EXHIBIT 2.1
MERGER AGREEMENT
Among
INTELSAT (BERMUDA), LTD.,
PROTON ACQUISITION CORPORATION, and
PANAMSAT HOLDING CORPORATION,
Dated as of August 28, 2005
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TABLE OF CONTENTS
ARTICLE I
The
Merger...................................................................1
1.1. The
Merger.............................................................1
1.2. Closing
Date...........................................................1
1.3. Effective
Time.........................................................2
1.4. Certificate of
Incorporation...........................................2
1.5.
Bylaws.................................................................2
1.6. Directors and
Officers.................................................2
1.7. Conversion of
Securities...............................................2
1.8. Surrender of
Certificates..............................................3
1.9. No Further Ownership Rights in
Company Common Stock....................4
1.10. Lost, Stolen or Destroyed
Certificates.................................5
1.11. Dissenting
Shares......................................................5
1.12.
Withdrawal.............................................................5
1.13. Notice of
Dissenters...................................................5
1.14. Withholding
Taxes......................................................5
1.15. Transfer of
Ownership..................................................6
1.16. Further
Action.........................................................6
1.17. Company Equity
Awards..................................................6
ARTICLE II
Representations and Warranties of the
Company................................7
2.1. Organization; Subsidiaries;
Charter Documents..........................7
2.2. Capitalization of the
Company..........................................8
2.3. Corporate Authorization; Board
Approval...............................10
2.4. Governmental
Approvals................................................10
2.5.
Non-Contravention.....................................................11
2.6. Company SEC
Documents.................................................11
2.7. Financial Statements; No
Undisclosed Liabilities;
Internal
and Disclosure Controls......................................12
2.8. Information in Offer
Documents........................................13
2.9. Absence of Certain
Changes............................................13
2.10.
Insurance.............................................................14
2.11. Real Property; Title to
Assets........................................14
2.12. Company Intellectual
Property.........................................15
2.13.
Litigation............................................................15
2.14.
Taxes.................................................................16
2.15. Employee Benefit Plans;
ERISA.........................................17
2.16. Compliance with Laws;
Permits.........................................19
2.17. Company
Satellites....................................................19
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2.18. Environmental
Matters.................................................20
2.19. Company Material
Contracts............................................20
2.20. Finders'
Fees.........................................................21
2.21. Opinion of Financial
Advisor..........................................21
2.22. Takeover
Statutes.....................................................21
2.23. Transactions with
Affiliates..........................................21
2.24. Labor
Matters.........................................................21
2.25. Limitation on
Warranties..............................................21
ARTICLE III
Representations and Warranties of Parent
and Merger Sub.....................22
3.1. Organization and Power;
Subsidiaries..................................22
3.2. Corporate
Authorization...............................................22
3.3. Governmental
Authorization............................................22
3.4.
Non-Contravention.....................................................23
3.5. Information
Supplied..................................................23
3.6.
Litigation............................................................23
3.7.
Financing.............................................................24
3.8. Condition of the Business;
Independent Investigation..................24
3.9. Qualifications to Hold
Communications Licenses........................25
ARTICLE IV
Covenants...................................................................25
4.1. Conduct of the
Company................................................25
4.2. Conduct of
Parent.....................................................29
4.3. Debt Offer Documents, Proxy
Statement; SEC Documents;
Company
Financial
Statements..........................................30
4.4. Company Stockholders'
Meeting.........................................31
4.5. Confidentiality; Access to
Information................................32
4.6. No
Solicitation.......................................................33
4.7. Commercially Reasonable
Efforts.......................................36
4.8. Regulatory
Matters....................................................36
4.9. Approach to
Proceedings...............................................38
4.10. Public
Announcements..................................................39
4.11. Director and Officer
Liability........................................39
4.12. Employee
Benefits.....................................................40
4.13. Cooperation with Financing and Debt
Registrations.....................42
4.14. Merger
Sub............................................................43
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ARTICLE V
Conditions to the
Merger....................................................43
5.1. Conditions to the Obligations of
the Parties..........................43
5.2. Conditions to the Obligations of
the Company..........................44
5.3. Conditions to the Obligations of
Parent and Merger Sub................44
ARTICLE VI
Termination.................................................................46
6.1.
Termination...........................................................46
6.2. Notice of Termination; Effect of
Termination..........................48
6.3. Expenses; Termination
Fees............................................49
ARTICLE VII
Miscellaneous...............................................................50
7.1. Certain
Definitions...................................................51
7.2.
Notices...............................................................58
7.3. Entire Agreement; Third Party
Beneficiaries...........................59
7.4. Non-Survival of Representations
and Warranties........................59
7.5. Amendments; No
Waivers................................................60
7.6. Successors and
Assigns................................................60
7.7. Governing
Law.........................................................60
7.8. Exclusive
Jurisdiction................................................60
7.9. Counterparts;
Effectiveness...........................................60
7.10.
Interpretation........................................................60
7.11. Disclosure
Schedules..................................................61
7.12.
Severability..........................................................61
7.13. Specific
Performance..................................................61
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MERGER AGREEMENT
MERGER AGREEMENT (this "AGREEMENT"), dated as of August 28,
2005,
among PanAmSat Holding Corporation, a
Delaware corporation (the "COMPANY"),
Intelsat (Bermuda), Ltd., a Bermuda company
("PARENT"), and Proton Acquisition
Corporation, a Delaware corporation and a
wholly-owned subsidiary of Parent
("MERGER SUB").
Recitals
WHEREAS, Constellation, LLC, Carlyle Panamsat I, LLC, Carlyle
Panamsat
II, LLC, PEP PAS, L.L.C., PEOP PAS, L.L.C.
(collectively, the "STOCKHOLDERS")
beneficially own an aggregate of 71,315,359
shares of Company Common Stock,
which constitute approximately 58% of the
outstanding capital stock of the
Company as of the date hereof;
WHEREAS, the respective Board of Directors of Parent, Merger Sub
and
the Company have approved, and deem it
advisable to consummate, the merger of
Merger Sub with and into the Company, with
the Company surviving as the
Surviving Corporation, on the terms and
conditions set forth herein;
WHEREAS, as a condition and an inducement to the willingness of
Parent and Merger Sub to enter into this
Agreement, the Stockholders have
concurrently herewith entered into that
certain Voting Agreement with Parent in
substantially the form attached hereto as
Exhibit A; and
WHEREAS, Parent, Merger Sub and the Company desire to make
certain
representations, warranties, covenants and
agreements in connection with the
Merger (as hereinafter defined).
NOW, THEREFORE, in consideration of the premises and the
respective
representations, warranties, covenants and
agreements set forth herein, and,
intending to be legally bound hereby, the
parties hereto agree as follows:
ARTICLE I
The Merger
1.1. THE MERGER. Upon the terms and subject to the conditions
set
forth in this Agreement, at the Effective
Time, Merger Sub shall be merged (the
"MERGER") with and into the Company in
accordance with the General Corporation
Law of the State of Delaware, as amended
(the "DGCL"), whereupon the separate
existence of Merger Sub shall cease, and
the Company shall continue as the
surviving corporation (the "SURVIVING
CORPORATION").
1.2. CLOSING DATE. Upon the terms and subject to the conditions
set
forth in this Agreement, the closing of the
Merger (the "CLOSING") shall take
place at 10:00 a.m. on a date (the "CLOSING
DATE"), which shall be the date
after satisfaction or waiver of the
conditions set forth in Article V other than
those conditions that by their nature are
to be satisfied by actions taken at
the Closing, but subject to the fulfillment
or waiver of those conditions, that
is the earlier of (a) a date during the
Marketing Period to be specified by
Parent on no less than three Business
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Days' notice to the Company and (b) the
final day of the Marketing Period, at
the offices of Wachtell, Lipton, Rosen
& Katz, 51 West 52nd Street, New York,
New York 10019, or at such other time, date
or place as agreed to in writing by
the parties hereto.
1.3. EFFECTIVE TIME. Upon the Closing, the Company and Merger Sub
will
file a certificate of merger (the
"CERTIFICATE OF MERGER") with the Secretary of
State of the State of Delaware as executed
in accordance with the relevant
provisions of the DGCL. The Merger shall
become effective at such time as the
Certificate of Merger is duly filed with
the Secretary of State of the State of
Delaware or at such later time as is agreed
by Parent and the Company and
specified in the Certificate of Merger (the
"EFFECTIVE TIME"). The Merger shall
have the effects set forth in the DGCL.
Without limiting the generality of the
foregoing, and subject thereto, at the
Effective Time, all the properties,
rights, privileges, powers and franchises
of the Company and Merger Sub shall
vest in the Surviving Corporation, and all
debts, liabilities and duties of the
Company and Merger Sub shall become the
debts, liabilities and duties of the
Surviving Corporation.
1.4. CERTIFICATE OF INCORPORATION. The certificate of incorporation
of
the Company as in effect immediately prior
to the Effective Time shall be
amended to read in its entirety in the same
fashion as the certificate of
incorporation of Merger Sub, other than the
incorporator of Merger Sub, the
exculpation and indemnification provisions
(which shall remain unchanged), and
corporate name (which shall remain PanAmSat
Holding Corporation), and, as so
amended, shall be the certificate of
incorporation of the Surviving Corporation.
1.5. BYLAWS. The bylaws of the Company in effect at the Effective
Time
shall be amended to read in their entirety
in the same fashion as the bylaws of
Merger Sub, other than references to the
corporate name of the Company (which
shall remain PanAmSat Holding Corporation),
and, as so amended shall be the
bylaws of the Surviving Corporation until
amended in accordance with applicable
law.
