EXHIBIT 2
PLAN OF MERGER
AMONG
ANTEC CORPORATION,
TSX CORPORATION
AND
OCTOBER 28, 1996
6
PLAN OF MERGER
PLAN OF MERGER (this "Agreement"), dated October 28,
1996, by and among ANTEC CORPORATION, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, a Delaware corporation
("ANTEC"), TSX CORPORATION, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, a Nevada corporation ("TSX"), and TSX ACQUISITION
CORPORATION, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, a Nevada corporation ("Merger Sub").
WHEREAS, the Boards of Directors of ANTEC, TSX and
Merger Sub have determined that it is in the best interests of
their respective corporations and their stockholders to
consummate the business combination transaction provided for
herein in which Merger Sub will merge with and into TSX (the
"Merger"), so that TSX is the resulting corporation (hereinafter
sometimes called the "Resulting Corporation") in the Merger; and
WHEREAS, the parties desire to make certain
representations, warranties and agreements in connection with the
Merger and also to prescribe certain conditions to the Merger.
NOW, THEREFORE, in consideration of the mutual
covenants, representations, warranties and agreements contained
herein, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties
agree as follows:
ARTICLE I
THE MERGER
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1.1 THE MERGER. Subject to the terms and conditions
of this Agreement, in accordance with the Nevada Revised Statutes
Chapters 78 and 92A (the "NRS"), at the Effective Time (as
defined in Section 1.2), Merger Sub shall merge with and into
TSX, which shall be the Resulting Corporation in the Merger and
shall continue its corporate existence under the laws of the
State of Nevada. Upon consummation of the Merger, the separate
corporate existence of Merger Sub shall terminate.
1.2 EFFECTIVE TIME. The Merger shall become effective
upon the filing of Articles of Merger with the Secretary of State
of the State of Nevada (the "Nevada Secretary"). The parties
shall each use reasonable efforts to cause Articles of Merger to
be filed on the Closing Date (as defined in Section 1.10). The
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term "Effective Time" shall be the date and time when the Merger
becomes effective, in accordance with this Section 1.2.
1.3 EFFECTS OF THE MERGER. At and after the Effective
Time, the Merger shall have the effects set forth in Section
92A.250 of the NRS.
1.4 CONVERSION OF TSX COMMON STOCK; TREATMENT OF ANTEC
COMMON STOCK.
(a) At the Effective Time, subject to Section
2.2, by virtue of the Merger and without any action on the
part of TSX, or the holder of any securities, each share of
the common stock, $.01 par value, of TSX (the "TSX Common
Stock") issued and outstanding immediately prior to the
Effective Time shall be converted into the right to receive
one share (the "TSX Exchange Ratio") of the common stock,
par value $.01 per share, of ANTEC (the "ANTEC Common
Stock").
(b) All of the shares of TSX Common Stock
converted into ANTEC Common Stock pursuant to this Article I
shall no longer be outstanding and shall automatically be
canceled and shall cease to exist as of the Effective Time,
and each certificate (each a "Common Stock Certificate")
previously representing any such shares of TSX Common Stock
shall thereafter represent only the right to receive a
certificate representing the number of whole shares of ANTEC
Common Stock into which the Common Stock Certificates
previously representing shares of TSX Common Stock have been
converted pursuant to this Section 1.4. Such Common Stock
Certificates shall be exchanged for certificates
representing whole shares of ANTEC Common Stock issued in
consideration therefor upon the surrender of such Common
Stock Certificates in accordance with Section 2.2, without
any interest thereon. If, prior to the Effective Time, the
outstanding shares of ANTEC Common Stock or TSX Common Stock
shall have been increased, decreased, changed into or
exchanged for a different number or kind of shares or
securities as a result of a reorganization,
recapitalization, reclassification, stock dividend, stock
split, reverse stock split, or other similar change in
capitalization, then an appropriate and proportionate
adjustment shall be made to the TSX Exchange Ratio.
(c) At the Effective Time, all shares of TSX
Common Stock that are owned by TSX as treasury stock, if
any, shall be canceled and shall cease to exist, and no
stock of ANTEC or other consideration shall be delivered in
exchange therefor.
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(d) Each share of Merger Sub Common Stock that is
issued and outstanding immediately prior to the Effective
Time shall at the Effective Time be converted into one share
of TSX so that after the Merger the only outstanding shares
of TSX shall be owned by ANTEC.
(e) Each share of ANTEC Common Stock outstanding
prior to the Merger shall, after the Effective Time,
continue to be an outstanding share of ANTEC Common Stock.
1.5 OPTIONS. At the Effective Time, each option
granted by TSX to purchase shares of TSX Common Stock which is
outstanding and unexercised immediately prior thereto shall cease
to represent a right to acquire shares of TSX Common Stock and
shall be converted automatically into an option to purchase the
same number of shares of ANTEC Common Stock at the same exercise
price and otherwise subject to the terms of the TSX stock option
plans and agreements under which they were issued and which
relate thereto, as certain of such agreements are amended as
described in Schedule 3.18 to the TSX Disclosure Schedules. The
foregoing may, at ANTEC's election, be accomplished through the
amendment of existing options or plans or through the issuance of
replacement options.
1.6 ARTICLES OF INCORPORATION. Subject to the terms
and conditions of this Agreement, at the Effective Time, an
amended and restated Articles of Incorporation of TSX shall be
filed with the Nevada Secretary so that the Amended and Restated
Articles of Incorporation of Merger Sub, substantially in the
form attached as Exhibit A hereto, shall be the Amended and
Restated Articles of Incorporation of the Resulting Corporation
until thereafter amended in accordance with applicable law.
