.
4.14 Lender Consents. With respect to all loans of Paging Partners, Newco
and BAP that are anticipated to be outstanding as of the Effective Time and for
which a consent of the lender is required in connection with this Agreement,
each of Paging Partners, Newco, and BAP undertakes to seek such consent and,
subject to Section 4.1 hereof, promptly to provide such
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lenders with such information as they may require to provide consent. The
parties hereto agree to assist each other in seeking such consents.
4.15 Quotation of Paging Partners Common Stock. Paging Partners shall use
its best efforts to cause the shares of Paging Partners Common Stock to be
issued pursuant to this Agreement to be approved for quotation on the Nasdaq
Small Cap Market, subject to official notice of issuance, prior to the Effective
Time.
4.16 Indemnification of Officers and Directors.
(a) From and after the Effective Time until the tenth anniversary of
the Effective Time (the "Indemnification Period"), Paging Partners shall
indemnify and hold harmless each current and former director and officer of BAP
and each current and former director and officer of Paging Partners (each, an
"Indemnitee") against any costs or expenses (including attorneys' fees),
judgments, fines, losses, claims, damages or liabilities incurred in connection
with any claim, action, suit, proceeding or investigation, whether civil,
criminal, administrative or investigative, arising out of or pertaining to
matters existing or occurring at or prior to the Effective Time, whether
asserted or claimed prior to, at or after the Effective Time, to the fullest
extent that BAP or Paging Partners, as applicable, would have been permitted,
under Delaware law and its Certificate of Incorporation and By-laws in effect as
of the date hereof, to indemnify such persons (including the advancing of
expenses as incurred (including the cost of any investigation and preparation
incurred in connection therewith) to the fullest extent permitted under Delaware
law), provided that the Indemnitee to whom such expenses are advanced provides
an undertaking to Paging Partners to repay such advance if it is ultimately
determined that such person is not entitled to indemnification under Delaware
law; provided, further, that any
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determination required to be made with respect to whether an Indemnitee's
conduct complies with the standards set forth under Delaware law and the
Certificate of Incorporation and Bylaws of BAP or Paging Partners, as
applicable, shall be made by independent counsel selected by Paging Partners
(without participation by the Indemnitee and related parties) and reasonably
satisfactory to such Indemnitee ("Independent Counsel"). If any claim or claims
are asserted or made within the Indemnification Period, all rights to
indemnification hereunder in respect of any such claim shall continue until
disposition of any and all such claims, irrespective of whether such disposition
occurs within the Indemnification Period.
(b) An Indemnitee shall give prompt written notice to Paging
Partners upon learning of any claim, action, suit or proceeding for which
indemnification properly may be sought hereunder (although the failure so to
notify Paging Partners shall not relieve Paging Partners from any liability that
Paging Partners may have under this Section 4.16, except to the extent that such
failure actually prejudices Paging Partners), and Paging Partners, through
counsel reasonably satisfactory to the Indemnitee, may assume the defense
thereof; provided, however, that any Indemnitee shall be entitled to participate
in (but not control) any such action, suit or proceeding with counsel of his own
choice but at his own expense; and provided, further, that any Indemnitee shall
be entitled to participate in (and control, with respect to matters pertaining
to such Indemnitee) any such action, suit or proceeding with counsel of his own
choice at the expense of Paging Partners if (in the opinion of Independent
Counsel) representation by Paging Partners's counsel would, or would reasonably
be expected to, present a conflict of interest or if there would be, or there
would reasonably be expected to be, defenses available to the Indemnitee that
could be in conflict or inconsistent with those available to Paging Partners. In
any event, if Paging
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Partners's counsel fails to assume the defense within a reasonable time, the
Indemnitee may assume such defense and the fees and expenses of his attorneys
(if indemnification for the subject claims was properly sought hereunder) shall
be borne by Paging Partners. No action, suit or proceeding for which
indemnification may be sought shall be compromised or settled without the
consent of Paging Partners, which consent shall not be unreasonably withheld.
Paging Partners shall not, without the consent of the Indemnitee, (i) compromise
or settle any action, suit or proceeding or consent to the entry of any judgment
that does not include as an unconditional term thereof the delivery by the
claimant or plaintiff to the Indemnitee of a written release from all liability
in respect of such action, suit or proceeding or (ii) compromise or settle any
action, suit or proceeding in any manner that may adversely affect the
Indemnitee other than as a result of money damages or other money payments for
which Paging Partners is fully responsible with no recourse by the claimant to
the asserts of any Indemnitee.
(c) This Section 4.16 shall survive the consummation of the Merger.
The provisions of this Section 4.16 are intended to be for the benefit of, and
shall be enforceable by, each Indemnitee, his heirs and representatives and
shall be binding upon Paging Partners and Paging Partners and its successors and
assigns. The rights provided to the Indemnitees hereunder shall be in addition
to, and shall not be in lieu of or otherwise diminish in any respect, any rights
to indemnity that such parties may have under the Certificate of Incorporation
or Bylaws of BAP or Paging Partners or any other agreement entered into by an
Indemnitee with BAP prior to the date hereof; provided, that true, complete and
correct copies of such agreements shall have been delivered to Paging Partners
prior to the date hereof.
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4.17 Directors and Officers Liability Insurance. Each of the parties
hereby agrees to use all commercially reasonable efforts to take or cause to be
taken all such action as may be necessary, proper or advisable (i) to increase
the amount of Paging Partners' directors and officers liability insurance from
$2 million to $5 million prior to or at the Effective Time, (ii) to continue
coverage thereunder for each current and former director and officer of Paging
Partners, and (iii) to extend coverage thereunder to each current and former
director and officer of BAP at and after the Effective Time.
4.18 Certificate of Incorporation of Paging Partners. Paging Partners
shall take, or cause to be taken, all action necessary so that at or immediately
after the Effective Time, the Certificate of Incorporation of Paging Partners
shall be as set forth in Exhibit 4.18 hereto.
4.19 Directors and Officers of Paging Partners and the Surviving
Corporation.
(a) Paging Partners shall take, or cause to be taken, all action
necessary so that at the Effective Time, the directors and officers of Paging
Partners shall be as set forth on Exhibit 4.19, provided, however, that Paging
Partners shall nominate its directors prior to the filing of the Paging Partners
Proxy Statement with the SEC, and provided, further, that if, prior to the
Effective Time, Allen & Company Incorporated exercises its right, pursuant to
its Common Stock Purchase Agreement, dated as of May 7, 1996, with Paging
Partners, to appoint two members of the Board of Directors of Paging Partners,
then the number of directors on the Board of Directors of Paging Partners shall
be increased from seven to eleven, and the number of such directors that BAP
shall have the right to designate shall be increased from four to six.
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(b) Paging Partners, Newco and BAP shall take, or cause to be taken,
all action necessary so that at or immediately after the Effective Time, the
Directors and Officers of the Surviving Corporation shall be as set forth on
Exhibits 1.6 and 1.7 hereto, respectively.
4.20 BAP Agreements. At the Effective Time, Paging Partners shall assume
the obligations of BAP under the BAP Employment Agreements and the Deerfield
Agreement, whether by amendment or otherwise.