1.6. DIRECTORS AND OFFICERS. From and after the Effective Time,
until
successors are duly elected or appointed
and qualified in accordance with the
DGCL and the certificate of incorporation
and bylaws of the Surviving
Corporation, (a) the directors of Merger
Sub at the Effective Time shall be the
directors of the Surviving Corporation, and
(b) the officers of the Company at
the Effective Time shall be the officers of
the Surviving Corporation.
1.7. CONVERSION OF SECURITIES. Subject to the terms and conditions
of
this Agreement, at the Effective Time, by
virtue of the Merger and without any
action on the part of Parent, Merger Sub,
the Company or the holders of any
securities of Merger Sub or the
Company:
(a) MERGER CONSIDERATION. Each share of common stock, par value
$0.01
per share, of the Company ("COMPANY COMMON
STOCK") issued and outstanding
immediately prior to the Effective Time
(other than shares of Company Common
Stock to be cancelled in accordance with
Section 1.7(c), the Dissenting Shares,
and the shares of Company Common Stock
beneficially owned by Parent or any
direct or indirect wholly owned Subsidiary
of the Company, which shall remain
outstanding except that the number of such
shares owned by Parent or such
Subsidiaries shall be adjusted in the
Merger to maintain relative ownership
percentages) shall
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automatically be converted into the right
to receive $25.00 per share plus the
amount, if any, of the Pro Rata Dividend,
in cash without interest (the "MERGER
CONSIDERATION"), payable to the holder of
such shares of Company Common Stock,
upon surrender, in the manner provided in
Section 1.8, of the certificate that
formerly evidenced such share of Company
Common Stock. All such shares of
Company Common Stock, when so converted,
shall no longer be outstanding and
shall automatically be cancelled and
retired and shall cease to exist, and each
holder of a certificate representing any
such shares of Company Common Stock
shall cease to have any rights with respect
thereto, except the right to receive
the Merger Consideration therefor, without
interest, upon the surrender of such
certificate in accordance with Section
1.8.
(b) MERGER SUB. Each issued and outstanding share of common stock,
par
value $0.01 per share, of Merger Sub shall
be converted into one validly issued
and fully paid share, par value $0.01 per
share, of the Surviving Corporation.
(c) Cancellation. Each share of Company Common Stock owned by
the
Company immediately prior to the Effective
Time shall be cancelled and
extinguished without any conversion thereof
and no payment or other
consideration shall be made with respect
thereto.
1.8. SURRENDER OF CERTIFICATES.
(a) EXCHANGE AGENT. Prior to the Effective Time, Parent shall
select a
bank or trust company reasonably acceptable
to the Company to act as the
exchange agent (the "EXCHANGE AGENT") for
the holders of shares of Company
Common Stock in connection with the Merger
and shall enter into an agreement
with the Exchange Agent which is reasonably
acceptable to the Company. Promptly
and in any event no later than
simultaneously with the Closing, the Company
shall deposit, or cause to be deposited,
the proceeds of the PanAmSat Debt
Financing (including the cash on hand
contemplated thereby, less the amount of
any fees or expenses paid by the Company)
with the Exchange Agent, for the
benefit of the holders of shares of Company
Common Stock and Parent shall
deposit, or cause to be deposited, with the
Exchange Agent, for the benefit of
the holders of shares of Company Common
Stock, cash in an aggregate amount equal
to the excess of (A) the product of (i) the
number of shares of Company Common
Stock issued and outstanding at the
Effective Time (other than shares of Company
Common Stock to be cancelled in accordance
with Section 1.7(c), the Dissenting
Shares and the shares of Company Common
Stock beneficially owned by Parent, or
the Company or any of their respective
wholly-owned direct or indirect
Subsidiaries) and (ii) the Merger
Consideration over (B) the proceeds of the
PanAmSat Debt Financing (including such
cash on hand, less the amount of any
fees or expenses paid by the Company). Any
funds deposited with the Exchange
Agent shall hereinafter be referred to as
the "EXCHANGE FUND."
(b) EXCHANGE PROCEDURES. Promptly after the Effective Time, the
Surviving Corporation shall cause the
Exchange Agent to mail to each holder of
record as of the Effective Time of a
certificate or certificates (the
"Certificates") which immediately prior to
the Effective Time represented
outstanding shares of Company Common Stock
and whose shares were converted
pursuant to Section 1.7(a) into the right
to receive the Merger Consideration:
(i) a letter of transmittal (which shall
specify that delivery shall be
effected, and risk of loss and title to the
Certificates shall pass, only upon
delivery of the Certificates to the
Exchange Agent and shall be in such form and
have such other provisions not inconsistent
with this Agreement as
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Parent and Surviving Corporation shall
reasonably specify) and (ii) instructions
for use in effecting the surrender of the
Certificates in exchange for the
Merger Consideration to which the holder of
such Certificate is entitled
pursuant to Section 1.7(a) (without
limiting the effect of Section 1.11). Upon
surrender of a Certificate for cancellation
to the Exchange Agent and such other
documents as may be reasonably requested by
the Exchange Agent, together with
such letter of transmittal duly completed
and validly executed in accordance
with the instructions thereto, the holder
of such Certificate shall be entitled
to receive promptly in exchange therefor
the aggregate Merger Consideration
which such holder has the right to receive
pursuant to Section 1.7(a) (after
taking into account all Certificates
surrendered by such holder), and each
Certificate so surrendered shall forthwith
be cancelled. Until so surrendered,
each Certificate will represent, from and
after the Effective Time, only the
right to receive the Merger Consideration
in cash as contemplated by this
Article I. No interest shall accrue or be
paid on the amounts payable pursuant
to this Article I upon surrender of a
Certificate.
(c) NO LIABILITY. Notwithstanding anything to the contrary in
this
Section 1.8, neither the Exchange Agent,
Parent, the Surviving Corporation nor
any party hereto shall be liable to any
Person in respect of any Merger
Consideration for any amount properly
delivered to a public official pursuant to
any applicable abandoned property, escheat
or similar law.
(d) TERMINATION OF EXCHANGE AGENT. Any portion of the Exchange
Fund
which remains undistributed to the holders
of Certificates six (6) months after
the Effective Time shall, at the request of
Parent, be delivered to Parent (or
an affiliate of Parent) or otherwise on the
instruction of Parent, and any
holders of the Certificates who have not
surrendered such Certificates in
compliance with this Section 1.8 shall
after such delivery look only to Parent
(subject to abandoned property, escheat and
similar laws) for payment, as
general creditors thereof, of their claim
for the Merger Consideration, without
interest, to which such holders may be
entitled pursuant to Section 1.7(a). Any
such portion of the Exchange Fund remaining
unclaimed by holders of shares of
Company Common Stock immediately prior to
such time as such amounts would
otherwise escheat to or become property of
any Governmental Authority shall, to
the extent permitted by law, become the
property of Parent free and clear of any
claims or interest of any Person previously
entitled thereto.
1.9. NO FURTHER OWNERSHIP RIGHTS IN COMPANY COMMON STOCK. From
and
after the Effective Time, the holders of
Company Common Stock outstanding
immediately prior to the Effective Time
whose shares of Company Common Stock
were converted into the right to receive
Merger Consideration in the Merger
shall cease to have any rights with respect
to such shares of Company Common
Stock except as otherwise provided herein
or by applicable law. The Merger
Consideration paid in exchange for shares
of Company Common Stock in accordance
with the terms hereof shall be deemed to
have been paid in full satisfaction of
all rights pertaining to such shares of
Company Common Stock previously
represented by such Certificates. As of the
Effective Time, the stock transfer
books of the Company shall be closed with
respect to those stockholders whose
shares of Company Common Stock were
converted into the right to receive the
Merger Consideration in the Merger and
there shall be no further registration of
transfers on the records of the Surviving
Corporation of such shares of Company
Common Stock that were outstanding
immediately prior to the Effective Time. If,
after the Effective Time, Certificates with
respect to those stockholders whose
shares of Company Common Stock were
converted into the right to receive Merger
Consideration in the Merger are
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presented to the Surviving Corporation or
the Exchange Agent for any reason,
such Certificates shall be cancelled and
exchanged as provided for in this
Article I.
1.10. LOST, STOLEN OR DESTROYED CERTIFICATES. In the event any
Certificates shall have been lost, stolen
or destroyed, the Exchange Agent shall
deliver in exchange for such lost, stolen
or destroyed Certificates, upon the
making of an affidavit of that fact by the
holder thereof, the Merger
Consideration to which the holder thereof
is entitled pursuant to this Article
I; provided, however, Parent or the
Surviving Corporation may, as a condition
precedent to such delivery, require the
owner of such lost, stolen or destroyed
Certificates to deliver a bond in such sum
as they may reasonably direct as
indemnity against any claim that may be
made against Parent, the Surviving
Corporation, the Company or the Exchange
Agent with respect to the Certificates
alleged to have been lost, stolen or
destroyed.
1.11. DISSENTING SHARES. Notwithstanding any provision of this
Agreement to the contrary, any issued and
outstanding shares of Company Common
Stock held by a Person who has the right to
and has demanded appraisal of such
shares in accordance with Section 262 of
the DGCL ("DISSENTING HOLDER"), and as
of the Effective Time has not failed to
perfect, effectively withdrawn or lost
his right to such appraisal ("DISSENTING
SHARES"), shall not be converted into
or represent a right to receive the Merger
Consideration pursuant to Section
1.7(a), but such Dissenting Holder thereof
shall only be entitled to such rights
in respect thereof as are granted by
Section 262 of the DGCL.
1.12. WITHDRAWAL. Notwithstanding the provision of Section 1.11,
if
any Dissenting Holder shall effectively
withdraw or lose (through failure to
perfect or otherwise) his right to
appraisal, then as of the Effective Time or
the occurrence of such event, whichever
occurs later, such shares shall
automatically be converted into and
represent only the right to receive the
Merger Consideration, as provided in
Section 1.7(a), without interest thereon,
upon surrender of the certificate or
certificates representing such shares in
accordance with Section 1.7(a).