1.7 BY-LAWS. Subject to the terms and conditions of
this Agreement, at the Effective Time, the By-Laws of TSX
substantially in the form attached as Exhibit B hereto shall be
the By-Laws of the Resulting Corporation until thereafter amended
in accordance with applicable law.
1.8 TAX CONSEQUENCES. It is intended that the Merger
shall constitute a reorganization within the meaning of Section
368(a)(i)(A) of the Code, and that this Agreement shall
constitute a "plan of reorganization" for the purposes of Section
368 of the Code.
1.9 PLANS FOR MANAGEMENT SUCCESSION. At the Effective
Time, without further action, the Boards of Directors and the
officers of ANTEC and TSX shall be as set forth in Schedule 1.9
to the ANTEC Disclosure Schedules. The Board of Directors of
ANTEC shall take all action necessary to elect the individuals
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named in Schedule 1.9 to the ANTEC Disclosure Schedules as
directors and officers.
1.10 CLOSING. Subject to the terms and conditions of
this Agreement, including but not limited to the provisions of
Article VII of this Agreement, the closing of the Merger (the
"Closing") will take place at 10:00 a.m. on a date and at a place
to be specified by the parties, which shall be no later than the
third business day after the date on which all of the conditions
precedent to the Merger set forth in Sections 7.1, 7.2 and 7.3
have occurred, unless such date is extended by mutual agreement
of the parties (the "Closing Date").
ARTICLE II
CONVERSION OF SHARES
--------------------
2.1 ANTEC TO MAKE SHARES AVAILABLE. At or prior to
the Effective Time, ANTEC shall deposit, or shall cause to be
deposited, with a bank, trust company or other entity reasonably
acceptable to TSX (the "Exchange Agent"), for the benefit of the
holders of TSX Common Stock Certificates (collectively, the
"Certificates"), for exchange in accordance with this Article II,
certificates representing the shares of ANTEC Common Stock (such
certificates for shares of ANTEC Common Stock, together with any
dividends or distributions with respect thereto, being
hereinafter referred to as the "Conversion Fund") to be issued
pursuant to Section 1.4 and paid pursuant to Section 2.2(a) in
exchange for outstanding shares of TSX Common Stock.
2.2 EXCHANGE OF SHARE CERTIFICATES.
(a) As soon as practicable after the Effective
Time, and in no event later than ten business days
thereafter, ANTEC shall cause the Exchange Agent to mail to
each holder of record of one or more Certificates 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 instructions for use in effecting the
surrender of the Certificates in exchange for certificates
representing the shares of ANTEC Common Stock into which the
shares of TSX Common Stock represented by such Certificate
or Certificates shall have been converted pursuant to this
Agreement. Upon proper surrender of a Certificate for
exchange to the Exchange Agent, together with such properly
completed letter of transmittal, duly executed, the holder
of such Certificate shall be entitled to receive in exchange
therefor a certificate representing that number of whole
shares of ANTEC Common Stock to which such holder of TSX
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Common Stock shall have become entitled pursuant to the
provisions of Article I and the Certificate so surrendered
shall forthwith be canceled.
(b) If any certificate representing shares of
ANTEC Common Stock is to be issued in a name other than that
in which the Certificate surrendered in exchange therefor is
registered, it shall be a condition of the issuance thereof
that the Certificate so surrendered shall be properly
endorsed (or accompanied by an appropriate instrument of
transfer) and otherwise in proper form for transfer, and
that the person requesting such exchange shall pay to the
Exchange Agent in advance any transfer or other taxes
required by reason of the issuance of a certificate
representing shares of ANTEC Common Stock in any name other
than that of the registered holder of the Certificate
surrendered, or required for any other reason, or shall
establish to the satisfaction of the Exchange Agent that
such tax has been paid or is not payable.
(c) After the Effective Time, there shall be no
transfers on the stock transfer books of TSX of the shares
of TSX Common Stock which were issued and outstanding
immediately prior to the Effective Time. If, after the
Effective Time, Certificates representing such shares are
presented for transfer to the Exchange Agent, they shall be
canceled and exchanged for certificates representing shares
of ANTEC Common Stock as provided in this Article II.
(d) Any portion of the Conversion Fund that
remains unclaimed by the stockholders of TSX for 12 months
after the Effective Time shall be paid to ANTEC. Any
stockholders of TSX who have not theretofore complied with
this Article II shall thereafter look only to ANTEC for the
issuance of certificates representing shares of ANTEC Common
Stock and any unpaid dividends and distributions on the
ANTEC Common Stock deliverable in respect of each share of
TSX Common Stock without any interest thereon.
Notwithstanding the foregoing, none of ANTEC, Merger Sub,
TSX, the Exchange Agent or any other person shall be liable
to any former holder of shares of TSX Common Stock, for any
amount delivered in good faith to a public official pursuant
to applicable abandoned property, escheat or similar laws.