4.21 Employees.
(a) Each of the parties hereby agrees that if any employee of Paging
Partners who is on the payroll of Paging Partners at the Effective Time is
terminated without Cause (as defined below) within 90 days following the
Effective Time, Paging Partners or the Surviving Corporation will pay to such
employee the greater of (i) such employee's salary for 90 days following the
date of his termination or (ii) the proceeds of any retention bonus offered to
such employee prior to the Effective Time. For purposes of this Section 4.21,
Paging Partners or the Surviving Corporation shall have "Cause" to terminate an
employee's employment hereunder upon the employee's (i) continued and willful
refusal or neglect to perform and discharge his material duties and
responsibilities as an employee of Paging Partners or the Surviving Corporation;
(ii) gross misconduct that is materially injurious to Paging Partners or the
Surviving Corporation or that is likely to have a Material Adverse Effect on the
employee's ability to perform his duties and responsibilities as an employee of
Paging Partners or the Surviving Corporation; (iii) fraud, embezzlement or other
acts of dishonesty of the employee with respect to Paging Partners or the
Surviving Corporation or any subsidiary or affiliate thereof; (iv) conviction
of, or a plea of guilty or nolo contendere entered by the employee to, a felony
or a crime, which conviction or plea is
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likely to have a Material Adverse Effect on Paging Partners and the Surviving
Corporation, taken as a whole, or on the employee's ability to perform his
duties and responsibilities as an employee of Paging Partners or the Surviving
Corporation; (v) willful or prolonged absence from work by the employee (other
than by reason of disability due to physical or mental illness); or (vi) willful
commission of acts by the employee that reflect adversely, in material respects,
upon Paging Partners or the Surviving Corporation or their business, customers
or other employees.
(b) Notwithstanding the foregoing, each of the parties hereby agrees
that Paging Partners and the Surviving Corporation shall comply with the terms
and provisions of the Bell Atlantic Acquisition Agreement relating to BAP's
obligations to the employees of the Bell Atlantic Subsidiaries in connection
with the Bell Atlantic Acquisition.
4.22 Consulting Agreement. Each of the parties hereby agrees that Paging
Partners shall use commercially reasonable efforts to secure the services of
Richard Giacchi as an on-call consultant to Paging Partners for the two year
period commencing at the Effective Time for a consulting fee of $25,000 per year
payable in equal monthly installments.
4.23 Contribution to the Surviving Corporation. Immediately following the
Effective Time, Paging Partners shall transfer all or substantially all of its
assets, subject to its liabilities, to the Surviving Corporation, provided,
however, that to the extent required by Finova, Paging Partners shall use
commercially reasonable efforts, and the parties shall cooperate, to cause such
transfer to occur immediately prior to or simultaneously with the closing of the
Merger.
4.24 Investment Letters. BAP shall cause each of its stockholders to
execute an investment letter prior to the Effective Time, such letter to be
substantially in the form attached hereto as Exhibit 4.24 (the "Investment
Letter").
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4.25 BAP Option Plan.
(a) At the Effective Time, (i) each outstanding BAP Option under the
BAP Option Plan, whether vested or unvested, shall become an option to acquire,
otherwise on the same terms and conditions as were applicable under such BAP
Option, a number of shares of Paging Partners Common Stock equal to the product
(rounded down to the nearest whole share) of (A) the number of shares of BAP
Common Stock issuable upon the exercise of the BAP Option immediately prior to
the Effective Time and (B) the Conversion Number (the "Rollover Options") , and
(ii) the price per share of Paging Partners Common Stock at which such Rollover
Option is exercisable shall be $1.125 (subject to customary adjustments,
including without limitation, upon consummation of the Reverse Stock Split).
(b) As soon as practicable after the Effective Time, Paging Partners
shall deliver to the holders of the Rollover Options appropriate notices setting
forth such participants' rights pursuant thereto, and the grants of the Rollover
Options shall continue in effect on the same terms and conditions as the BAP
Options (subject to the adjustments required by this Section 4.25) after giving
effect to the Merger. Paging Partners shall comply with the terms of the Paging
Partners Option Plan and insure, to the extent required by and subject to the
provisions of, such Paging Partners Option Plan, that BAP Options that qualified
as qualified stock options prior to the Effective Time shall continue to qualify
as qualified stock options after the Effective Time.
(c) Subject to the approval by the stockholders of Paging Partners
of amendments to the Paging Partners Option Plan in accordance with Section 4.9
hereof, Paging Partners shall take all corporate action necessary to authorize
and reserve for issuance a sufficient number of shares of Paging Partners Common
Stock for delivery upon exercise of the Rollover Options
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under the Paging Partners Option Plan. As soon as practicable after the
Effective Time, Paging Partners shall file a registration statement on Form S-3
or Form S-8, as the case may be (or any successor or other appropriate forms),
or another appropriate form or amend an existing registration statement on such
forms to register all of the shares of Paging Partners Common Stock subject to
the Paging Partners Option Plan, including the Rollover Options, under the
Securities Act and shall use its best efforts to maintain the effectiveness of
such registration statement or registration statements (and maintain the current
status of the prospectus or prospectuses contained therein) for so long as such
Rollover Options (and any other options issued thereunder) remain outstanding.
With respect to those individuals who subsequent to the Merger will be subject
to the reporting requirements under Section 16(a) of the Exchange Act, where
applicable, Paging Partners shall administer the Paging Partners Option in a
manner that complies with Rule 16b-3 promulgated under the Exchange Act.
4.26 Paging Partners Employment Agreements. Paging Partners shall amend
each of its employment agreements with directors, officers, employees and
consultants existing on the date hereof (the "Paging Partners Employment
Agreements") to reflect, effective as of the Effective Time, (i) the resignation
of each such director, officer, employee or consultant from his position with
Paging Partners and Newco and (ii) any necessary change in the title, duties or
responsibilities of such director, officer, employee or consultant with Paging
Partners, Newco or the Surviving Corporation, provided, however, that the
economic terms of each Paging Partners Employment Agreement, as so amended, will
be the same as those in effect prior to the Effective Time.
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4.27 Paging Partners Options. Paging Partners shall take all necessary
corporate action so that none of the Paging Partners Options will become subject
to (i) termination or cancellation requiring the payment of any consideration or
(ii) any adjustment in the exercise price thereof (other than in connection with
the Reverse Stock Split), in each case, in connection with or as a result of the
Merger or any other transaction contemplated by this Agreement).
ARTICLE V
CONDITIONS TO OBLIGATIONS
5.1 Conditions to Each Party's Obligation to Effect the Merger. The
respective obligations of Paging Partners, Newco and BAP to consummate the
transactions contemplated by this Agreement are subject to the satisfaction or
waiver (to the extent permitted by applicable law), at or prior to the Effective
Time, of each of the following conditions:
(a) Stockholder Approval. The stockholders of Paging Partners shall
have taken all necessary action to authorize, approve and adopt the Merger and
the Related Transactions.
(b) No Injunction. As of the Effective Time, no statute, rule,
regulation, order, judgment, injunction, writ or preliminary restraining order
or decree of any nature shall have been issued, enacted, entered, promulgated or
enforced by any court of competent jurisdiction or governmental authority, which
prohibits or restricts the consummation of the Merger or makes such consummation
illegal.
(c) Approvals. All regulatory permits, approvals, filings, waiting
periods and consents required to be obtained or made prior to the consummation
of the Merger under applicable Federal or state law shall have been obtained,
made or expired, as the case may be, and
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shall remain in full force and effect. Without limiting the foregoing, all
required FCC approvals and consents (which shall be obtained for purposes of
this Agreement only when they have become Final Orders as defined Article VII)
shall have been obtained.
(d) Consents. (i) Any approval, consent or waiver required to be
obtained under any indebtedness of Paging Partners, Newco, or BAP in order to
consummate the transactions contemplated hereby shall have been obtained on
terms reasonably satisfactory to BAP, Paging Partners and Newco provided,
however, that any approval, consent or waiver obtained under the Motorola Credit
Agreement shall be satisfactory to BAP if it has been obtained on terms
reasonably satisfactory to Paging Partners and Newco and (ii) any approval or
consent of any other third party required as a condition to the consummation of
the Merger shall have been obtained if the failure to obtain such approval or
consent would preclude or prohibit the consummation of the Merger or would have
a Material Adverse Effect on BAP, Paging Partners, Newco or (assuming and giving
effect to consummation of the Merger) the Surviving Corporation.