1.13. NOTICE OF DISSENTERS. The Company shall provide Parent
(i)
prompt notice of any written demands for
appraisal or payment of the fair value
of any shares of Company Common Stock, the
withdrawals of such demands and any
other related instruments served pursuant
to the DGCL and received by the
Company and (ii) the opportunity to
participate in all negotiations and
proceedings with respect to demands for
appraisal under the DGCL. Except with
the prior written consent of Parent and,
until the Effective Time, the Company
shall not voluntarily make any payment with
respect to any demands for appraisal
and shall not settle or offer to settle any
such demands.
1.14. WITHHOLDING TAXES. Each of the Exchange Agent, the Company,
the
Surviving Corporation and Parent shall be
entitled to deduct and withhold from
the Merger Consideration pursuant to the
Merger such amounts as the Exchange
Agent, the Company, the Surviving
Corporation and Parent are required to deduct
and withhold with respect to the making of
such payment under the Internal
Revenue Code of 1986, as amended (the
"CODE"), or under any applicable provision
of state, local or foreign Law. To the
extent that amounts are so withheld, such
amounts shall be treated for all purposes
of this Agreement as having been paid
to
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the holder of the Company Common Stock, in
respect of which such deduction and
withholding was made by the Exchange Agent,
the Company, the Surviving
Corporation or Parent.
1.15. TRANSFER OF OWNERSHIP. If the Merger Consideration is to be
paid
to a Person other than the Person in whose
name the surrendered Certificate
formerly evidencing shares of Company
Common Stock is registered, it will be a
condition of payment that the Certificate
so surrendered will be properly
endorsed and otherwise in proper form for
transfer and that the Persons
requesting such payment will have paid to
the Surviving Corporation or any agent
designated by it any transfer or other
Taxes required by reason of the payment
of the amount specified in Section 1.7(a)
to a Person other than the registered
holder of the Certificates surrendered, or
established to the satisfaction of
the Surviving Corporation or any agent
designated by it that such Tax has been
paid or is not payable.
1.16. FURTHER ACTION. At and after the Effective Time, the
officers
and directors of the Surviving Corporation
will be authorized to execute and
deliver, in the name and on behalf of the
Company and Merger Sub, any deeds,
bills of sale, assignments or assurances
and to take and do, in the name and on
behalf of the Company and Merger Sub, any
other actions and things to vest,
perfect or confirm of record or otherwise
in the Surviving Corporation any and
all right, title and interest in, to and
under any of the rights, properties or
assets acquired or to be acquired by the
Surviving Corporation as a result of,
or in connection with, the Merger.
1.17. COMPANY EQUITY AWARDS.
(a) COMPANY OPTIONS. As soon as practicable following the date of
this
Agreement, the Board of Directors of the
Company (the "BOARD OF DIRECTORS") (or,
if appropriate, any committee administering
the Company's Second Amended and
Restated 2004 Stock Option Plan for Key
Employees (the "2004 OPTION PLAN"), and
Fourth Amended and Restated Long-Term Stock
Incentive Plan (together with the
2004 Option Plan, the "COMPANY EQUITY
PLANS")) shall adopt such resolutions or
take such other actions as are required to
adjust the terms of each outstanding
option to purchase shares of Company Common
Stock (each a "COMPANY OPTION")
under any Company Equity Plan or otherwise,
to provide that, at the Effective
Time, each Company Option, including each
Performance Option (as defined in the
Amended and Restated Stock Option
Agreements issued under the 2004 Option Plan),
shall (i) if unvested, vest in full, and
(ii) automatically be cancelled at the
Effective Time and converted into the right
to receive as soon as reasonably
practicable following the Effective Time
(but in no event later than three
Business Days after the Effective Time) a
lump sum cash payment (less applicable
Taxes required to be withheld with respect
to such payment) equal to the product
of (i) the number of shares subject to such
Company Option and (ii) the excess,
if any, of (A) $25.00 less (B) the exercise
price per share of such Company
Option.
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(b) Restricted Shares. Each share of Company Common Stock granted
to
any director of the Company that is subject
to vesting or other lapse
restrictions pursuant to any Company Equity
Plan (collectively, "RESTRICTED
SHARES") and that is outstanding
immediately prior to the Effective Time shall
vest and become free of such restrictions
as of the Effective Time, and, at the
Effective Time, the holder thereof shall,
subject to this Article I, be entitled
to receive the Merger Consideration with
respect to each such Restricted Share.
(c) No Other Company Equity Awards. The Company shall take all
actions
reasonably necessary to ensure that from
and after the Effective Time the
Surviving Corporation will not be bound by
any options, rights, units, awards or
arrangements which would entitle any
Person, other than Parent or its
Subsidiaries, to beneficially own shares of
the Surviving Corporation or receive
any payments (other than as set forth in
this Section 1.17) in respect of such
options, rights, units, awards or
arrangements.
(d) Prior to the Effective Time, the Company shall deliver
appropriate
notices (which notices shall have been
approved by Parent) to each holder of
Company Options setting forth each holder's
rights pursuant to the respective
Company Equity Plans, stating that such
Company Options shall be treated in the
manner set forth in this Section 1.17.
(e) Deferred Stock Units. As soon as practicable following the date
of
this Agreement, the Board of Directors (or,
if appropriate, any committee
administering the Deferred Compensation
Plan (the "DEFERRAL PLAN"), and
Supplemental Savings Plan, (the "SERP"))
shall adopt such resolutions or take
such other actions as are required to
adjust the terms of each outstanding
deferred stock unit (each a "DSU") under
the Deferral Plan and SERP, to provide
that, at the Effective Time, each vested
DSU shall automatically be cancelled at
the Effective Time and converted into a
lump sum in cash equal to the Merger
Consideration, subject to the terms and
conditions set forth in the Deferral
Plan or the SERP, as applicable, including
the terms and conditions with respect
to distributions thereunder.
ARTICLE II
Representations and Warranties of the Company.
The Company hereby represents and warrants to Parent and Merger
Sub
as follows, except as specifically
described on the schedule (subject to Section
7.11) delivered by the Company to Parent in
connection with the execution and
delivery of this Agreement (the "COMPANY
DISCLOSURE SCHEDULE"):
2.1. ORGANIZATION; SUBSIDIARIES; CHARTER DOCUMENTS.
(a) ORGANIZATION. Each of the Company and its Significant
Subsidiaries
is a corporation, partnership or other
entity duly organized, validly existing
and in good standing under the Laws of the
jurisdiction of its incorporation or
organization, and has the requisite
corporate or other power and authority to
own, lease and operate its properties and
to carry on its business as now being
conducted. Each Subsidiary of the Company
that is not a Significant Subsidiary
is a corporation, partnership or other
entity duly organized, validly existing
and in good standing under the Laws of the
jurisdiction of its incorporation or
organization, and has the
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requisite corporate or other power and
authority to own, lease and operate its
properties and to carry on its business as
now being conducted, except where the
failure to be so duly organized, validly
existing and in good standing or to
have such requisite corporate or other
power and authority has not had and would
not, individually or in the aggregate,
reasonably be expected to have a Company
Material Adverse Effect. Each of the
Company and its Subsidiaries is duly
qualified or licensed to do business and is
in good standing in each
jurisdiction in which the property owned,
leased or operated by it or the nature
of the business conducted by it makes such
qualification or licensing necessary,
except where the failure to be so duly
qualified or licensed and in good
standing has not had and would not,
individually or in the aggregate, reasonably
be expected to have a Company Material
Adverse Effect.
(b) SUBSIDIARIES. Section 2.1(b) of the Company Disclosure
Schedule
sets forth a complete list of the Company's
Subsidiaries and all other entities
in which the Company owns, directly or
indirectly, any shares of capital stock
or equity interests and such list sets
forth the jurisdiction of organization of
each such Subsidiary and other entity as of
the date hereof and separately
identifies each Significant Subsidiary.
(c) CHARTER DOCUMENTS. The Company has delivered or made available
to
Parent: (i) a true and correct copy of the
restated certificate of incorporation
and bylaws of the Company, each as amended
to date (collectively, the "COMPANY
CHARTER DOCUMENTS") and (ii) true and
correct copies of the certificate of
incorporation and bylaws, or like
organizational documents, each as amended to
date (collectively, "SUBSIDIARY CHARTER
DOCUMENTS") of each of its Significant
Subsidiaries, and each such instrument is
in full force and effect and no other
organizational documents are applicable to
or binding upon the Company or any
Significant Subsidiary. The Company is not
in violation of any of the provisions
of the Company Charter Documents. No
Subsidiary of the Company is in violation
of its respective Subsidiary Charter
Documents in any material respect.