(e) In the event any Certificate shall have been
lost, stolen or destroyed, upon the making of an affidavit
of that fact by the person claiming such Certificate to be
lost, stolen or destroyed and, if reasonably required by
ANTEC, the posting by such person of a bond in such amount
as ANTEC may determine is reasonably necessary as indemnity
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against any claim that may be made against it with respect
to such Certificate, the Exchange Agent will issue in
exchange for such lost, stolen or destroyed Certificate the
shares of ANTEC Common Stock deliverable in respect thereof
pursuant to this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF TSX
-------------------------------------
Except as disclosed in the TSX disclosure schedules
delivered to ANTEC concurrently herewith (the "TSX Disclosure
Schedules") as referenced herein, TSX hereby represents and
warrants to ANTEC as follows:
3.1 CORPORATE ORGANIZATION.
(a) TSX is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Nevada. TSX has the corporate power and authority to own or
lease all of its properties and assets and to carry on its
business as it is now being conducted, and is duly licensed
or qualified to do business in each jurisdiction in which
the nature of the business conducted by it or the character
or location of the properties and assets owned or leased by
it makes such licensing or qualification necessary, except
where the failure to be so licensed or qualified would not
have a Material Adverse Effect (as defined below) on TSX.
True and complete copies of the Articles of Incorporation
and By-Laws of TSX, as in effect as of the date of this
Agreement, have previously been made available by TSX to
ANTEC. As used in this Agreement, the term "Material
Adverse Effect" means, with respect to TSX, ANTEC or Merger
Sub, as the case may be, a material adverse effect on the
condition (financial or otherwise), business, properties,
business relationships, prospects or results of operations
of such party and its Subsidiaries taken as a whole, but
without intending to be inclusive of all other matters, it
is agreed that the effect thereon of the items described on
Schedule 3.1 to the TSX Disclosure Schedules or on Schedule
4.1 to the ANTEC Disclosure Schedules shall not singularly
or in the aggregate with other events constitute a Material
Adverse Effect. The word "Subsidiary" when used with
respect to any party means any corporation, partnership,
limited liability company, or other organization, whether
incorporated or unincorporated, which is consolidated with
such party for financial reporting purposes.
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(b) As of the date of this Agreement the only
direct or indirect Subsidiaries of TSX (the "TSX
Subsidiaries") are as set forth in Exhibit 21 to the TSX
Form 10-K (as defined in Section 3.5). Except as set forth
on Schedule 3.1 to the TSX Disclosure Schedules and for
investments individually less than $500,000 and in the
aggregate less than $1,000,000, TSX does not own, directly
or indirectly, and has not agreed to make any such
investment in, any voting stock or equity securities of any
corporation, partnership, limited liability company, or
other organization, whether incorporated or unincorporated,
other than the TSX Subsidiaries.
(c) Each TSX Subsidiary (i) is duly organized and
validly existing as a corporation under the laws of its
jurisdiction of organization, (ii) is duly qualified to do
business and in good standing in all jurisdictions (whether
federal, state, local or foreign) where its ownership or
leasing of property or the conduct of its business requires
it to be so qualified and in which the failure to be so
qualified would have a Material Adverse Effect on TSX, and
(iii) has all requisite corporate power and authority to own
or lease its properties and assets and to carry on its
business as now conducted.
(d) Except as set forth in Schedule 3.1 to the
TSX Disclosure Schedules, the minute books of TSX and of
each of the TSX Subsidiaries have been made available to
ANTEC and accurately reflect in all material respects all
corporate meetings held or actions taken since incorporation
by the stockholders and Boards of Directors of TSX and each
TSX Subsidiary, respectively (including committees of the
Boards of Directors of TSX and the TSX Subsidiaries).
3.2 CAPITALIZATION.
(a) The authorized capital stock of TSX consists
of 50,000,000 shares of TSX Common Stock, of which, as of
September 30, 1996, 15,423,666 shares were issued and
outstanding, and 10,000,000 shares of preferred stock, $.01
par value, of which, as of September 30, 1996, no shares
were issued and outstanding. As of September 30, 1996, no
shares of TSX Common Stock were held in treasury. All of
the issued and outstanding shares of TSX Common Stock have
been duly authorized and validly issued and are fully paid,
nonassessable and free of preemptive rights, with no
personal liability attaching to the ownership thereof.
Except in connection with the plans and agreements disclosed
on Schedule 3.2 to the TSX Disclosure Schedules, TSX does
not have and is not bound by any outstanding subscriptions,
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options, warrants, calls, commitments or agreements of any
character calling for the purchase or issuance of any shares
of TSX Common Stock or any other equity securities of TSX or
any securities representing the right to purchase or
otherwise receive any shares of the capital stock of TSX.
Except in connection with the plans and agreements disclosed
on Schedule 3.2 to the TSX Disclosure Schedules, no shares
of TSX Common Stock have been reserved for issuance. Except
as disclosed in Schedule 3.2 to the TSX Disclosure
Schedules, since September 30, 1996, TSX has not issued any
shares of its capital stock or any securities convertible
into or exercisable for any shares of its capital stock
except upon exercise of stock options outstanding on
September 30, 1996 and stock options issued thereafter as
permitted by Section 5.2(b) of this Agreement. TSX has no
fractional shares outstanding.
(b) TSX owns, directly or indirectly, all of the
issued and outstanding shares of capital stock of each of
the TSX Subsidiaries, free and clear of any liens, pledges,
charges, encumbrances and security interests whatsoever
("Liens"). All of the shares of capital stock of TSX are
duly authorized and validly issued and are fully paid,
nonassessable and free of preemptive rights, with no
personal liability attaching to the ownership thereof. No
TSX Subsidiary has or is bound by any outstanding
subscriptions, options, warrants, calls, commitments or
agreements of any character calling for the purchase or
issuance of any shares of capital stock or any other equity
security of such TSX Subsidiary or any securities
representing the right to purchase or otherwise receive any
shares of capital stock or any other equity security of such
TSX Subsidiary.