(e) Bell Atlantic Acquisition. The closing of the Bell Atlantic
Acquisition shall have occurred.
(f) Nasdaq. The shares of Paging Partners Common Stock issuable in
the Merger shall have been approved for quotation upon notice of issuance by
Nasdaq.
(g) Contribution to the Surviving Corporation. If and to the extent
required by Finova, Paging Partners shall have contributed its assets, subject
to related liabilities, to the Surviving Corporation immediately prior to or
simultaneously with the Effective Time.
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5.2 Conditions to Obligations of Paging Partners and Newco. The
obligations of each of Paging Partners and Newco to consummate the transactions
contemplated by this Agreement are also subject to the satisfaction of each of
the following additional conditions, any one or all of which may be waived in
whole or in part by Paging Partners and Newco to the extent permitted by
applicable law:
(a) Representations and Warranties. All representations and
warranties of BAP contained in this Agreement shall be true and correct in all
material respects (other than representations and warranties that contain
materiality qualifications which shall be true and correct in all respects) as
of the date when made and at and as of the Effective Time, with the same force
and effect as though made as of the Effective Time, except for changes expressly
permitted by this Agreement or where such representations or warranties are
expressly limited by their terms to a prior date.
(b) Performance of Agreement. BAP shall have duly performed in all
material respects all obligations and agreements, and complied in all material
respects with all covenants and conditions contained in this Agreement to be
performed or complied with by it prior to or at the Effective Time. None of the
events permitting Paging Partners and Newco to terminate this Agreement under
Article VI hereof shall have occurred and be continuing.
(c) Officer's Certificate. BAP shall have delivered to Paging
Partners and Newco a certificate, dated the Effective Time, of an officer of BAP
certifying that the conditions specified in Section 5.1 (as they relate to BAP)
and Section 5.2(a) and (b) hereof have been fulfilled .
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(d) Actions and Proceedings. All actions, proceedings, instruments
and documents required to allow BAP to carry out the transactions contemplated
hereby or incident hereto and all other related legal matters shall have been
satisfactory to and approved by Paging Partners' counsel (such approval not to
be unreasonably withheld), and such counsel shall have been furnished with such
certified copies of such corporate actions and proceedings and such other
instruments as it shall have reasonably requested.
(e) No Material Adverse Change. From the date hereof to the
Effective Time, there shall not have been any material adverse change in the
condition (financial or otherwise), properties or assets, liabilities, business
or operations of BAP; BAP shall not have sustained any loss or damage, whether
or not insured, that materially and adversely affects its ability to conduct its
business; and Paging Partners and Newco shall have received a certificate, dated
the date of the Effective Time, signed by the President of BAP, to the foregoing
effect.
(f) Absence of Natural Disasters. The business and assets of BAP
shall not have been, and shall not be seriously threatened to be materially
adversely affected in any way as a result of fire, explosion, disaster,
accident, labor dispute, any action by the United States of America or any other
government or governmental authority, flood, riot, act of war, act of public
enemy, civil disturbance, or act of God.
(g) No Litigation. Immediately prior to the Effective Time, no
action, suit, claim or proceeding shall have been commenced and be pending
against BAP by any third party that seeks to prohibit or restrict the
consummation of the Merger, and/or that Paging Partners and Newco, in good faith
and with the advice of counsel, believe makes it undesirable or unadvisable for
Paging Partners or Newco to consummate the Merger.
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(h) Receipt of Licenses, Permits and Consents. Paging Partners and
Newco shall have received evidence, in form and substance reasonably
satisfactory to it, that BAP obtained all material waivers, consents, approvals,
licenses, permits, authorizations and transfers of authorizations that are
necessary or desirable in order to consummate the transactions contemplated by
this Agreement. Any consent required for the consummation of the Merger under
any material contract to which BAP is a party, or for the continued enjoyment by
the Surviving Corporation of the benefits of any such agreement, contract or
license after the Merger, shall have been obtained on terms reasonably
satisfactory to Paging Partners and Newco. Paging Partners and Newco shall have
received any and all regulatory consents and approvals and third party consents
and approvals necessary in order for it to consummate the Merger and the other
transactions contemplated by this Agreement on terms reasonably satisfactory to
Paging Partners and Newco.
(i) Securities Matters. Paging Partners and Newco shall have
received all necessary state securities or "blue sky" permits or authorizations
necessary to issue Paging Partners Common Stock in the Merger or shall have duly
qualified for exemptions from registration thereunder. Paging Partners and Newco
shall have received a duly executed Investment Letter from each person who shall
be a stockholder of BAP as of the Effective Time and who shall receive any
shares of Paging Partners Common Stock in the Merger. Without limiting the
foregoing, Paging Partners and Newco shall be reasonably satisfied that (i) all
certificates representing Paging Partners Common Stock issued in the Merger
shall bear appropriate restrictive legends and (ii) the issuance of Paging
Partners Common Stock in the Merger is exempt from the registration requirements
of the Securities Act by virtue of the
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exemption contained in Section 4(2) of such Act and/or Rule 506 of Regulation D
adopted thereunder.
(j) BAP Preferred Stock. Immediately prior to or at the Effective
Time, all issued and outstanding shares of BAP Preferred Stock shall have
converted into shares of BAP Common Stock.
(k) Directors and Officers of the Surviving Corporation. All of the
directors and officers of BAP immediately prior to the Effective Time shall have
submitted their written resignations effective as of the Effective Time. Prior
to or at the Effective Time, BAP shall have taken, or caused to be taken, all
necessary corporate action so that, at or immediately after the Effective Time,
the directors and officers of the Surviving Corporation shall be as set forth on
Exhibits 1.6 and 1.7 hereto, respectively.
(l) BAP Financing. In connection with the Bell Atlantic Acquisition,
BAP shall have obtained (i) debt financing in an aggregate principal amount of
at least $20,350,000 in addition to the Bell Atlantic Note and (ii) equity
financing in an aggregate amount of at least $6,000,000 from the Equity
Participants.
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5.3 Conditions to the Obligations of BAP. The obligation of BAP to
consummate the transactions contemplated by this Agreement is subject to the
satisfaction or waiver (to the extent permitted by applicable law), at or prior
to the Effective Time, of each of the following conditions:
(a) Representations and Warranties. All representations and
warranties of Paging Partners and Newco contained in this Agreement shall be
true and correct in all material respects (other than representations and
warranties that contain materiality qualifications, which shall be true and
correct in all respects) as of the date when made and at and as of the Effective
Time, with the same force and effect as though made as of the Effective Time,
except for changes expressly permitted by this Agreement or where such
representations or warranties are expressly limited by their terms to a prior
date.
(b) Performance of Agreement. Paging Partners and Newco shall have
duly performed in all material respects all obligations and agreements and
complied in all material respects with all covenants and conditions contained in
this Agreement to be performed or complied with by them prior to or at the
Effective Time. None of the events permitting BAP to terminate this Agreement
under Article VI hereof shall have occurred and be continuing.
(c) Officer's Certificate. Paging Partners and Newco shall have
delivered to BAP a certificate, dated the Effective Time, of a officers of
Paging Partners and Newco certifying that the conditions specified in Section
5.1 (as they relate to Paging Partners and Newco) and Section 5.3(a) and (b)
hereof have been fulfilled.