2.2. CAPITALIZATION OF THE COMPANY.
(a) COMPANY CAPITALIZATION. The authorized capital stock of the
Company consists of 400 million shares of
the Company Common Stock and 50
million shares of preferred stock, par
value $0.01 per share (the "PREFERRED
STOCK"). As of the close of business on
August 25, 2005, (i) 122,598,093 shares
of the Company Common Stock were issued and
outstanding and 5,070,136 shares of
the Company Common Stock were reserved for
issuance upon the exercise of
outstanding Company Options, (ii) no shares
of Preferred Stock were issued and
outstanding and (iii) no bonds, debentures,
notes or other instruments or
evidence of indebtedness having the right
to vote (or convertible into, or
exercisable or exchangeable for, securities
having the right to vote) on any
matters of which stockholders of the
Company may vote were issued or
outstanding. All outstanding shares of
Company Common Stock are, and all shares
which may be issued pursuant to the Company
Equity Plans will be, when issued in
accordance with the respective terms
thereof, duly authorized, validly issued,
fully paid and non-assessable and not
issued in violation of preemptive rights
or similar rights. Except (x) as set forth
in Section 2.2 of the Company
Disclosure Schedule and (y) for changes
since August 25, 2005 resulting from the
exercise of employee and director stock
options outstanding on such date, there
are no outstanding (A) shares of capital
stock or other voting securities of the
Company, (B) securities of the Company
convertible into or exchangeable or
exercisable for
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shares of capital stock or voting
securities of the Company, (C) options,
warrants, restricted stock, restricted
stock units, or other rights to acquire
from the Company, and no preemptive or
similar rights, subscriptions or other
rights, convertible securities, agreements,
arrangements or commitments of any
character, relating to the capital stock or
voting securities of the Company
obligating the Company to issue, register,
transfer or sell, any capital stock,
voting securities or securities convertible
into or exchangeable or exercisable
for capital stock or voting securities of
the Company or obligating the Company
to grant, extend or enter into any such
option, warrant, restricted stock units,
subscription or other right, convertible
security, agreement, arrangement or
commitment or (D) equity equivalents,
interests in the ownership or earnings of
the Company or other similar rights (the
items in clauses (A), (B), (C) and (D)
being referred to collectively as the
"COMPANY SECURITIES"). Except as set forth
in Section 2.2(a) of the Company Disclosure
Schedule, none of the Company or its
Subsidiaries has any obligation,
commitments or arrangements to redeem,
repurchase or otherwise acquire any of the
Company Securities or any of the
Company Subsidiary Securities, including as
a result of the transactions
contemplated by this Agreement, or to
provide funds to or make any investment
(in the form of a loan, capital
contribution or otherwise) in any Subsidiary or
other Person. Except as set forth in
Section 2.2(a) of the Company Disclosure
Schedule, there are no voting trusts or
registration rights or other agreements
or understandings to which the Company or
any of its Subsidiaries is a party
with respect to the voting or disposition
of the capital stock of the Company or
any of its Subsidiaries. No Company
Subsidiary owns any capital stock of the
Company.
(b) SUBSIDIARY CAPITALIZATION. All outstanding shares of capital
stock
or other interests of each Company
Subsidiary have been duly authorized and
validly issued, are fully paid and
nonassessable and were not issued in
violation of preemptive rights or similar
rights. Except as set forth in Section
2.2(b) of the Company Disclosure Schedule,
all of the outstanding shares of
capital stock of, or other ownership
interests in, each Subsidiary of the
Company, are owned by the Company, directly
or indirectly, free and clear of any
Liens other than the pledge of such stock
or ownership interests to secure
Indebtedness reflected on the latest
Company Financials. There are no
outstanding (i) options, warrants,
restricted stock, restricted stock units or
other securities of the Company or any of
its Subsidiaries which are convertible
into or exchangeable or exercisable for
shares of capital stock or other voting
securities or ownership interests in any
Subsidiary of the Company, or (ii)
rights to acquire from the Company or any
of its Subsidiaries any capital stock,
equity equivalents, voting securities or
other ownership interests in, or any
securities convertible into or exchangeable
or exercisable for, any capital
stock, equity equivalents, voting
securities or ownership interests in, any
Subsidiary of the Company or of any
Subsidiary or other similar rights (the
items in clauses (i) and (ii) being
referred to collectively as the "COMPANY
SUBSIDIARY SECURITIES") nor does the
Company or any of its Subsidiaries have any
obligation to issue any Subsidiary
Securities.
(c) INDEBTEDNESS. Section 2.2(c) of the Company Disclosure
Schedule
sets forth a complete and correct list, as
of the date of this Agreement, of
each Contract pursuant to which any
Indebtedness of the Company or its
Subsidiaries is outstanding in an amount in
excess of $1,000,000, together with
the amount outstanding thereunder as of the
date of this Agreement. No Contract
pursuant to which any Indebtedness of the
Company or its Subsidiaries is
outstanding or may be incurred provides for
the right to vote (or is convertible
into, or exchangeable or exercisable for,
securities having the right to vote)
on any matters on which the shareholders of
the Company or its Subsidiaries may
vote. No event has occurred which
entitles
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<PAGE>
(with or without notice or lapse of time or
both) the holder of any Indebtedness
set forth in Section 2.2(c) of the Company
Disclosure Schedule to accelerate, or
which does accelerate, the maturity of any
such Indebtedness.
2.3. CORPORATE AUTHORIZATION; BOARD APPROVAL.
(a) CORPORATE AUTHORIZATION. The Company has all necessary power
and
authority to enter into this Agreement and
each Transaction Document to which it
is a party, to perform its obligations
hereunder and thereunder and to
consummate the transactions contemplated
hereby and thereby. The execution,
delivery and performance by the Company of
this Agreement and each Transaction
Document to which it is a party and the
consummation by the Company of the
transactions contemplated hereby and
thereby, have been duly and validly
authorized by all necessary corporate
action, except, with respect to the
Merger, for the approval and adoption of
this Agreement by the holders of a
majority of the outstanding shares of
Company Common Stock entitled to vote on
this Agreement (the "COMPANY REQUISITE
VOTE"). The Company Requisite Vote is the
only vote of holders of any class or series
of securities necessary to approve
this Agreement and the transactions
contemplated hereby. This Agreement and each
Transaction Document to which the Company
is a party has been duly executed and
delivered by the Company and, assuming the
due authorization, execution and
delivery by the other parties hereto and
thereto, constitutes a valid and
binding agreement of the Company,
enforceable against the Company in accordance
with its terms (subject to applicable
bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and other
similar Laws affecting creditors
rights generally and, by general principles
of equity, including good faith and
fair dealing, regardless of whether in a
proceeding at equity or at law).
(b) BOARD APPROVAL. The Board of Directors of the Company has
by
unanimous vote of all of the directors, at
a meeting duly called and held on or
prior to the date hereof, (i) determined
and declared that this Agreement and
the Merger are advisable and fair to and in
the best interests of the Company
and its stockholders, (ii) approved this
Agreement and the transactions
contemplated hereby, including the Merger
and the transactions contemplated
thereby, (iii) resolved to make the Company
Recommendation and (iv) directed
that this Agreement be submitted to the
Company's stockholders for adoption.
2.4. GOVERNMENTAL APPROVALS. The execution, delivery and
performance
by the Company of this Agreement, and the
consummation by the Company of the
transactions contemplated hereby, require
no action, permit, license,
authorization, certification, consent,
approval, concession or franchise by or
in respect of, or filing with, any federal,
state, or local U.S. or foreign
government, court, administrative agency,
commission, arbitrator or other
governmental or regulatory agency or
authority (a "GOVERNMENTAL AUTHORITY")
other than: (i) the filing of the
Certificate of Merger with respect to the
Merger with the Secretary of State of the
State of Delaware and appropriate
documents with the relevant authorities of
other states in which the Company is
qualified to do business; (ii) compliance
with any applicable requirements of
the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended (the "HSR
ACT"), and any other applicable Antitrust
Laws; (iii) such filings with and
consents of the Federal Communications
Commission ("FCC") as may be required
(including any notifications or other
filings that do not require consent) (the
"FCC CONSENTS"); (iv) a joint filing by the
Company and Parent of a notice to
the Committee on Foreign Investment in the
United States ("CFIUS")
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<PAGE>
pursuant to Section 721 of the Defense
Production Act of 1950 ("EXON-FLORIO
NOTICE"); (v) such other consents,
approvals, orders, authorizations,
registrations, declarations, filings,
notices and permits set forth in Section
2.4 of the Company Disclosure Schedule;
(vi) the filing with the Securities and
Exchange Commission ("SEC") of (A) a Proxy
Statement relating to the Company
Stockholders' Meeting and (B) such reports
under Section 13(a), 13(d), 13(e),
15(d) or 16(a) of the Securities Exchange
Act of 1934, as amended (together with
the rules and regulations thereunder, the
"EXCHANGE ACT"), as may be required in
connection with this Agreement and the
transactions contemplated by this
Agreement; (vii) such filings with or
notices to The New York Stock Exchange;
(viii) those that may be required solely by
reason of Parent's (as opposed to
any other third party's) participation in
the transactions contemplated by this
Agreement; and (ix) such other consents,
approvals, orders, authorizations,
registrations, declarations and filings the
failure of which to be obtained or
made, individually or in the aggregate,
would not reasonably be expected to have
a Company Material Adverse Effect or
prevent or materially impede, interfere
with or hinder or delay the consummation of
the transactions contemplated hereby
(the filings and consents (and any
approvals, authorizations or expirations of
waiting periods thereunder) described in
clauses (iii), (iv) and (v) above,
other than notice filings referred to in
clause (v), are referred to as the
"COMPANY REQUIRED CONSENTS").