3.3 AUTHORITY; NO VIOLATION.
(a) TSX has full corporate power and authority to
execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and
delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly
approved by the Board of Directors of TSX. The Board of
Directors of TSX has directed that this Agreement and the
transactions contemplated hereby be submitted to TSX's
stockholders for approval at a meeting of such stockholders
and, except for the adoption of this Agreement by the
affirmative vote of the holders of a majority of the
outstanding shares of TSX Common Stock, no other corporate
proceedings on the part of TSX are necessary to approve this
Agreement and to consummate the transactions contemplated
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hereby. This Agreement has been duly and validly executed
and delivered by TSX and (assuming due authorization,
execution and delivery by ANTEC and Merger Sub) constitutes
a valid and binding obligation of TSX, enforceable against
TSX in accordance with its terms.
(b) Neither the execution and delivery of this
Agreement by TSX nor the consummation by TSX of the
transactions contemplated hereby, nor compliance by TSX with
any of the terms or provisions hereof, will (i) violate any
provision of the Articles of Incorporation or By-Laws of
TSX, or (ii) assuming that the consents and approvals
referred to in Section 3.4 are duly obtained, (x) violate
any statute, code, ordinance, rule, regulation, judgment,
order, writ, decree or injunction applicable to TSX or any
of the TSX Subsidiaries or any of their respective
properties or assets, or (y) violate, conflict with, result
in a breach of any provision of or the loss of any benefit
under, constitute a default (or an event which, with notice
or lapse of time, or both, would constitute a default)
under, result in the termination of or a right of
termination or cancellation under, accelerate the
performance required by, or result in the creation of any
Lien upon any of the respective properties or assets of TSX
or any of the TSX Subsidiaries under, any of the terms,
conditions or provisions of any note, bond, mortgage,
indenture, deed of trust, license, lease, agreement or other
instrument or obligation to which TSX or any of its
Subsidiaries is a party, or by which they or any of their
respective properties or assets may be bound or affected,
except (in the case of clause (y) above) for such
violations, conflicts, breaches or defaults which, in the
aggregate, will not have or be reasonably likely to have a
Material Adverse Effect on TSX.
3.4 CONSENTS AND APPROVALS. Except as set forth in
Schedule 3.4 of the TSX Disclosure Schedules, no consents or
approvals of or filings or registrations with any court,
administrative agency or commission or other governmental
authority or instrumentality (each a "Governmental Entity") or
with any third party are necessary in connection with the
execution and delivery by TSX of this Agreement and the
consummation by TSX of the Merger and the other transactions
contemplated hereby except for (a) the filing with the Department
of Justice and Federal Trade Commission of any filings required
under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of ▇▇▇▇
(▇▇▇ "▇▇▇ ▇▇▇"), (▇) the filing with the Securities and Exchange
Commission (the "SEC") of a joint proxy statement (the "Joint
Proxy Statement") in definitive form relating to the meetings of
TSX and ANTEC's stockholders to be held in connection with this
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Agreement and the transactions contemplated hereby and the
registration statement on Form S-4 (the "S-4") in which such
Joint Proxy Statement will be included as a prospectus, (c) the
filing of Articles of Merger with the Nevada Secretary under the
NRS, (d) such filings and approvals as are required to be made or
obtained under the securities or "Blue Sky" laws of various
states in connection with the issuance of the shares of ANTEC
Common Stock pursuant to this Agreement, (e) the approval of an
application to list the ANTEC Common Stock on The Nasdaq Stock
Market's National Market, subject to official notice of issuance,
and (f) the approval of this Agreement by the requisite vote of
the stockholders of TSX.
3.5 FINANCIAL STATEMENTS. TSX has previously made
available to ANTEC copies of (a) the consolidated balance sheets
of TSX and its Subsidiaries as of April 30, 1995 and 1996, and
the related consolidated statements of income, changes in
stockholders' equity and cash flows for the fiscal years ended
April 30, 1994, 1995 and 1996, inclusive, as reported in TSX's
Annual Report on Form 10-K for the fiscal year ended April 30,
1996 (the "TSX Form 10-K") filed with the SEC under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
in each case accompanied by the audit report of KPMG Peat Marwick
LLP, independent public accountants with respect to TSX, and (b)
the unaudited consolidated balance sheet of TSX and the TSX
Subsidiaries as of July 27, 1996, and the related unaudited
consolidated statements of income, cash flows and changes in
stockholders' equity for the three-month period then ended as
reported in TSX's Quarterly Report on Form 10-Q for the period
ended July 27, 1996 filed with the SEC under the Exchange Act
(the "TSX First Quarter 10-Q"). The April 30, 1996 and July 27,
1996 consolidated balance sheets of TSX (including the related
notes, where applicable) fairly present the consolidated
financial position of TSX and the TSX Subsidiaries as of the
dates thereof, and the other financial statements referred to in
this Section 3.5 (including the related notes, where applicable)
fairly present the results of the consolidated operations and
changes in stockholders' equity and consolidated financial
position of TSX and the TSX Subsidiaries for the respective
fiscal periods or as of the respective dates therein set forth,
subject, in the case of the unaudited statements, to recurring
audit adjustments normal in nature and amount; each of such
statements (including the related notes, where applicable) comply
in all material respects with applicable accounting requirements
and with the published rules, regulations and interpretations of
the SEC with respect thereto; and each of such statements
(including the related notes, where applicable) has been prepared
in all material respects in accordance with generally accepted
accounting principles ("GAAP") consistently applied during the
periods involved, except, in each case, as indicated in such
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statements or in the notes thereto or, in the case of unaudited
statements, as permitted by Form 10-Q. The books and records of
TSX and the TSX Subsidiaries have been, and are being, maintained
in all material respects in accordance with GAAP and any other
applicable legal and accounting requirements and reflect only
actual transactions.