(d) Actions and Proceedings. All actions, proceedings, instruments
and documents required by Paging Partners and Newco to carry out the
transactions contemplated hereby or incident hereto and all other related legal
matters shall have been satisfactory to and
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approved by BAP and its counsel (such approval not to be unreasonably withheld),
and such counsel shall have been furnished with such certified copies of such
corporate actions and proceedings and such other instruments as it shall have
reasonably requested.
(e) No Material Adverse Change. From the date hereof to the
Effective Time, there shall not have been any material adverse change in the
condition (financial or otherwise), properties or assets, liabilities, business
or operations of Paging Partners and Newco; neither Paging Partners nor Newco
shall have sustained any loss or damage, whether or not insured, that materially
and adversely affects its ability to conduct its business; and BAP shall have
received a certificate, dated the date of the Effective Time, signed by the
President of Paging Partners and the President of Newco, to the foregoing
effect.
(f) Absence of Natural Disasters. The business and assets of Paging
Partners and Newco shall not have been, and shall not be, seriously threatened
to be materially adversely affected in any way as a result of fire, explosion,
disaster, accident, labor dispute, any action by the United States of America or
any other government or domestic or foreign governmental authority, flood, riot,
act of war, act of public enemy, civil disturbance, or act of God.
(g) No Litigation. Immediately prior to the Effective Time, no
action, suit, claim or proceeding shall have been commenced and be pending by
any third party against Paging Partners or Newco that seeks to prohibit or
restrict the consummation of the Merger and/or that BAP, in good faith and with
the advice of counsel, believes make it undesirable or unadvisable for BAP to
consummate the Merger.
(h) Receipt of Licenses, Permits and Consents. BAP shall have
received evidence, in form and substance reasonably satisfactory to it, that
Paging Partners and Newco obtained all material waivers, consents, approvals,
licenses, permits, authorizations and transfers
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of authorizations that are necessary or desirable in order to consummate the
transactions contemplated by this Agreement. Any consent required for the
consummation of the Merger under any Material Contract to which Paging Partners
or Newco is a party, or for the continued enjoyment by the Surviving Corporation
of the benefits of any such agreement, contract or license after the Merger
shall have been obtained on terms reasonably satisfactory to BAP, provided,
however, that any approval, consent or waiver obtained under the Motorola Credit
Agreement shall be satisfactory to BAP if it has been obtained on terms
reasonably satisfactory to Paging Partners and Newco. BAP shall have received
any and all regulatory consents and approvals and third party consents and
approvals necessary in order for it to consummate the Merger and the other
transactions contemplated by this Agreement on terms reasonably satisfactory to
BAP.
(i) Registration Rights Agreement. Paging Partners shall have
executed and delivered the Registration Rights Agreement.
(j) Certificate of Incorporation of Paging Partners. Prior to or at
the Effective Time, Paging Partners shall have taken or caused to be taken, all
necessary corporate action so that, at or immediately after the Effective Time
the Certificate of Incorporation of Paging Partners shall be as set forth in
Exhibit 4.18.
(k) Directors and Officers of Paging Partners and the Surviving
Corporation. All of the directors and officers of Paging Partners and Newco
immediately prior to the Effective Time shall have submitted their written
resignations effective as of the Effective Time. Prior to or at the Effective
Time, Paging Partners and Newco shall have taken or caused to be taken all
necessary corporate action so that, subject to Section 4.19 hereof, at or
immediately after the Effective Time, the directors and officers of Paging
Partners and the Surviving Corporation shall be as set forth in Exhibits 4.19,
1.6 and 1.7, respectively.
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(l) BAP Agreements. Paging Partners shall have assumed the
obligations of BAP under the BAP Employment Agreements and the Deerfield
Agreement on terms reasonably satisfactory to BAP.
(m) BAP Options. Prior to or at the Effective Time, Paging Partners
shall have taken or caused to be taken, all necessary corporate action so that,
at or immediately after the Effective Time, the BAP Options shall be "rolled
over" under the Paging Partners Option Plan on terms reasonably satisfactory to
BAP in accordance with Section 4.25 hereof.
(n) Paging Partners Indebtedness. At the Effective Time, the
outstanding indebtedness of Paging Partners under the Motorola Credit Agreement
shall not exceed $1,654,189.98.
(o) BAP Indebtedness. Paging Partners and Newco shall have taken or
caused to be taken all necessary action to authorize, approve and adopt the BAP
Debt Agreements and the transactions contemplated thereby.
(p) Paging Partners Employment Agreements. The Paging Partners
Employment Agreements shall have been amended as provided in Section 4.26
hereof.
(q) Paging Partners Options. None of the Paging Partners Options
shall have become subject to (i) any termination or cancellation requiring the
payment of any consideration or (ii) any adjustment in the exercise price
thereof (other than in connection with the Reverse Stock Split), in each case,
in connection with or as a result of the Merger or any other transaction
contemplated by this Agreement.
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ARTICLE VI
TERMINATION
6.1 Termination. This Agreement may be terminated and the Merger
contemplated hereby may be abandoned at any time, notwithstanding approval
thereof by the stockholders of Paging Partners and BAP, prior to the Effective
Time:
(a) By mutual written consent of BAP, Paging Partners and Newco; or
(b) By BAP or by Paging Partners and Newco, in either case, if
without fault of the terminating party the Effective Time shall not have
occurred on or before March 31, 1999, provided, however, that such date shall be
extended to account for any Extension Period that arises pursuant to Section 4.1
hereof (i.e., if the Extension Period is ten days, then the date in this clause
(b) shall be April 10, 1999); or
(c) By BAP or by Paging Partners and Newco, in either case, if a
court of competent jurisdiction or other governmental body shall have issued,
enacted, entered, promulgated or enforced an order, judgment, decree,
injunction, restraining order or ruling or taken any action restraining,
enjoining or otherwise prohibiting the Bell Atlantic Acquisition or the Merger
and such judgment, order, decree, injunction, restraining order, ruling or other
action shall have become final and unappealable; or
(d) By BAP or by Paging Partners and Newco, if Paging Partners'
Board of Directors shall have withdrawn, suspended, modified or amended in a
manner adverse to BAP its approval or recommendation of the Merger, this
Agreement or the Related Transactions or promulgates any recommendation with
respect to a Competing Transaction (other than a recommendation to reject such
Competing Transaction) or shall have resolved to do any of the foregoing; or
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(e) By BAP or by Paging Partners and Newco, if the approval by the
stockholders of Paging Partners of the Merger and the Related Transactions shall
not have been obtained by reason of the failure to obtain the required vote upon
a vote held at a duly held meeting of stockholders or at any adjournment thereof
or by reason of the failure to obtain the required consents of stockholders in
lieu of such a meeting; or
(f) By Paging Partners and Newco, if BAP shall have failed to comply
in any material respect with any of its material covenants or agreements
contained in this Agreement or if any representation or warranty of BAP made
herein fails to be true and complete in any material respect when given and at
any time thereafter, except for (i) changes permitted by this Agreement and (ii)
those representations and warranties that address matters only as of a
particular date (which shall remain true and complete when given and at any time
thereafter as of such date), provided, however, that if any such failure is
curable, notice of such failure shall have been given to BAP by Paging Partners
and Newco and BAP shall not have cured such failure within 30 days of notice
thereof and provided, further, that, except where such failure relied upon for
termination by Paging Partners is also a failure of BAP under the Bell Atlantic
Acquisition Agreement or a breach of any representation or warranty made by BAP
thereunder, Paging Partners shall not be in material breach of any of its
covenants, agreements or representations and warranties in this Agreement; or
(g) By BAP, if Paging Partners or Newco shall have failed to comply
in any material respect with any of its material covenants or agreements
contained in this Agreement or if any representation or warranty of Paging
Partners or Newco made herein fails to be true and complete in any material
respect when given and at any time thereafter, except for (i) changes permitted
by this Agreement and (ii) those representations and warranties that address
matters
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only as of a particular date (which shall remain true and complete when given
and at any time thereafter as of such date), provided, however, that if any such
failure is curable, notice of such failure shall have been given to Paging
Partners and Newco by BAP and Paging Partners and/or Newco shall not have cured
such failure within 30 days of notice thereof, and provided, further, that BAP
shall not be in material breach of any of its covenants, agreements or
representations and warranties in this Agreement.