2.5. NON-CONTRAVENTION. Except as set forth in Section 2.5 of
the
Company Disclosure Schedule, the execution,
delivery and performance by the
Company of this Agreement and each
Transaction Document to which it is a party
do not, and the consummation of the
transactions contemplated hereby or thereby
will not: (i) contravene, conflict with or
violate the Company Charter Documents
or Subsidiary Charter Documents; (ii)
subject to obtaining the adoption of this
Agreement by the Company's stockholders as
contemplated in Section 4.4 and
obtaining all the consents, approvals and
authorizations specified in clauses
(i) through (ix) of Section 2.4, contravene
or conflict with or constitute a
violation of any provision of any law,
statute, ordinance, rule, code, or
regulation of any Governmental Authority
("LAW"), or any outstanding order,
writ, judgment, injunction, ruling,
determination, award or decree by or with
any Governmental Authority ("ORDER")
binding upon or applicable to the Company
or its Subsidiaries or by which any of
their respective properties are bound or
affected; (iii) subject to obtaining all
the consents, approvals and
authorizations and compliance with the
matters referred to in clauses (i)
through (ix) of Section 2.4, constitute a
default (or an event which with
notice, the lapse of time or both would
become a default) under or give rise to
a right of termination, cancellation,
modification or acceleration of any right
or obligation of the Company or any of its
Subsidiaries, or cause increased
liability or fees or to the loss of a
material benefit or imposition of a
penalty under (A) any Contract or (B) any
Company Permit; or (iv) result in the
creation or imposition of any mortgage,
lien, right of first refusal, pledge,
claim, license, charge, limitation in
voting rights, encumbrance or other
security interest (collectively, the
"LIENS") on any asset of the Company or any
of its Subsidiaries, other than, in the
case of clauses (ii), (iii) or (iv), any
such contraventions, conflicts, violations,
defaults, rights of termination,
cancellation, modification, acceleration or
other occurrences or Liens that have
not had and would not, individually or in
the aggregate, reasonably be expected
to have a Company Material Adverse Effect
or prevent or materially impede,
interfere with or hinder or delay the
consummation of the transactions
contemplated hereby.
2.6. COMPANY SEC DOCUMENTS. The Company and PanAmSat Corporation
have
filed all registration statements,
prospectuses, reports, schedules, forms,
statements and
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<PAGE>
other documents (including exhibits and all
other information incorporated by
reference) required to be filed by it with
the SEC since January 1, 2002
(collectively, the "COMPANY SEC
DOCUMENTS"). The Company SEC Documents (i) were
prepared in accordance and complied in all
material respects with the
requirements of the Securities Act of 1933,
as amended (together with the rules
and regulations thereunder, the "SECURITIES
ACT"), or the Exchange Act, as the
case may be, applicable to the Company SEC
Documents each as in effect on the
date so filed, and (ii) did not at the time
they were filed contain any untrue
statement of a material fact or omit to
state a material fact required to be
stated therein or necessary in order to
make the statements therein, in the
light of the circumstances under which they
were made, not misleading, except to
the extent corrected by a subsequently
filed Company SEC Document filed and
publicly available prior to the date of
this Agreement (including any financial
statements or other documentation
incorporated by reference therein). No
Subsidiary of the Company (other than
PanAmSat Corporation) is required to file
any form, report or other document with the
SEC.
2.7. FINANCIAL STATEMENTS; NO UNDISCLOSED LIABILITIES; INTERNAL
AND
DISCLOSURE CONTROLS.
(a) COMPANY FINANCIALS. Each of the consolidated financial
statements
(including, in each case, any related notes
thereto) contained in the Company
SEC Documents as of their respective dates
(the "COMPANY FINANCIALS"): (i)
complied as to form in all material
respects with all applicable accounting
requirements and with the published rules
and regulations of the SEC with
respect thereto, (ii) was prepared in
accordance with United States generally
accepted accounting principles ("GAAP")
applied on a consistent basis throughout
the periods involved (except as may be
indicated in the notes thereto or, in the
case of unaudited interim financial
statements, as may be permitted by the SEC
on Forms 10-Q, 8-K or any successor forms
under the Exchange Act), and (iii)
fairly presented in all material respects
the consolidated financial condition
of the Company and its consolidated
Subsidiaries as at the respective dates
thereof and the consolidated results of the
Company's operations and cash flows
for the periods indicated. All of the
Subsidiaries of the Company are
consolidated for accounting purposes as
required by GAAP. The consolidated
balance sheet of the Company contained in
the Company SEC Documents as of
December 31, 2004 is hereinafter referred
to herein as the "COMPANY BALANCE
SHEET," and December 31, 2004 is
hereinafter referred to herein as the "COMPANY
BALANCE SHEET DATE."
(b) NO UNDISCLOSED LIABILITIES. Neither the Company nor any of
its
Subsidiaries has any liabilities or
obligations of any nature (whether accrued,
absolute, contingent or otherwise) except
(i) liabilities or obligations
disclosed or provided for in the Company
Financials or the notes thereto or in
the Company SEC Documents filed prior to
the date hereof and publicly available
after the filing of the Company SEC
Document containing the Company Financials
or (ii) liabilities or obligations incurred
in the ordinary course of business
consistent with past practice since the
Company Balance Sheet Date, none of
which have had or would reasonably be
expected to have, individually or in the
aggregate, a Company Material Adverse
Effect.
(c) AMENDMENTS OR MODIFICATIONS. The Company has made available
to
Parent a complete and correct copy of any
amendments or modifications which have
not yet been
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<PAGE>
filed with the SEC to Company Material
Contracts which previously had been filed
by the Company with the SEC pursuant to the
Securities Act or the Exchange Act.
(d) INTERNAL AND DISCLOSURE CONTROLS. The management of the
Company
has (i) implemented disclosure controls and
procedures (as defined in Rule
13a-15(e) of the Exchange Act) to ensure
that material information relating to
the Company, including its consolidated
Subsidiaries, is made known to the
management of the Company by others within
those entities, and (ii) has
disclosed, based on its most recent
evaluation, to the Company's outside
auditors and the audit committee of the
Board of Directors of the Company (A)
all significant deficiencies and material
weaknesses in the design or operation
of internal control over financial
reporting (as defined in Rule 13a-15(f) of
the Exchange Act) which are reasonably
likely to adversely affect the Company's
ability to record, process, summarize and
report financial data and (B) any
fraud, whether or not material, that
involves management or other employees who
have a significant role in the Company's
internal control over financial
reporting.
2.8. INFORMATION IN OFFER DOCUMENTS. None of the Proxy Statement to
be
filed with the SEC in connection with the
Merger, the Debt Offer Documents, nor
any amendment or supplement to the Proxy
Statement or the Debt Offer Documents,
will contain, in the case of the Proxy
Statement or any amendment or supplement
thereto, at the date the Proxy Statement or
any such amendment or supplement is
first mailed to stockholders of the Company
and at the time of the Company
Stockholders' Meeting, and in the case of
the Debt Offer Documents or any
amendments or supplements thereto, at the
time the Debt Offer Documents are
first made available to potential
purchasers of the PanAmSat Debt Financing and
at the time of the consummation of the
PanAmSat Debt Financing, any untrue
statement of a material fact or omit to
state any material fact required to be
stated therein or necessary in order to
make the statements therein, in light of
the circumstances under which they were
made, not misleading, except that no
representation or warranty is made by the
Company with respect to statements
made or incorporated by reference therein
based on information supplied by
Parent for inclusion or incorporation by
reference in the Proxy Statement or the
Debt Offer Documents. The Proxy Statement
will, when filed with the SEC, comply
as to form in all material respects with
the requirements of the Exchange Act
and the rules and regulations promulgated
thereunder.
2.9. ABSENCE OF CERTAIN CHANGES. (a) Except as set forth in
Section
2.9(a) of the Company Disclosure Schedule
or in the Company SEC Documents filed
and publicly available prior to the date
hereof, since the Company Balance Sheet
Date through the date hereof, there has not
been any change, development, event,
condition, occurrence or effect that
individually or in the aggregate has had or
would reasonably be expected to have (i) a
Company Material Adverse Effect or
(ii) a material adverse impact on the
ability of the Company to consummate the
transactions contemplated hereby.
(b) Since June 30, 2005 through the date hereof, except as (i)
specifically contemplated by this
Agreement, (ii) disclosed in the Company SEC
Documents filed and publicly available
prior to the date of this Agreement or
(iii) set forth in Section 2.9(b) of the
Company Disclosure Schedule the
businesses of the Company and its
Subsidiaries have been conducted in all
material respects in the ordinary course of
business consistent with past
practice
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<PAGE>
and there has not occurred any action,
event or failure to act that, if it had
occurred after the date of this Agreement,
would have required the consent of
Parent under Section 4.1.
2.10. INSURANCE. A list of all launch and in-orbit satellite
insurance
policies as of the date hereof is set forth
in Section 2.10 of the Company
Disclosure Schedule. Copies of all such
insurance policies have been made
available to Parent. Except as set forth in
Section 2.10 of the Company
Disclosure Schedule: (i) all such policies
are in full force and effect; (ii)
neither the Company nor any Subsidiary is
in breach or default in any material
respect (including any such breach or
default in any material respect with
respect to the payment of premiums or the
giving of notice), and no event has
occurred which, with notice or the lapse of
time, would constitute such a breach
or default, or permit termination or
modification in any material respect, under
any policy; (iii) all premiums due thereon
have been paid and the Company has
not received any written notice of
cancellation, termination or non-renewal of
any such policy (other than in connection
with settlement of any claims
thereunder); (iv) all appropriate insurers
under such insurance policies have
been notified of all potentially insurable
losses known to the Company and no
such insurer has informed the Company or
any of its Subsidiaries of any denial
of coverage or reservation of rights
thereto; and (v) to the knowledge of the
Company, no insurer on the policy has been
declared insolvent or placed in
receivership, conservatorship or
liquidation. Section 2.10 of the Company
Disclosure Schedule also sets forth all
other material insurance policies in
effect as of the date hereof and owned,
held by or applicable to the Company and
its Subsidiaries.