3.6 BROKER'S FEES. Other than TSX's agreement with
▇▇▇▇▇ & Company Incorporated to serve as a financial advisor to
TSX and provide a fairness opinion in connection with the Merger
and related transactions contemplated by this Agreement, a copy
of which agreement has been provided to ANTEC, neither TSX nor
any TSX Subsidiary nor any of their respective officers or
directors has employed any financial advisor, broker or finder or
incurred any liability for any financial advising, broker's
fees, commissions or finder's fees in connection with the Merger
or related transactions contemplated by this Agreement.
3.7 ABSENCE OF CERTAIN CHANGES OR EVENTS.
(a) Except as publicly disclosed in TSX Reports
(as defined in Section 3.10) filed prior to the date hereof
or as disclosed in Schedules 3.1 or 3.7 to the TSX
Disclosure Schedules, since July 27, 1996, (i) TSX and the
TSX Subsidiaries taken as a whole have not incurred any
material liability, except in the ordinary course of their
business, and (ii) no event has occurred which has had,
individually or in the aggregate, a Material Adverse Effect
on TSX or is reasonably likely to have a Material Adverse
Effect on ANTEC.
(b) Except as publicly disclosed in the TSX
Reports filed prior to the date hereof or as disclosed in
Schedules 3.1 or 3.7 to the TSX Disclosure Schedules or as
contemplated by this Agreement, since July 27, 1996, TSX and
each TSX Subsidiary have carried on their respective
businesses in all material respects in the ordinary and
usual course.
3.8 LEGAL PROCEEDINGS.
(a) Except as set forth in Schedule 3.8 to the
TSX Disclosure Schedules or as would not have a Material
Adverse Effect on TSX, there are no pending or, to the best
of TSX's knowledge, threatened, legal, administrative,
arbitration or other proceedings, claims, actions or
governmental or regulatory investigations of any nature
against TSX or any of the TSX Subsidiaries or their
respective properties, assets, operations or business, or
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challenging the validity or propriety of the transactions
contemplated by this Agreement.
(b) Except as would not have a Material Adverse
Effect on TSX, there is no injunction, order, judgment,
decree, or regulatory restriction imposed upon TSX, any of
the TSX Subsidiaries or the assets of TSX or any of the TSX
Subsidiaries.
3.9 TAXES AND TAX RETURNS.
(a) Each of TSX and the TSX Subsidiaries has duly
filed all federal, state, county, foreign and, to the best
of TSX's knowledge, local information returns and tax
returns required to be filed by it on or prior to the date
hereof (all such returns being accurate and complete in all
material respects) and has duly paid or made provisions for
the payment of all Taxes (as defined in Section 3.9(b)) and
other governmental charges which have been incurred or are
due or claimed to be due from it by federal, state, county,
foreign or local taxing authorities on or prior to the date
of this Agreement (including, without limitation, if and to
the extent applicable, those due in respect of its
properties, income, business, capital stock, deposits,
franchises, licenses, sales and payrolls) other than Taxes
or other charges which are not yet delinquent or are being
contested in good faith and have not been finally
determined. From TSX's emergence from bankruptcy in fiscal
year 1988 through the date hereof, the income tax returns of
TSX and the TSX Subsidiaries have never been examined by the
Internal Revenue Service (the "IRS"). There are no material
disputes pending, or claims asserted for, Taxes or
assessments upon TSX or any of the TSX Subsidiaries for
which TSX does not have adequate reserves, nor has TSX or
any of the TSX Subsidiaries given any currently effective
waivers extending the statutory period of limitation
applicable to any federal, state, county, foreign or local
income tax return for any period. In addition, (i) proper
and accurate amounts have been withheld by TSX and each of
the TSX Subsidiaries from their employees for all prior
periods in compliance in all material respects with the tax
withholding provisions of applicable federal, state, foreign
and local laws, except where failure to do so would not have
a Material Adverse Effect on TSX, (ii) federal, state,
foreign, county and local returns which are accurate and
complete in all material respects have been filed by TSX and
each of the TSX Subsidiaries for all periods for which
returns were due with respect to income tax withholding,
Social Security and unemployment taxes, (iii) for purposes
of TSX's books and records and financial statements, Taxes
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have been computed in accordance with all applicable laws,
(iv) the amounts shown on such federal, state, foreign,
local or county returns to be due and payable have been paid
in full or adequate provision therefor has been included by
TSX in its consolidated financial statements as of April 30,
1996, and (v) there are no Tax liens upon any property or
assets of TSX or any of the TSX Subsidiaries except liens
for current taxes not yet due or that, individually or in
the aggregate, would not have a Material Adverse Effect on
TSX. Neither TSX nor any of the TSX Subsidiaries has been
required to include in income any adjustment pursuant to
Section 481 of the Code by reason of a voluntary change in
accounting method initiated by TSX or any of the TSX
Subsidiaries, and the IRS has not initiated or proposed any
such adjustment or change in accounting method. Except as
set forth in the financial statements described in Section
3.5 or as disclosed in Schedule 3.7 to the TSX Disclosure
Schedules, neither TSX nor any of its Subsidiaries has
entered into a transaction which is being accounted for as
an installment obligation under Section 453 of the Code.
(b) As used in this Agreement, the term "Tax" or
"Taxes" means all federal, state, county, local, and foreign
income, excise, gross receipts, gross income, ad valorem,
profits, gains, property, capital, sales, transfer, use,
payroll, employment, severance, withholding, duties,
intangibles, franchise, backup withholding, and other taxes,
charges, levies or like assessments together with all
penalties and additions to tax and interest thereon.