6.2 Effect of Termination. In the event of the termination and abandonment
of this Agreement pursuant to Section 6.1, all further obligations of the
parties under this Agreement (other than (i) the provisions of this Section 6.2,
(ii) the provisions of Section 8.5, and (iii) the confidentiality and publicity
agreements contained in Section 4.5 and 4.11) shall forthwith be terminated
without any further liability of any party to the other parties, and the
payments provided in Section 8.5 hereof shall constitute liquidated damages and
shall provide the sole remedy upon the termination hereof.
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ARTICLE VII
DEFINITIONS
7.1 Defined Terms. As used herein the following terms shall have the
following meanings:
"Accounts Receivable" has the meaning assigned to such term in
Section 3.18 hereof.
"Adiletta Employment Agreement" has the meaning assigned to such
term in Section 2.5 hereof.
"Adiletta Note" has the meaning assigned to such term in Section
2.11 hereof.
"Adiletta Option Agreement" has the meaning assigned to such term in
Section 4.3 hereof.
"Affiliate" means as to any Person, another Person that controls, is
controlled by or is under common control with, such Person.
"Agreement" has the meaning assigned to such term in the
introduction hereof.
"Audited 1997 Financials" has the meaning assigned to such term in
Section 3.9 hereof.
"Authorizations" has the meaning assigned to such term in Section
3.12 hereof.
"BAP" means BAP Acquisition Corp., a Delaware corporation.
"BAP Common Stock" has the meaning assigned to such term in Section
1.8 hereof.
"BAP Credit Agreement" has the meaning assigned to such term in
Section 2.3 hereof.
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"BAP Debt Agreements" has the meaning assigned to such term in
Section 2.3 hereof.
"BAP Disclosure Schedule" has the meaning assigned to such term in
Section 2.2 hereof.
"BAP Employment Agreements" has the meaning assigned to such term in
Section 4.3 hereof.
"BAP Option Agreements" has the meaning assigned to such term in
Section 4.3 hereof.
"BAP Option Plan" has the meaning assigned to such term in Section
2.4 hereof.
"BAP Options" has the meaning assigned to such term in Section 2.4
hereof.
"BAP Paging Business" has the meaning assigned to such term in
Section 2.5 hereof.
"BAP Preferred Stock" has the meaning assigned to such term in
Section 1.14 hereof.
"BAP Stock Purchase Agreement" has the meaning assigned to such term
in Section 2.5 hereof.
"BAPCO" means Bell Atlantic Paging, Inc., a Delaware corporation.
"Bell Atlantic Acquisition" has the meaning assigned to such term in
the Recitals hereof.
"Bell Atlantic Acquisition Agreement" has the meaning assigned to
such term in the Recitals hereof.
"Bell Atlantic Confidentiality Provisions" has the meaning assigned
to such term in Section 4.1 hereof.
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"Bell Atlantic Consent" means the letter agreement, dated as of
November 3, 1998, between BAP and the Bell Atlantic Subsidiaries.
"Bell Atlantic Note" has the meaning assigned to such term in
Section 2.3 hereof.
"Bell Atlantic Paging Business" has the meaning assigned to such
term in the Recitals hereof.
"Bell Atlantic Representations and Warranties" has the meaning
assigned to such term in Section 2.7 hereof.
"Bell Atlantic Subsidiaries" means BAPCO and the OTC's,
collectively.
"Cause" has the meaning assigned to such term in Section 4.21
hereof.
"Certificate" has the meaning assigned to such term in Section 1.9
hereof.
"Certificate of Merger" has the meaning assigned to such term in
Section 1.3 hereof.
"Closing" has the meaning assigned to such term in Section 1.12
hereof.
"Code" means the Internal Revenue Code of 1986, as amended,
including, when appropriate, the statutory predecessor of the Code, and all
applicable regulations under the Code and the statutory predecessor of the code,
and any official published ruling and judicial determinations under the
foregoing.
"Communications Act" means the Communications Act of 1934, as
amended.
"Competing Transaction" has the meaning assigned to such term in
Section 4.6 hereof.
"Contingent Obligation" means any obligation of any Person
guaranteeing or otherwise becoming responsible for, in any manner whatsoever,
whether directly or indirectly, any indebtedness, lease, dividend or other
obligation of any other Person, whether or not contingent;
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provided, however, that the term "Contingent Obligation" shall not include
endorsements of instruments for deposit or collection in the ordinary course of
business.
"Conversion Number" has the meaning assigned to such term in Section
1.8 hereof.
"DGCL" has the meaning assigned to such term in Section 1.1 hereof.
"Deerfield" means Deerfield Partners LLC, a Delaware limited
liability company.
"Deerfield Agreement" has the meaning assigned to such term in
Section 2.5 hereof.
"Dissenting Shares" has the meaning assigned to such term in Section
1.9 hereof.
"Effective Time" has the meaning assigned to such term in Section
1.3 hereof.
"Environmental Laws" means the Resource Conservation and Recovery
Act, the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended by the Superfund Amendments and Reauthorization Act of 1986,
the federal Water Pollution Control Act, the Toxic Substances Control Act and
all other federal, state and local Laws relating to pollution, hazardous
substances, health, safety and/or the environment.
"Equipment" has the meaning assigned to such term in Section 3.14
hereof.
"Equity Participants" has the meaning assigned to such term in
Section 2.8 hereof.
"Equity Sponsor Agreement" has the meaning assigned to such term in
Section 2.4 hereof.
"ERISA" has the meaning assigned to such term in Section 3.33
hereof.
"Escrow Account" has the meaning assigned to such term in Section
8.5 hereof.
"Escrow Agent" means Solovay Edlin & Eiseman, P. C., as escrow agent
under the Escrow Agreement.
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"Escrow Agreement" means the agreement, dated as of the date hereof,
among BAP, Paging Partners, and the Escrow Agent, as such agreement may be
amended or modified from time to time.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Agent" has the meaning assigned to such term in Section
1.10 hereof.
"Extension Period" has the meaning assigned to such term in Section
4.1 hereof.
"FCC" has the meaning assigned to such term in Section 3.13 hereof.
"FCC Licenses" has the meaning assigned to such term in Section 3.13
hereof.
"Fill-in Transmitters" has the meaning assigned to such term in
Section 3.13 hereof.
"Final Order" means that forty (40) days shall have elapsed from the
date of grant of FCC consent to the transfers of control and/or assignments
contemplated by the relevant applications or requests submitted to the FCC
without the filing of any adverse request, petition or appeal by any party or
third party or by the FCC on its own motion with respect to such consents, or
any resubmissions of any applications or requests for such consents, or, if
challenged, that such FCC consents shall have been reaffirmed or upheld and the
applicable period for seeking further administrative or judicial review shall
have expired without the filing of any action, petition or request for further
review.
"Financing" shall have the meaning assigned to such term in Section
2.3 hereof.
"Finova" has the meaning assigned to such term in Section 2.3
hereof.
"GAAP" means generally accepted accounting principles in effect in
the United States of America from time to time, applied on a consistent basis.
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"Governmental Authority" means any nation or government, any state
or other political subdivision thereof, and any entity or official exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Hazardous Substances" has the meaning assigned to such term in
CERCLA.