2.11. REAL PROPERTY; TITLE TO ASSETS.
(a) OWNED REAL PROPERTY. Section 2.11(a) of the Company
Disclosure
Schedule contains a true and complete list
of all the real property owned in fee
by the Company and its Subsidiaries (the
"OWNED REAL PROPERTY"). To the
knowledge of the Company, each of the
Company and its Subsidiaries has good,
valid, fee simple and marketable title to
each parcel of Owned Real Property,
including, without limitation, all
buildings, structures, fixtures and
improvements located thereon, in each case,
free and clear of all Liens, except
(i) Liens set forth in Section 2.11(a) of
the Company Disclosure Schedule, and
(ii) Permitted Liens. Except as set forth
in Section 2.11(a) of the Company
Disclosure Schedule, there are no
outstanding contracts for the sale of any of
the Owned Real Property or for the purchase
of any real property. Except as set
forth in Section 2.11(a) of the Company
Disclosure Schedule, there are no
leases, subleases, licenses, concessions or
any other contracts, options or
rights of first refusal or agreements
granting to any person or entity other
than the Company and its Subsidiaries any
right to the possession, use,
occupancy or enjoyment of any of the Owned
Real Property or any portion thereof.
(b) REAL PROPERTY LEASES. Section 2.11(b) of the Company
Disclosure
Schedule contains a true and complete list
of all leases, subleases,
sub-subleases, licenses and other
agreements, including any amendments or
modifications thereto, under which the
Company or any of its Subsidiaries,
leases, subleases, licenses uses or
occupies (whether as landlord, tenant,
subtenant or pursuant to any other
occupancy arrangement) or has the right to
use or occupy, now or in the future, any
real property (collectively, the "REAL
PROPERTY LEASES," and the property subject
to the Real Property Leases together
with the Owned Real Property, the "REAL
PROPERTY"). The Company has previously
furnished or otherwise made available to
Parent
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<PAGE>
true, correct and complete copies of all
Real Property Leases. Each Real
Property Lease constitutes the valid and
legally binding obligation of the
Company or its Subsidiaries, enforceable
against the Company or its
Subsidiaries, as applicable, in accordance
with its terms. Except as would not
reasonably be expected to have,
individually or in the aggregate, a Company
Material Adverse Effect, with respect to
each Real Property Lease (i) there is
no default or event which, with notice or
lapse of time or both, would
constitute a default on the part of Company
or its Subsidiaries, or, to the
knowledge of the Company, any other party
thereto and (ii) except as set forth
in Section 2.11(b) of the Company
Disclosure Schedule, neither the Company nor
any of its Subsidiaries, as applicable, has
assigned, sublet or transferred its
leasehold interest. Each of the Company and
its Subsidiaries has a good and
valid leasehold interest in each Real
Property Lease free and clear of all
Liens, except (i) as set forth in Section
2.11(b) of the Company Disclosure
Schedule, and (ii) Permitted Liens.
2.12. COMPANY INTELLECTUAL PROPERTY. Section 2.12 of the
Company
Disclosure Schedule lists all registrations
or applications for registration of
any Company Intellectual Property. All
rights in material Company Intellectual
Property are valid, subsisting and
enforceable in all material respects and the
Company or its Subsidiaries owns or has the
right to use all material Company
Intellectual Property, free and clear of
all Liens, except as set forth on
Section 2.12 of the Company Disclosure
Schedule and except for Permitted Liens.
Except as set forth in Section 2.12 of the
Company Disclosure Schedule, (i) no
material Action is pending or, to the
Company's knowledge, threatened against or
affecting the Company or any of its
Subsidiaries or any of their respective
properties, which challenges the validity
or use of, or the ownership by, the
Company and/or its Subsidiaries of the
Company Intellectual Property; (ii) the
Company has no knowledge of any material
infringement or infringing use of any
of the Company Intellectual Property or
licenses by any Person; (iii) the
Company or the Subsidiaries take reasonable
actions to maintain and protect the
material Company Intellectual Property,
including confidential material Company
Intellectual Property, except as would not
reasonably be expected to have,
individually or in the aggregate, a Company
Material Adverse Effect, and (iv) to
the Company's knowledge, no infringement,
misappropriation or violation of any
material intellectual property right or
other proprietary right of any third
party has occurred or will result from the
conduct of the business of the
Company and its Subsidiaries or from the
signing and execution of this Agreement
or the consummation of the transactions
contemplated hereby, and no written
claim has been made to the Company or any
Subsidiary by any third party based
upon an allegation of any such
infringement.
2.13. LITIGATION. There is no action, suit, investigation,
claim,
charge or proceeding ("ACTIONS") pending
against, or to the knowledge of the
Company, threatened against or affecting,
the Company or any of its Subsidiaries
or any of their respective assets,
properties or rights which, individually or
in the aggregate, would reasonably be
expected to have a Company Material
Adverse Effect or prevent or materially
impede, interfere with or hinder or
delay the consummation of the transactions
contemplated hereby. As of the date
of this Agreement, no officer or director
of the Company is a defendant in any
Action commenced by shareholders of the
Company with respect to the performance
of his or her duties as an officer and/or
director of the Company. Except as set
forth in Section 2.13 of the Company
Disclosure Schedule, there exist no
Contracts with any of the directors and
officers of the Company or its
Subsidiaries that provide for
indemnification by the Company or its
Subsidiaries. Except as specifically
disclosed in the Company SEC Documents
filed and publicly available prior to
the
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<PAGE>
date of this Agreement, neither the Company
nor any of its Subsidiaries nor any
of their respective properties or assets is
or are subject to any Order that,
individually or in the aggregate, would
reasonably be expected to have a Company
Material Adverse Effect or prevent or
materially impede, interfere with or
hinder or delay the consummation of the
transactions contemplated hereby.
2.14. TAXES. Except as set forth in Section 2.14 of the Company
Disclosure Schedule:
(a) The Company and each of its Subsidiaries, and each
affiliated
group (within the meaning of Section 1504
of the Code) of which the Company or
any of its Subsidiaries is a member, has
timely filed (or has had timely filed
on its behalf, taking into account all
applicable extensions) all material Tax
Returns required by applicable Law to be
filed by it. All such Tax Returns, as
they relate to the Company and its
Subsidiaries are correct and complete in all
material respects. The Company and each of
its Subsidiaries has paid (or has had
paid on its behalf) all material Taxes due
and owing (whether or not shown on
any Tax Return) and has established an
adequate reserve for the payment of all
Taxes not yet due and owing.
(b) The Company and each of its Subsidiaries has withheld and paid
all
material Taxes required to have been
withheld and paid in connection with any
amounts paid or owing to any employee,
independent contractor, creditor,
stockholder, or other third party.
(c) As of the date of this Agreement, (i) none of the material
Tax
Returns of the Company or its Subsidiaries
have been examined by any Taxing
Authority and (ii) no material audit,
action, proceeding or assessment is
pending or threatened by any such Taxing
Authority against the Company or its
Subsidiaries.
(d) As of the Closing, neither the Company nor its Subsidiaries
will
be a party to any tax allocation, tax
sharing, tax indemnity or similar
agreement with respect to Taxes, except the
Tax Separation Agreement.
(e) There are no Liens for Taxes (other than Taxes not yet due
and
payable or which are being contested in
good faith by appropriate proceedings)
upon any of the assets of the Company or
any of its Subsidiaries.
(f) Neither the Company nor any of its Subsidiaries has ever been
a
member of an "affiliated group" (as defined
in Section 1504(a) of the Code),
except for any group of which the Company,
General Motors Corporation or Hughes
Electronics Corporation (now known as The
DIRECTV Group, Inc.) was the common
parent corporation.
(g) Neither the Company nor any of its Subsidiaries will be
required
to include any item of income in, or
exclude any deduction from, taxable income
for any taxable period (or portion thereof)
ending after the Closing Date as a
result of any: (i) change in method of
accounting for a taxable period ending or
prior to the Closing Date; (ii) "closing
agreement" as described in Section 7121
of the Code (or any corresponding or
similar provision of state, local or
foreign Tax law) executed on or prior to
Closing Date; or (iii) installment sale
or open transaction disposition made on or
prior to the Closing Date.
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<PAGE>
(h) Neither the Company nor any Company Subsidiary has
distributed
stock of another entity, or had its stock
distributed by another entity, in a
transaction that was purported or intended
to be governed in whole or in part by
Section 355 or 361 of the Code.
2.15. EMPLOYEE BENEFIT PLANS; ERISA. Except as set forth in
Section
2.15(a) of the Company Disclosure
Schedule:
(a) All employee benefit plans within the meaning of Section 3(3)
of
the Employment Retirement Income Security
Act of 1974, as amended ("ERISA"), and
all stock purchase, stock option,
severance, retention, employment,
change-in-control, fringe benefit,
collective bargaining, bonus, incentive,
deferred compensation, employee loan,
multiemployer and all other employee
benefit plans, policies or other
arrangements, whether or not subject to ERISA
(including any funding mechanism therefor
now in effect or required in the
future), whether formal or informal, oral
or written, legally binding or not
(collectively, "PLANS"), under which (i)
any current or former employee,
director or consultant of the Company or
its Subsidiaries (the "COMPANY
EMPLOYEES") has any present or future right
to benefits and which are
contributed to, sponsored by or maintained
by the Company or any of its
Subsidiaries or (ii) the Company or any of
its Subsidiaries has had or has any
present or future liability (collectively,
the "COMPANY PLANS") are in
compliance with, and have been established,
administered and operated in
accordance with, the terms of such Company
Plans and applicable Law, except for
any failure to so comply, administer or
operate the Company Plans that would not
reasonably be likely to have, individually
or in the aggregate, a Company
Material Adverse Effect. All Company Plans
that are maintained by the Company or
any of its Subsidiaries at any time since
January 1, 2002 (collectively, the
"COMPANY MAINTAINED PLANS") are set forth
in Section 2.15(a) of the Company
Disclosure Schedule. With respect to each
Company Plan (other than any Company
Non-U.S. Plan, each of which shall be made
available to Parent by the Company
within 30 days after the receipt by the
Company of a written request from Parent
for such plan), the Company has made
available to Parent a true, correct and
complete copy of: (i) each writing
constituting a part of such Company Plan,
including without limitation all plan
documents, employee communications,
benefit schedules, trust agreements, and
insurance contracts and other funding
vehicles; (ii) the most recent Annual
Report (Form 5500 Series) and accompanying
schedule, if any; (iii) the current summary
plan description and any material
modifications thereto, if any (in each
case, whether or not required to be
furnished under ERISA); (iv) the most
recent annual financial report, if any;
(v) the most recent actuarial report, if
any; and (vi) the most recent
determination letter from the IRS, if
any.