3.10 SEC REPORTS. TSX has previously made available to
ANTEC an accurate and complete copy of each (a) final
registration statement, prospectus, report, schedule and
definitive proxy statement filed since October 1, 1993 by TSX
with the SEC pursuant to the Securities Act of 1933, as amended
(the "Securities Act"), or the Exchange Act (the "TSX Reports")
and prior to the date hereof and (b) communication mailed by TSX
to its stockholders since October 1, 1993 and prior to the date
hereof. None of the TSX Reports or such communications to
stockholders contained any untrue statement of a material fact or
omitted to state any 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, except
that information as of a later date shall be deemed to modify
information as of an earlier date. Since October 1, 1993, TSX has
timely filed all TSX Reports and other documents required to be
filed by it under the Securities Act and the Exchange Act, and,
as of their respective dates, all TSX Reports complied in all
material respects with the published rules and regulations of the
SEC with respect thereto.
19
3.11 COMPLIANCE WITH APPLICABLE LAW. TSX and each of
the TSX Subsidiaries hold all licenses, franchises, permits and
authorizations necessary for the lawful conduct of their
respective businesses under and pursuant to all, and have
complied with and are not in default under any, applicable laws,
statutes, orders, rules, regulations, policies and/or guidelines
of any Governmental Entity relating to TSX or any of the TSX
Subsidiaries, except where the failure to hold such license,
franchise, permit or authorization or such noncompliance or
default would not, individually or in the aggregate, have a
Material Adverse Effect on TSX.
3.12 CERTAIN CONTRACTS.
(a) Except as set forth in Schedules 3.12 or
3.18 to the TSX Disclosure Schedules or as contained as an
exhibit to the TSX Form 10-K, neither TSX nor any of its
Subsidiaries is a party to or bound by:
(i) any contract, arrangement, commitment or
understanding (whether written or oral) which, upon the
consummation of the transactions contemplated by this
Agreement will (either alone or upon the occurrence of
any additional acts or events) result in any payment
(including, without limitation, severance, unemployment
compensation, golden parachute or otherwise) becoming
due from TSX, ANTEC or Merger Sub or any of their
respective Subsidiaries to any officer, director or
employee thereof;
(ii) any contract, arrangement, commitment or
understanding (whether written or oral) which would
materially restrict the conduct of any line of
business; or
(iii) any contract, arrangement, commitment or
understanding (whether written or oral), including any
stock option plan, stock appreciation rights plan,
restricted stock plan or stock purchase plan, any of
the benefits of which will be increased, or the vesting
of the benefits of which will be accelerated, by the
occurrence of any of the transactions contemplated by
this Agreement, or the value of any of the benefits of
which will be calculated on the basis of any of the
transactions contemplated by this Agreement.
Each contract, arrangement, commitment or understanding of
the type described in this Section 3.12(a), whether or not
set forth in the TSX Disclosure Schedules, is referred to
herein as a "TSX Contract," and, except as disclosed on
20
Schedules 3.8 or 3.18 to the TSX Disclosure Schedules,
neither TSX nor any of the TSX Subsidiaries knows of, or has
received notice of, any violation of the above by any of the
other parties thereto, which, individually or in the
aggregate, would have a Material Adverse Effect on TSX or
ANTEC.
(b) Except as set forth on Schedule 3.12, (i)
except as would not, individually or in the aggregate, have
a Material Adverse Effect on TSX, each TSX Contract is valid
and binding on TSX or any of the TSX Subsidiaries, as
applicable, and is in full force and effect, (ii) TSX and
each of the TSX Subsidiaries has performed all obligations
required to be performed by it to date under each TSX
Contract, and (iii) no event or condition exists which
constitutes or, after notice or lapse of time or both, would
constitute, a default on the part of TSX or any of the TSX
Subsidiaries under any such TSX Contract.
3.13 UNDISCLOSED LIABILITIES. Except as described in
Schedule 3.1 or 3.7 to the TSX Disclosure Schedules and for those
liabilities that are fully reflected or reserved against on the
consolidated balance sheet of TSX included in the TSX First-
Quarter 10-Q or the TSX Form 10-K and for liabilities incurred in
the ordinary course of business consistent with past practice
since July 27, 1996, neither TSX nor any of the TSX Subsidiaries
has incurred any liability of any nature whatsoever (whether
absolute, accrued, contingent or otherwise and whether due or to
become due) that, either alone or when combined with all similar
liabilities, has had, or could reasonably be expected to have, a
Material Adverse Effect on TSX.
3.14 PATENTS, TRADEMARKS, ETC. TSX and each of the TSX
Subsidiaries have all patents, trademarks, trade names, service
marks, trade secrets, copyrights and licenses and other
proprietary intellectual property rights and licenses as are
necessary in connection with the businesses of TSX and each of
the TSX Subsidiaries, the lack of which would have a Material
Adverse Effect on TSX, and except as disclosed in Schedule 3.14
to the TSX Disclosure Schedules, TSX does not have any knowledge
of any conflict with the rights of TSX and each of the TSX
Subsidiaries therein or any knowledge of any conflict by them
with the rights of others therein which, insofar as reasonably
can be foreseen, could have a Material Adverse Effect on TSX.