"Indemnification Period" has the meaning assigned to such term in
Section 4.16 hereof.
"Indemnitee" means a party entitled to indemnification under Section
4.16 hereof.
"Independent Counsel" has the meaning assigned to such term in
Section 4.16 hereof.
"Insurance Policies" has the meaning assigned to such term in
Section 3.28 hereof.
"Intangible Property" has the meaning assigned to such term in
Section 3.27 hereof.
"Interested Person" has the meaning assigned to such term in Section
3.30 hereof.
"Investment Letter" has the meaning assigned to such term in Section
4.24 hereof.
"June 10-Q" has the meaning assigned to such term in Section 3.8
hereof.
"Laws" has the meaning assigned to such term in Section 3.12 hereof.
"Lien" means any mortgage, lien, pledge, security interest,
conditional sale or other title retention agreement, charge or other security
interest or encumbrance of any kind.
"March 10-Q" has the meaning assigned to such term in Section 3.8
hereof.
"Material Adverse Effect" has the meaning assigned to such term in
Section 2.10 hereof.
"Material Contracts" has the meaning assigned to such term in
Section 3.26 hereof.
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"Merger" has the meaning assigned to such term in the recitals
hereto.
"Merger Consideration" has the meaning assigned to such term in
Section 1.8 hereof.
"Motorola" means Motorola, Inc., a Delaware corporation.
"Motorola Credit Agreement" has the meaning specified in Section 3.2
hereof.
"Motorola Default" has the meaning assigned to such term in Section
3.26 hereof.
"Motorola Lien" has the meaning specified in Section 3.2 hereof.
"Motorola Loan" has the meaning specified in Section 3.8 hereof.
"Motorola Warrants" has the meaning assigned to such term in Section
3.4 hereof.
"Newco" means Paging Partners Merger Corporation, a Delaware
corporation and a wholly owned subsidiary of Paging Partners.
"Newco Common Stock" has the meaning assigned to such term in
Section 1.8 hereof.
"Officers' Certificate" means a certificate executed on behalf of
BAP or Paging Partners, as applicable, by its President or by one of its Vice
Presidents, and by its Treasurer, Secretary or by one of its Assistant
Secretaries.
"Orders" has the meaning assigned to such term in Section 3.10
hereof.
"OTC's" shall mean Bell Atlantic-Delaware, Inc., a Delaware
corporation ("BA-DE'), Bell Atlantic-Maryland, Inc., a Maryland corporation
("BA-MD"), Bell Atlantic New Jersey, Inc., a New Jersey corporation ("BA-NJ"),
Bell Atlantic-Pennsylvania, Inc., a Pennsylvania corporation ("BA-PA"), Bell
Atlantic-Virginia, Inc. a Virginia corporation ("BA-VA"), Bell
Atlantic-Washington, D.C., Inc. a New York corporation ("BA-DC"), and Bell
Atlantic-West Virginia, Inc., a West Virginia corporation ("BA-WV"),
collectively.
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"Pagers" means Paging Partners' inventory of pagers including (i)
all pagers held by Paging Partners for the purpose of resale or leasing to
customers, (ii) all pagers under lease by Paging Partners to customers, and
(iii) all pagers formerly under lease by Paging Partners to customers, that have
been disconnected but have not yet been picked up by or returned to Paging
Partners.
"Paging Partners" means Paging Partners Corporation, a Delaware
corporation.
"Paging Partners Benefit Plan" has the meaning assigned in Section
3.33 hereof.
"Paging Partners Common Stock" has the meaning assigned to such term
in Section 1.8 hereof.
"Paging Partners Disclosure Schedule" has the meaning assigned to
such term in Section 3.2 hereof.
"Paging Partners Employment Agreements" has the meaning assigned to
such term in Section 4.26 hereof.
"Paging Partners Financial Statements" has the meaning assigned in
Section 3.9.
"Paging Partners Frequencies" means the frequencies set forth in
Exhibit 7.1 hereto.
"Paging Partners Option Plan" has the meaning assigned to such term
in Section 3.4 hereof.
"Paging Partners Options" has the meaning assigned to such term in
Section 3.4 hereof.
"Paging Partners Preferred Stock" has the meaning assigned to such
term in Section 3.4 hereof.
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"Paging Partners Proxy Statement" means the proxy statement to be
furnished to the holders of Paging Partners Common Stock, in each case together
with any amendments or supplements thereto.
"Paging Partners Warrant Agreement" has the meaning assigned to such
term in Section 3.4 hereof.
"Paging Partners Warrants" has the meaning assigned to such term in
Section 3.4 hereof.
"Permitted Lien" means (i) Liens for taxes, assessments or other
governmental charges or levies not yet due or payable under law or being
contested in good faith by appropriate proceedings, (ii) landlords', carriers',
vendors', warehousemen's, mechanics', materialmen's, repairmen's or other like
Liens arising by operation of law in the ordinary course of business and with
respect to amounts not overdue for a period of more than 90 days or being
contested in good faith by appropriate proceedings, (iii) pledges or deposits in
connection with workers' compensation, unemployment insurance and other social
security legislation; (iv) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds, performance
bonds and other obligations of like nature, in each case, incurred in the
ordinary course of business, (vi) easements, rights-of-way, restrictions and
other similar encumbrances, (vii) Liens securing capitalized lease obligations
and purchase money obligations permitted under the commitment letter for the BAP
Credit Agreement referred to in Section 2.8 hereof or under the form of Seller
Note attached as Exhibit B to the Bell Atlantic Acquisition Agreement (as
amended by the Bell Atlantic Consent), each as in effect on the date hereof, or
(viii) any extension, renewal or refunding of any Lien referred to in the
foregoing clause (vii).
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"Person" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity, of whatever
nature.
"Plunkett Employment Agreement" has the meaning assigned to such
term in Section 4.3 hereof.
"Plunkett Option Agreement" has the meaning assigned to such term in
Section 4.3 hereof.
"Post-Closing Deposit" has the meaning assigned to such term in
Section 8.5 hereof.
"Post-Closing Escrow Fund" has the meaning assigned to such term in
Section 8.5 hereof.
"Pre-Closing Deposit" has the meaning assigned to such term in
Section 8.5 hereof.
"Pre-Closing Escrow Fund" has the meaning assigned to such term in
Section 8.5 hereof.
"Proceedings" has the meaning assigned to such term in Section 3.10
hereof.
"Public Warrants" has the meaning assigned to such term in Section
3.4 hereof.
"Registration Rights Agreement" has the meaning assigned to such
term in Section 1.12 hereof.
"Related Transactions" has the meaning assigned to such term in
Section 4.9 hereof.
"Remaining Pre-Closing Funds" has the meaning assigned to such term
in Section 8.5 hereof.
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"Retail Office Leases" has the meaning assigned to such term in
Section 3.21 hereof.
"Reverse Stock Split" has the meaning assigned to such term in
Section 4.9 hereof.
"Rollover Options" has the meaning assigned to such term in Section
4.25 hereof.
"Second Quarter Financials" has the meaning assigned to such term in
Section 3.9 hereof.
"SEC" means the Securities and Exchange Commission.
"SEC Filing" means each and all of the forms, reports or statements
filed by Paging Partners with the SEC, pursuant to the requirements of (i)
Section 13 or 14 of the Exchange Act or (ii) the Securities Act, on or after
July 1, 1992, including all exhibits, amendments and supplements thereto.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated by the SEC from time to time thereunder.
"Senior Officers" of Paging Partners or Newco has the meaning set
forth in Section 3.10 hereof.