(b) The Internal Revenue Service has issued a determination or
opinion
letter to the effect that each such Company
Maintained Plans which is intended
to be "qualified" within the meaning of
Section 401(a) of the Code is so
qualified. Except as could not,
individually or in the aggregate, result in a
Company Material Adverse Effect, (i) no
event has occurred, and no condition
exists, that would subject the Company or
its Subsidiaries, either directly or
by reason of their affiliation with any
member of their "CONTROLLED GROUP"
(defined as any organization which is a
member of a controlled group of
organizations within the meaning of
Sections 414(b), (c), (m) or (o) of the
Code), to any tax, fine, lien, penalty or
other liability imposed by applicable
Law; (ii) neither the Company nor any of
its Subsidiaries has engaged in any
nonexempt prohibited transactions in
connection with any Company Maintained Plan
(or its related trust) with respect to
which the Company or its Subsidiaries or
any officer, director,
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<PAGE>
employee of the Company or any of its
Subsidiaries would be subject to either a
penalty pursuant to Section 502(i) of ERISA
or a tax imposed by Section 4975 of
the Code; and (iii) neither the Company nor
its Subsidiaries has incurred any
liability under the fiduciary provisions of
ERISA. No Company Maintained Plan
that is subject to Part 3 of Subtitle B of
Title I of ERISA has incurred any
"accumulated funded deficiency" (within the
meaning of Section 302 of ERISA or
Section 412 of the Code), whether or not
waived. None of the Company or its
Subsidiaries has participated in or
contributed to any multiemployer plan as
defined in Section 3(37) of ERISA at any
time during the prior six (6) years.
Neither the Company nor any of its
Subsidiaries has incurred or could reasonably
be expected to incur any liability with
respect to any Company Maintained Plan
that is subject to Title IV of ERISA,
except for any liability that would not
reasonably be likely to have, individually
or in the aggregate, a Company
Material Adverse Effect.
(c) With respect to any Company Plan, except as would not,
individually or in the aggregate, result in
a Company Material Adverse Effect,
no (i) actions, suits or claims (other than
routine claims for benefits in the
ordinary course) are pending or threatened
and (ii) facts or circumstances exist
that could give rise to any such actions,
suits or claims.
(d) Except as set forth in Section 2.15(d) of the Company
Disclosure
Schedule, no Company Maintained Plan exists
that, as a result of the execution
of this Agreement or the transactions
contemplated by this Agreement or any
prior acquisitions or reorganizations of
the Company (or any of its affiliates)
(whether alone or in connection with any
subsequent event(s)), could result in
the (i) payment to any Company Employee of
any money or other property; (ii)
provision of any benefits or other rights
of any Company Employee; or (iii)
increase, acceleration or provision of any
payments, benefits or other rights
(whether or not a "parachute payment"
within the meaning of Section 280G of the
Code) to any Company Employee.
(e) Except as set forth in Section 2.15(e)-1 of the Company
Disclosure
Schedule, all Company Maintained Plans
maintained outside the United States
(collectively, the "COMPANY NON-U.S.
PLANS") are in compliance with, and have
been established, administered and operated
in accordance with, the terms of
such Company Non-U.S. Plans and applicable
Law, except for any failure to so
comply, establish, administer or operate
the Company Non-U.S. Plans as would not
reasonably be expected to have a Company
Material Adverse Effect. All such
Company Non-U.S. Plans are set forth in
Section 2.15(e) of the Company
Disclosure Schedule. All contributions or
other payments which are due with
respect to each Company Non-U.S. Plan have
been made in full and there are no
funding deficiencies thereunder, except to
the extent any such events would not,
individually or in the aggregate,
reasonably be expected to have a Company
Material Adverse Effect.
(f) The Company and its Subsidiaries have no liability for
life,
health, medical or other welfare benefits
to former employees or beneficiaries
or dependents thereof, except for health
continuation coverage as required by
Section 4980B of the Code or Part 6 of
Title I of ERISA and at no expense to the
Company and its Subsidiaries.
(g) The Company has caused its 2005 Severance Pay Plan to be
amended
as set forth on Section 2.15(g) of the
Company Disclosure Schedule.
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<PAGE>
2.16. COMPLIANCE WITH LAWS; PERMITS.
(A) COMPLIANCE WITH LAWS. Except as disclosed in the Company
SEC
Documents filed and publicly available
prior to the date hereof and except for
such violations and failures to comply, and
notices, Actions and assertions
concerning such violations and failures to
comply, that have not had and would
not, individually or in the aggregate,
reasonably be expected to have a Company
Material Adverse Effect or have a material
adverse impact on the ability of the
Company or any of its Subsidiaries to
consummate the transactions contemplated
by this Agreement: (i) the Company and each
of its Subsidiaries has conducted
its business and is, in compliance with all
Orders and Laws and corporate
policies applicable thereto and (ii) no
notice, Action or assertion has been
received by the Company or any of its
Subsidiaries or, to the knowledge of the
Company, has been filed, commenced or
threatened against the Company or any of
its Subsidiaries alleging any violation of
any Law applicable to them or by
which their respective properties are bound
or affected.
(b) COMPANY PERMITS. Except as set forth in Section 2.16(b) of
the
Company Disclosure Schedule, the Company
and each of its Subsidiaries hold all
licenses, franchises, permits,
certificates, approvals and authorizations from
Governmental Authorities (i) necessary to
own and operate each Company Satellite
and all related earth stations and (ii)
necessary for the lawful conduct of
their respective businesses except, in the
case of clause (ii), where the
failure to hold the same has not had and
would not, individually or in the
aggregate, reasonably be expected to have a
Company Material Adverse Effect
(collectively, the "COMPANY PERMITS").
Section 2.16(b) of the Company Disclosure
Schedule sets forth a true and complete
list as of the date hereof of all
Company Permits. The Company and its
Subsidiaries are in compliance with the
terms of all Company Permits, except for
such non-compliance as has not had and
would not, individually or in the
aggregate, reasonably be expected to have a
Company Material Adverse Effect.
(c) PENDING APPLICATIONS. Section 2.16(c) of the Company
Disclosure
Schedule sets forth a true and complete
list as of the date hereof of the
Company's pending applications for
authorization for satellites or earth
stations with Governmental Authorities.
2.17. COMPANY SATELLITES.
(a) COMPANY SATELLITES. Set forth in Section 2.17(a) of the
Company
Disclosure Schedule is a complete and
accurate list, by orbital location, of
each satellite listing the number and type
of transponders thereon, owned in
whole or in part by the Company or any of
its Subsidiaries as of the date of
this Agreement (each a "COMPANY
SATELLITE"). Subject to applicable Law, the
Company has made available to Parent true
and correct copies of the most recent
monthly "Health Status Report" in existence
as of the date of this Agreement
summarizing all spacecraft related
incidents and anomalies experienced by
Company Satellites known to the Company at
such date. Except as set forth in
Section 2.17(a) of the Company Disclosure
Schedule, as of the date hereof, the
Company has no knowledge of any
spacecraft-related incidents or anomalies
experienced by Company Satellites or any
latent design defects that are not
disclosed in the "Health Status Reports"
referred to in the immediately
preceding sentence.
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<PAGE>
(b) ITU FREQUENCY REGISTRATION. Section 2.17(b) of the Company
Disclosure Schedule contains a summary, by
orbital location, of the status of
frequency registration at the International
Telecommunications Union, of each
Company Satellite and each advanced
published satellite filed on behalf of the
Company, including the identity of the
sponsoring administration and the
frequency bands covered. Except as set
forth in Section 2.17(b) of the Company
Disclosure Schedule, as of the date hereof,
the Company has no knowledge of any
material and significant conflicting
claim(s) with respect to its rights to use
the frequency assignment(s) described in
its ITU filings at any such orbital
location(s) that reasonably would be
expected to restrict or otherwise affect,
in either case in a materially adverse
manner, the Company's ability to operate
the Company Satellite(s) on such frequency
assignment(s) at such location(s).
2.18. ENVIRONMENTAL MATTERS. Except as set forth in Section 2.18
of
the Company Disclosure Schedule and except
as would not reasonably be expected
to have, individually or in the aggregate,
a Company Material Adverse Effect,
(i) each of the Company and its
Subsidiaries is, and at all times prior, was in
compliance with all applicable
Environmental Laws, (ii) no notice, notification,
demand, request for information, citation,
summons or order has been received
by, no complaint has been filed against or
received, no penalty has been
assessed against, and no investigation,
action, claim, suit, proceeding or
review is pending or threatened by any
Person against, the Company or any of its
Subsidiaries with respect to any matters
relating to or arising out of any
Environmental Law which; (iii) no Hazardous
Substance has been discharged,
disposed of, arranged to be disposed of,
dumped, injected, pumped, deposited,
spilled, leaked, emitted or released by the
Company at, on, under or from any
property or facility owned, leased or
operated by the Company or its
Subsidiaries or, to the knowledge of the
Company, by any prior owner, lessee or
operator; and (iv) there are no
Environmental Liabilities. For purposes of this
Section, the terms "COMPANY" and its
"SUBSIDIARIES" shall include any entity
which is, in whole or in part, a
predecessor of the Company or any of its
Subsidiaries.