3.15 ENVIRONMENTAL LIABILITY. There are no legal,
administrative, arbitration or other proceedings, claims,
actions, causes of action, private environmental investigations
or remediation activities or governmental investigations of any
nature pending or, to the best of TSX's knowledge, threatened
21
against TSX seeking to impose, or that could reasonably result in
the imposition, on TSX of any liability or obligation arising
under common law or under any local, state, federal or foreign
environmental statute, regulation or ordinance including, without
limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended ("CERCLA")
which, insofar as reasonably can be foreseen, could have a
Material Adverse Effect on TSX. To the best of TSX's knowledge,
there is no reasonable basis for any such proceeding, claim,
action or governmental investigation that would impose any such
liability or obligation which, insofar as reasonably can be
foreseen, could have a Material Adverse Effect on TSX. TSX is
not subject to any agreement, order, judgment, decree, letter or
memorandum by or with any court, governmental authority,
regulatory agency or third party imposing any such liability or
obligation which, insofar as reasonably can be foreseen, could
have a Material Adverse Effect on TSX.
3.16 FAIRNESS OPINION. TSX has received the written
opinion of ▇▇▇▇▇ & Company Incorporated, financial advisors to
TSX, dated the date hereof, to the effect that the consideration
to be received in the Merger by TSX's stockholders is fair to the
stockholders of TSX from a financial point of view.
3.17 POOLING OF INTERESTS. As of the date of this
Agreement, after discussions with KPMG Peat Marwick LLP, TSX has
no reason to believe that the Merger will not qualify as a
"pooling of interests" for accounting purposes.
3.18 OFFICERS AND OTHER AFFILIATES. At or prior to the
date of this Agreement, the contracts and other arrangements with
the officers and other affiliates of TSX have been implemented or
modified as described in Schedule 3.18 to the TSX Disclosure
Schedules.
3.19 APPROVAL OF BOARD OF DIRECTORS. The Board of
Directors of TSX has approved, prior to the date hereof, the
Merger and all related transactions, including the Voting
Agreement referred to in Section 4.18, pursuant to subsection (a)
of Article Ninth of the Articles of Incorporation of TSX and the
applicable provisions of NRS.
3.20 REPRESENTATIONS AND WARRANTIES. Other than the
representations and warranties contained in this Article III, TSX
makes no representations and warranties in connection with this
Agreement.
22
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF ANTEC AND MERGER SUB
------------------------------
Except as disclosed in the ANTEC disclosure schedules
delivered to TSX concurrently herewith (the "ANTEC Disclosure
Schedules") as referenced herein, ANTEC and Merger Sub hereby
represent and warrant to TSX as follows:
4.1 CORPORATE ORGANIZATION.
(a) ANTEC is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Delaware. ANTEC has the corporate power and
authority to own or lease all of its properties and assets
and to carry on its business as it is now being conducted,
and is duly licensed or qualified to do business in each
jurisdiction in which the nature of the business conducted
by it or the character or location of the properties and
assets owned or leased by it makes such licensing or
qualification necessary, except where the failure to be so
licensed or qualified would not have a Material Adverse
Effect on ANTEC. Merger Sub is a corporation duly
organized, validly existing and in good standing under the
laws of the State of Nevada. Merger Sub has not engaged in
any business (other than certain organizational matters)
since it was incorporated and does not have any contractual
liabilities, commitments, or obligations (other than
pursuant to this Agreement) or any assets (other than cash
representing its initial capitalization). True and complete
copies of the Certificate of Incorporation and By-Laws of
ANTEC, and the Articles of Incorporation and By-Laws of
Merger Sub, each as in effect as of the date of this
Agreement, have previously been made available by ANTEC to
TSX.
(b) As of the date of this Agreement, the only
direct or indirect Subsidiaries of ANTEC (the "ANTEC
Subsidiaries") are as set forth in Schedule 4.1 to the ANTEC
Disclosure Schedules. Except as set forth on Schedule 4.1
to the ANTEC Disclosure Schedules and for investments
individually less than $500,000 and in the aggregate less
than $1,000,000, ANTEC does not own, directly or indirectly,
and has not agreed to make any such investment in, any
voting stock or equity securities of any corporation,
partnership, limited liability company, or other
organization, whether incorporated or unincorporated, other
than the ANTEC Subsidiaries.
23
(c) Each ANTEC Subsidiary (i) is duly organized
and validly existing as a corporation under the laws of its
jurisdiction of organization, (ii) is duly qualified to do
business and in good standing in all jurisdictions (whether
federal, state, local or foreign) where its ownership or
leasing of property or the conduct of its business requires
it to be so qualified and in which the failure to be so
qualified would have a Material Adverse Effect on ANTEC, and
(iii) has all requisite corporate power and authority to own
or lease its properties and assets and to carry on its
business as now conducted.
(d) The minute books of ANTEC and of each of the
ANTEC Subsidiaries have been made available to TSX and
accurately reflect in all material respects all corporate
meetings held or actions taken since incorporation by the
stockholders and Boards of Directors of ANTEC and each ANTEC
Subsidiary, respectively (including committees of the Boards
of Directors of ANTEC and the ANTEC Subsidiaries).