"Significant Stockholder" has the meaning assigned to such term in
Section 3.30 hereof.
"Site Leases" has the meaning assigned to such term in Section 3.16
hereof.
"Subsidiary" means, as to any Person, a corporation of which more
than 50% of the outstanding capital stock having full voting power is at the
time directly or indirectly owned or controlled by such Person.
"Surviving Corporation" has the meaning assigned to such term in
Section 1.1 hereof.
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"Taxes" means all taxes, charges, fees, levies or other assessments
of whatever kind or nature, including without limitation all net income, gross
income, gross receipts, premium, sales, use, ad valorem, transfer, franchise,
profits, license, withholding, payroll, employment, excise, estimated,
severance, stamp, occupancy or property taxes, custom duties, fees, assessments
or charges of any kind whatever (together with any interest, penalty or addition
to tax) imposed by any Governmental Authority (foreign or domestic).
"Transaction Documents" means this Agreement, the Voting Agreement,
the Registration Rights Agreement, the Escrow Agreement, the Bell Atlantic
Acquisition Agreement, the Certificate of Merger and all other agreements,
certificates and instruments executed and delivered in connection with the
transactions contemplated by this Agreement, in each case, as originally
executed and as amended from time to time.
"Transmitter Facilities" has the meaning assigned to such term in
Section 3.13 hereof.
"Unit Purchase Option" has the meaning assigned to such term in
Section 3.4 hereof.
"Units" has the meaning assigned to such term in Section 3.4 hereof.
"Voting Agreement" has the meaning assigned to such term in the
recitals hereto.
"1997 Balance Sheet" has the meaning assigned to such term in
Section 3.8 hereof.
"1997 10-K" has the meaning assigned to such term in Section 3.8
hereof.
7.2 Other Definitional Provisions.
(a) All terms defined in this Agreement shall have the defined
meanings when used in any certificate, report or other document made or
delivered pursuant hereto or thereto, unless the context otherwise requires.
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(b) Terms defined in the singular shall have a comparable meaning
when used in the plural, and vice versa.
(c) all matters of an accounting nature in connection with this
Agreement and the transactions contemplated hereby shall be determined in
accordance with GAAP.
(d) As used herein, the neuter gender shall also denote the
masculine and feminine, and the masculine gender shall also denote the neuter
and feminine, where the context so permits.
(e) The words "hereof", "herein" and "hereunder", and words of
similar import, when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement.
ARTICLE VIII
MISCELLANEOUS
8.1 Survival of Representations, Warranties, Covenants and Agreements. The
respective representations, warranties, covenants and agreements of the parties
hereto shall not survive the Effective Time. Notwithstanding the foregoing, this
Section 8.1 shall not limit any covenant or agreement of the parties hereto that
by its terms contemplates performance after the Effective Time, including
without limitation, Sections 1.9, 1.10, 1.11, 4.16, 4.17, 4.21 and 4.25 hereof.
8.2 Amendment and Modification. Subject to applicable law, this Agreement
may be amended, modified or supplemented only by written agreement of Paging
Partners, Newco and BAP at any time prior to the Effective Time with respect to
any of the terms herein, provided that, after approval of the Merger by the
stockholders of Paging Partners, no amendment shall be made after approval of
the Merger by the stockholder of Paging Partners that increases or
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changes the form of the Merger Consideration or otherwise adversely affects the
stockholders of Paging Partners without further stockholder approval.
8.3 Waiver of Compliance; Consents. Except insofar as any provision of
this Agreement is non-waivable by its terms or as a matter of law, any failure
of Paging Partners or Newco, on the one hand, or BAP, on the other hand, to
comply with any obligation, covenant, agreement, or condition herein may be
waived by Paging Partners or BAP, respectively, but such waiver or failure to
insist upon strict compliance with such obligation, covenant, agreement, or
condition shall not operate as a waiver of, or estoppel with respect to, any
subsequent or other failure. Whenever this Agreement requires or permits consent
by or on behalf of any party hereto, such consent shall be given in writing in a
manner consistent with the requirements for a waiver of compliance as set forth
in this Section 8.3.
8.4 Enforceability. If any term or provision of this Agreement, or the
application thereof to any Person or circumstance shall, to any extent, be
invalid or unenforceable, the remaining terms and provisions of this Agreement
or the application thereof to other Persons and circumstances shall not be
invalidated thereby, and such remaining terms and provisions hereof shall remain
in full force and effect and shall be construed to effect the intent of the
parties hereto to the fullest extent permitted by law.
8.5 Fees and Expenses.
(a) On the date hereof, BAP is depositing $1,000,000 (excluding any
interest earned thereon, the "Pre-Closing Deposit") into an interest bearing
escrow account in the name of the Escrow Agent (the "Escrow Account") in
accordance with the terms of the Escrow Agreement, a copy of which is attached
hereto as Exhibit 8.5. The Pre-Closing Deposit, together with all interest and
income thereon and other proceeds thereof, is hereinafter referred to as the
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"Pre-Closing Escrow Fund"). If this Agreement is terminated prior to both the
closing of the Bell Atlantic Acquisition and the Effective Time pursuant to:
(i) Section 6.1(a) hereof, then the Pre-Closing Escrow Fund
shall be returned to BAP, and the parties agree that (A) if the Bell
Atlantic Acquisition Agreement is terminated other than as a result
of a failure or breach by BAP, (B) if the FCC or any state
regulatory authority does not approve the transfer of control
applications in connection with the Bell Atlantic Acquisition or the
Merger or (C) if the Extension Period is terminated in accordance
with Section 4.1(b) hereof, then the parties will consent to a
termination of this Agreement pursuant to Section 6.1(a); or
(ii) Section 6.1(b) hereof, then the Pre-Closing Escrow Fund
shall be returned to BAP;
(iii) Section 6.1(c) hereof, then the Pre-Closing Escrow Fund
shall be returned to BAP;
(iv) Section 6.1(d) hereof, then (A) the Pre-Closing Escrow
Fund shall be returned to BAP, (B) Paging Partners shall pay BAP
$1,000,000 and (C) upon the closing of any Competing Transaction
that occurs within one year from the date of termination of this
Agreement, Paging Partners shall pay BAP an additional $1,000,000;
(v) Section 6.1(e) hereof, then (A) the Pre-Closing Escrow
Fund shall be returned to BAP and (B) Paging Partners shall pay BAP
$1,000,000;
(vi) Section 6.1(f) hereof, then the Pre-Closing Deposit shall
be released to Paging Partners, and the remaining portion of the
Pre-Closing Escrow Fund
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shall be returned to BAP; provided, however, that the Pre-Closing
Escrow Fund shall be returned to BAP if the failure relied upon for
termination by Paging Partners is also a failure of the Bell
Atlantic Subsidiaries under the Bell Atlantic Acquisition Agreement
or a breach of any representation or warranty made by the Bell
Atlantic Subsidiaries thereunder; or
(vii) Section 6.1(g) hereof, then (A) the Pre-Closing Escrow
Fund shall be returned to BAP and (B) if the failure relied upon by
BAP for such termination occurred as a result of an intentional act
by Paging Partners or an intentional failure to act by Paging
Partners, Paging Partners shall pay BAP $1,000,000.