2.19. COMPANY MATERIAL CONTRACTS. All Company Material Contracts
are
legal, valid and binding and in full force
and effect and are enforceable by the
Company and its Subsidiaries in accordance
with their respective terms in all
material respects. The Company and its
Subsidiaries have performed in all
material respects all respective
obligations required to be performed by them to
date under the Company Material Contracts
and are not, and to the knowledge of
the Company are not alleged to be (with or
without the lapse of time or the
giving of notice, or both), in breach or
default thereunder in any material
respect. Section 2.19 of the Company
Disclosure Schedule sets forth a complete
and correct list of all Company Material
Contracts as of the date hereof except
that such schedule does not list (1) any
Construction/Launch Contract where the
remaining payments to be made by the
Company do not exceed $10 million, (2)
contracts to operate satellites of third
parties entered into by the Company or
its Subsidiaries in the ordinary course of
business, to the extent true and
correct copies of which have been made
available to Parent prior to the date
hereof, and (3) the individual Customer
Contracts with the Company Material
Customers but instead lists such Company
Material Customers. True and correct
copies of the Company Material Contracts
have been made available to Parent or
its advisors.
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<PAGE>
2.20. FINDERS' FEES. Except for Morgan Stanley, a copy of whose
engagement agreement has been provided to
Parent, no investment banker, broker,
finder, other intermediary or other Person
is entitled to any fee or commission
from the Company or any of its Subsidiaries
in connection with the consummation
of the transactions contemplated by this
Agreement.
2.21. OPINION OF FINANCIAL ADVISOR. THE Company has received
the
opinion of Morgan Stanley to the effect
that, as of the date of such opinion,
the Merger Consideration to be received by
the holders of shares of the Company
Common Stock in connection with the Merger
is fair to such holders from a
financial point of view. An executed copy
of such opinion has been made
available to Parent.
2.22. TAKEOVER STATUTES. The Company has elected in its
restated
certificate of incorporation not to be
governed by Section 203 of the DGCL such
that neither Section 203 of the DGCL nor
the restrictions on "business
combinations" set forth therein apply to,
or restrict the Company's authority to
effect or complete the Merger, this
Agreement and the transactions contemplated
by this Agreement.
2.23. TRANSACTIONS WITH AFFILIATES. Except (i) as set forth in
Section
2.23 of the Company Disclosure Schedule,
(ii) as disclosed in the Company's
registration statement on Form S-1 filed on
December 20, 2004, as amended prior
to the date hereof, (iii) as would not be
required to be disclosed pursuant to
Item 404 of Regulation S-K, or (iv) those
of a type available to employees of
the Company generally, there are no
Contracts or transactions between the
Company or any of its Subsidiaries, on the
one hand, and any (i) officer or
director of the Company or any of its
Subsidiaries, (ii) any of the Stockholders
or any record or beneficial owner of five
percent or more of the voting
securities of the Company or (iii)
Affiliate of any such officer, director,
Stockholder or record or beneficial owner,
on the other hand. For purposes of
this Section, the term "AFFILIATE" shall
have the meaning provided in Rule
501(b) promulgated under the Securities
Act.
2.24. LABOR MATTERS. Neither the Company nor any of its
Subsidiaries
is a party to any collective bargaining
agreement or other labor union contract
applicable to Persons employed by the
Company or any Subsidiary, nor, to the
knowledge of the Company, are there any
activities or proceedings of any labor
union to organize any such employees.
2.25. LIMITATION ON WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN
THIS
AGREEMENT, THE COMPANY MAKES NO
REPRESENTATION OR WARRANTY TO PARENT, EXPRESS OR
IMPLIED, AT LAW OR IN EQUITY, WITH RESPECT
TO THE COMPANY OR ANY SUBSIDIARY OF
THE COMPANY, INCLUDING WITH RESPECT TO
MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE. ALL REPRESENTATIONS OR
WARRANTIES NOT EXPRESSLY SET FORTH IN
THIS AGREEMENT ARE HEREBY DISCLAIMED, AND
PARENT ACKNOWLEDGES THAT IT IS NOT
RELYING ON ANY REPRESENTATION OR WARRANTY
OF THE COMPANY NOT EXPRESSLY SET FORTH
IN THIS AGREEMENT.
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<PAGE>
ARTICLE III
Representations and Warranties of Parent and Merger Sub
Parent and Merger Sub represent and warrant to the Company as
set
forth below:
3.1. ORGANIZATION AND POWER; SUBSIDIARIES.
(a) ORGANIZATION. Each of Parent and Merger Sub is a limited
liability
company, corporation or other entity,
respectively, duly organized, validly
existing and in good standing under the
Laws of the jurisdiction of its
incorporation or organization, and has the
requisite corporate or other power
and authority to own, lease and operate its
properties and to carry on its
business as now being conducted.
(b) CHARTER DOCUMENTS. Parent and Merger Sub have each delivered
or
made available to the Company a true and
correct copy of the Articles of
Incorporation and Bye-laws, as amended to
date (collectively, the "FORMATION
DOCUMENTS"), and such instruments are in
full force and effect and no other
organizational documents are applicable to
or binding upon Parent or Merger Sub.
Parent and Merger Sub are not in violation
of any of the provisions of the
applicable Formation Documents.
3.2. CORPORATE AUTHORIZATION. Parent and Merger Sub each has
all
necessary power and authority to enter into
this Agreement and each Transaction
Document to which it is a party, to perform
its obligations hereunder and
thereunder and to consummate the
transactions contemplated hereby and thereby.
The execution, delivery and performance by
Parent and Merger Sub of this
Agreement and each Transaction Document to
which it is a party and the
consummation by Parent of the transactions
contemplated hereby and thereby, have
been duly and validly authorized by all
necessary limited liability company
action. No vote of any class or series of
Parent's (or of Intelsat, Ltd.'s or
Intelsat Holdings, Ltd.'s) capital stock is
necessary in connection with the
execution of this Agreement or any
Transaction Document and the consummation of
the transactions contemplated hereby and
thereby. This Agreement and each
Transaction Document to which it is a party
has been duly executed and delivered
by Parent, Merger Sub and, assuming the due
authorization, execution and
delivery by the other parties hereto and
thereto, constitutes a valid and
binding agreement of Parent, enforceable
against Parent in accordance with its
terms (subject to applicable bankruptcy,
insolvency, reorganization, moratorium,
fraudulent transfer and other similar Laws
affecting creditors rights generally
and, by general principles of equity,
including good faith and fair dealing,
regardless whether in a proceeding at
equity or at Law).
3.3. GOVERNMENTAL AUTHORIZATION. The execution, delivery and
performance by Parent and Merger Sub of
this Agreement and each Transaction
Document to which it is a party, and the
consummation by Parent of the
transactions contemplated hereby and
thereby, require no action, permit,
license, authorization, certification,
consent, approval, concession or
franchise by or in respect of, or filing
with, any Governmental Authority other
than: (i) compliance with any applicable
requirements of the HSR Act and any
other applicable Antitrust Laws; (ii) the
FCC Consents; (iii) the joint filing
by the Company and Parent of the
Exon-Florio Notice, (iv) such other consents,
approvals, orders, authorizations,
registrations, declarations, filings, notices
and
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<PAGE>
permits set forth in Section 2.4 of the
Company Disclosure Schedule or Section
3.3 of the Parent Disclosure Schedule; (v)
those that may be required solely by
reason of Company's (as opposed to any
other third party's) participation in the
transactions contemplated by this Agreement
and (vi) such other consents,
approvals, orders, authorizations,
registrations, declarations and filings the
failure of which to be obtained or made
individually or in the aggregate would
not reasonably be expected to impair the
ability of Parent to perform their
obligations hereunder, or prevent or
materially impede, interfere with or hinder
or delay the consummation of the
transactions contemplated hereby (the filings
and consents (and any approvals,
authorizations or expirations of waiting
periods thereunder) described in clauses
(ii), (iii) and (iv) above, other than
notice filings referred to in clause (iv),
are referred to as the "PARENT
REQUIRED CONSENTS", and, together with the
Company Required Consents, the
"REQUIRED CONSENTS").
3.4. NON-CONTRAVENTION. The execution, delivery and performance
by
Parent and Merger Sub of this Agreement and
each Transaction Document to which
it is a party do not, and the consummation
by Parent of the transactions
contemplated hereby and thereby will not:
(i) contravene or conflict with the
Parent Formation Documents; (ii) subject to
obtaining all the consents,
approvals and authorizations specified in
clauses (i)-(iv) of Section 3.3,
contravene or conflict with or constitute a
violation of any provision of any
Law or Order binding upon or applicable to
Parent or Merger Sub; (iii) subject
to obtaining all the consents, approvals
and authorizations specified in clauses
(i)-(vi) of Section 3.3, constitute a
default (or an event which with notice,
the lapse of time or both would become a
default) under or give rise to a right
of termination, cancellation or
acceleration of any right or obligation of
Parent or Merger Sub under (A) any
provision of any material Contract binding
upon Parent or (B) any material license,
franchise, or permit held by Parent or
Merger Sub; or (iv) result in the creation
or imposition of any Lien on any
asset of Parent or Merger Sub, other than,
in the case of clauses (ii), (iii) or
(iv), any such contraventions, conflicts,
violations, defaults, rights of
termination, cancellation or acceleration
or Liens that would not, individually
or in the aggregate, reasonably be expected
to impair the ability of Parent or
Merger Sub to perform their obligations
hereunder, or prevent or materially
impede, interfere with or hinder or delay
the consummation of the transactions
contemplated hereby.
3.5. INFORMATION SUPPLIED. None of the information supplied or to
be
supplied by Parent or Merger Sub for
inclusion or incorporation by reference in
the Proxy Statement or any amendment or
supplement thereto or the Debt Offer
Documents or any amendment or supplement
thereto will contain, in the case of
the Proxy Statement, at the date the Proxy
Statement or any s