(b) Notwithstanding anything to the contrary in this Agreement or
the Escrow Agreement, if BAP certifies to Paging Partners and the Escrow Agent
that the Bell Atlantic Acquisition will close prior to the Effective Time of the
Merger, the Escrow Agent shall deliver the Pre-Closing Deposit by certified
check of immediately available funds, or such other manner of delivery as the
parties may agree, to the Bell Atlantic Subsidiaries at the closing of the Bell
Atlantic Acquisition, and the Escrow Agent shall continue to hold any remaining
portion of the Pre-Closing Escrow Fund (the "Remaining Pre-Closing Funds") in
the Escrow Account. If for any reason, after the Escrow Agent has so delivered
the Pre-Closing Deposit, the closing of the Bell Atlantic Acquisition does not
occur, the Pre-Closing Deposit shall be returned in its entirety to the Escrow
Agent, who shall hold it in the Escrow Account pursuant to the terms of the
Escrow Agreement. Immediately after the closing of the Bell Atlantic
Acquisition, BAP shall deposit $250,000 (excluding any interest earned thereon,
the "Post-Closing Deposit") into the Escrow Account in accordance with the terms
of the Escrow Agreement. The Remaining Pre-Closing Funds and the Post-Closing
Deposit, together with (i) all interest and income on the
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Remaining Pre-Closing Funds and the Post-Closing Deposit and (ii) all other
proceeds of the Remaining Pre-Closing Funds and the Post-Closing Deposit, are
hereinafter referred to as the "Post-Closing Escrow Fund." If this Agreement is
terminated after the closing of the Bell Atlantic Acquisition but prior to the
Effective Time pursuant to:
(i) Section 6.1(a) hereof, then the Post-Closing Escrow Fund
shall be returned to BAP, and the parties agree that (A) if the Bell
Atlantic Acquisition Agreement is terminated other than as a result
of a failure or breach by BAP, (B) if the FCC or any state
regulatory authority does not approve the transfer of control
applications in connection with the Bell Atlantic Acquisition or the
Merger or (C) if the Extension Period is terminated in accordance
with Section 4.1(b) hereof, then the parties will consent to a
termination of this Agreement pursuant to Section 6.1(a); or
(ii) Section 6.1(b) hereof, then the Post-Closing Escrow Fund
shall be returned to BAP;
(iii) Section 6.1(c) hereof, then the Post-Closing Escrow Fund
shall be returned to BAP;
(iv) Section 6.1(d) hereof, then (A) the Post-Escrow Fund
shall be returned to BAP, (B) Paging Partners shall pay BAP
$1,000,000 and (C) upon the closing of any Competing Transaction
that occurs within one year from the date of termination of this
Agreement, Paging Partners shall pay BAP an additional $1,000,000;
(v) Section 6.1(e) hereof, then (A) the Post-Closing Escrow
Fund shall be returned to BAP and (B) Paging Partners shall pay BAP
$1,000,000;
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(vi) Section 6.1(f) hereof, then the Post-Closing Escrow Fund
shall be released to Paging Partners, and BAP shall promptly pay to
Paging Partners the difference between $1,000,000 and the amount of
the Post-Closing Escrow Fund; provided, however, that the
Post-Closing Escrow Fund shall be returned to BAP if the failure
relied upon for termination by Paging Partners is also a failure of
the Bell Atlantic Subsidiaries under the Bell Atlantic Acquisition
Agreement or a breach of any representation or warranty made by the
Bell Atlantic Subsidiaries thereunder; or
(vii) Section 6.1(g) hereof, then (A) the Post-Closing Escrow
Fund shall be returned to BAP and (B) if the failure relied upon by
BAP for such termination occurred as a result of an intentional act
by Paging Partners or an intentional failure to act by Paging
Partners, Paging Partners shall pay BAP $1,000,000.
(d) Except as set forth in this Section 8.5, all costs and expenses
incurred in connection with this Agreement and the transactions contemplated
hereby shall be paid by the party incurring such expenses.
(e) Each of Paging Partners and BAP hereby acknowledges and agrees
that the arrangements set forth in this Section 8.5 represent their good faith
attempt, to reach, in advance, a fair resolution of their competing interests,
to avoid the complications, risks and expenses likely to be associated with any
need to establish or prove the presence or absence of actual damages in the
event of the termination of this Agreement, and to determine appropriate
compensation that is not expected by either Paging Partners or BAP to be
punitive in effect or to produce a windfall to either Paging Partners or BAP.
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8.6 Parties in Interest. This Agreement shall be binding upon and inure
solely to the benefit of each party hereto, and nothing in this Agreement,
express or implied shall confer upon any other person any rights or remedies of
any nature whatsoever under or by reason of this Agreement, except that the
provisions of Sections 4.16, 4.17, 4.21 and 4.25 hereof shall inure to the
benefit of those persons covered by such Sections.
8.7 Successors and Assigns. Neither this Agreement nor the rights,
interests and obligations of the parties hereto shall be assigned by any of such
parties, by operation of law or otherwise, nor shall any such purported
assignment have any effect for purposes of this Agreement.
8.8 Communications Act. Nothing in this Agreement is intended or shall be
construed to diminish or affect the control of BAP or of Paging Partners over
any FCC Licenses held by any of them in any manner prohibited by the
Communications Act of 1934, as amended, or the rules and regulations issued by
the FCC.
8.9 Specific Performance. The parties hereto agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with its specific terms or were otherwise breached. It
is agreed accordingly that the parties hereto shall be entitled to an injunction
or injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof in any court of the United States or any state
thereof having jurisdiction, this being in addition to any other remedy to which
they are entitled at law or in equity, and each party acknowledges that neither
party shall be required to allege or to prove the inadequacy of money damages as
a remedy to seek any appropriate form of equitable relief or remedy.
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8.10 Notices. Except as otherwise specifically provided in this Agreement,
all communication hereunder shall be in writing (including telegraphic
communication) and shall be sent by first-class mail, telegraph, facsimile or
overnight courier or delivered in person:
to:
BAP Acquisition Corp.
42 Timber Rock Trail
Bernardsville, NJ 07924
Attention: John X. Adiletta
with a copy to:
Choate, Hall & Stewart
Exchange Place
53 State Street
Boston, Massachusetts 02109
Attention: William P. Gelnaw, Jr., Esq.
and to Paging Partners and Newco at:
Paging Partners Corporation
4249 Route 9 North
Building 2
Freehold, NJ 07728
Fax: (732) 409-7366
Attention: Leonard Fink
with a copy to:
Solovay Edlin & Eiseman, P. C.
845 Third Avenue
8th Floor
New York, New York 10022
Fax: (212) 355-4608
Attention: Michael B. Solovay, Esq.
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or to such other addresses as BAP, Paging Partners or Newco may designate by
notice in writing. Notices shall be deemed to have been given when received.
8.11 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to the conflict
of laws rules thereof.
8.12 Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when so executed and delivered, shall constitute an
original but all of which shall constitute one and the same agreement.
8.13 Headings. The article and section headings in this Agreement are
solely for the purpose of reference, are not part of the agreement of the
parties, and shall not effect in any way the meaning or interpretation of this
Agreement.
8.14 Entire Agreement. This Agreement, including the exhibits and
schedules hereto and the documents and instruments referred to herein, embodies
the entire agreement between the parties hereto in respect of the subject matter
hereof. There are no agreements, restrictions, promises, representations,
warranties, covenants or undertakings, other than those expressly set forth or
referred to herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
8.15 Schedules. the parties agree that Paging Partners shall deliver
Schedules 3.14 and 3.24 of the Paging Partners Disclosure Schedule prior to the
Effective Time.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed and delivered on its behalf by one of its duly authorized
officers, all as of the day and year first above written.
BAP ACQUISITION CORP.
By: /s/ John X. Adiletta
-------------------------------
Name: John X. Adiletta
Title: President
PAGING PARTNERS CORPORATION
By: /s/ Richard J. Giacchi
-------------------------------
Name: Richard J. Giacchi
Title: President
PAGING PARTNERS MERGER CORPORATION
By: /s/ Leonard Fink
-------------------------------
Name: Leonard Fink
Title: President
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