4.2 CAPITALIZATION.
(a) The authorized capital stock of ANTEC
consists of 50,000,000 shares of ANTEC Common Stock, of
which, as of September 30, 1996, 22,895,461 shares were
issued and outstanding, and 5,000,000 shares of preferred
stock, par value $1.00 per share, of which, as of September
30, 1996 no shares were issued and outstanding. As of
September 30, 1996, no shares of ANTEC Common Stock were
held in treasury. All of the issued and outstanding shares
of ANTEC Common Stock have been duly authorized and validly
issued and are fully paid, nonassessable and free of
preemptive rights, with no personal liability attaching to
the ownership thereof. The Authorized capital stock of
Merger Sub consists of 1,000 shares as common stock, $.01
par value, of which, as of the date of this Agreement, 100
shares are validly issued and outstanding, fully paid and
non-assessable. Except in connection with the plans and
agreements as set forth on Schedule 4.2 to the ANTEC
Disclosure Schedules, ANTEC does not have and is not bound
by any outstanding subscriptions, options, warrants, calls,
commitments or agreements of any character calling for the
purchase or issuance of any shares of the capital stock of
ANTEC. Except in connection with plans and agreements
disclosed on Schedule 4.2 to the ANTEC Disclosures
Schedules, no shares of ANTEC Common Stock have been
reserved for issuance. Since September 30, 1996, ANTEC has
not issued any shares of its capital stock or any securities
convertible into or exercisable for any shares of its
capital stock except upon exercise of employee stock options
24
outstanding on September 30, 1996 and except for stock
options, SARs and other benefits granted to employees of
ANTEC in January 1997 consistent with its prior practices.
(b) ANTEC owns, directly or indirectly, all of
the issued and outstanding shares of capital stock of each
of the ANTEC Subsidiaries, free and clear of any Liens. All
of the shares of capital stock of each of the ANTEC
Subsidiaries are duly authorized and validly issued and are
fully paid, nonassessable and free of preemptive rights,
with no personal liability attaching to the ownership
thereof. No ANTEC Subsidiary has or is bound by any
outstanding subscriptions, options, warrants, calls,
commitments or agreements of any character calling for the
purchase or issuance of any shares of capital stock or any
other equity security of such ANTEC Subsidiary or any
securities representing the right to purchase or otherwise
receive any shares of capital stock or any other equity
security of such ANTEC Subsidiary.
4.3 AUTHORITY; NO VIOLATION.
(a) Each of ANTEC and Merger Sub has full
corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated
hereby. The execution and delivery by each of ANTEC and
Merger Sub of this Agreement and the consummation by each of
ANTEC and Merger Sub of the transactions contemplated on its
part hereby have been duly and validly approved by its Board
of Directors. The Board of Directors of ANTEC has directed
that this Agreement and the transactions contemplated hereby
be submitted to ANTEC's stockholders for approval at a
meeting of such stockholders and, except for the adoption of
this Agreement by the affirmative vote of the holders of a
majority of the shares of ANTEC Common Stock represented at
the meeting, no other corporate proceedings on the part of
ANTEC or Merger Sub are necessary to approve this Agreement
and to consummate the transactions contemplated hereby.
This Agreement has been duly and validly executed and
delivered by ANTEC and Merger Sub and (assuming due
authorization, execution and delivery by TSX) constitutes a
valid and binding obligation of ANTEC and Merger Sub,
enforceable against ANTEC and Merger Sub in accordance with
its terms.
(b) Neither the execution and delivery of this
Agreement by ANTEC and Merger Sub nor the consummation by
ANTEC and Merger Sub of the transactions contemplated
hereby, nor compliance by ANTEC and Merger Sub with any of
the terms or provisions hereof, will (i) violate any
25
provision of the Certificate of Incorporation or By-Laws of
ANTEC, or the Articles of Incorporation or By-Laws of Merger
Sub, or (ii) assuming that the consents and approvals
referred to in Section 4.4 are duly obtained, (x) violate
any statute, code, ordinance, rule, regulation, judgment,
order, writ, decree or injunction applicable to ANTEC or any
of the ANTEC Subsidiaries or any of their respective
properties or assets, or (y) violate, conflict with, result
in a breach of any provision of or the loss of any benefit
under, constitute a default (or an event which, with notice
or lapse of time, or both, would constitute a default)
under, result in the termination of or a right of
termination or cancellation under, accelerate the
performance required by, or result in the creation of any
Lien upon any of the respective properties or assets of
ANTEC or any of the ANTEC Subsidiaries under, any of the
terms, conditions or provisions of any note, bond, mortgage,
indenture, deed of trust, license, lease, agreement or other
instrument or obligation to which ANTEC or any of the ANTEC
Subsidiaries is a party, or by which they or any of their
respective properties or assets may be bound or affected,
except (in the case of clause (y) above) for such
violations, conflicts, breaches or defaults which, in the
aggregate, will not have or be reasonably likely to have a
Material Adverse Effect on ANTEC.
4.4 CONSENTS AND APPROVALS. Except as set forth in
Schedule 4.4 to the ANTEC Disclosure Schedules, no consents or
approvals of or filings or registrations with any Governmental
Entity or with any third party are necessary in connection with
the execution and delivery by ANTEC of this Agreement and the
consummation by ANTEC of the Merger and the other transactions
contemplated hereby except for (a) the filing with the Department
of Justice and Federal Trade Commission of any filings required
under the HSR Act, (b) the filing with the SEC of the Joint Proxy
Statement and the S-4 in which such Joint Proxy Statement will be
included as a prospectus, (c) the filing of Articles of Merger
with the Nevada Secretary under the NRS, (d) such filings and
approvals as are required to be made or obtained under the
securities or "Blue Sky" laws of various states in connection
with the issuance of the shares of ANTEC Common Stock pursuant to
this Agreement, (e) the approval of an application to list the
ANTEC Common Stock on The Nasdaq Stock Market's National Market,
subject to official notice of issuance, and (f) the approval of
this Agreement by the requisite vote of the stockholders of TSX.
4.5 FINANCIAL STATEMENTS. ANTEC has previously made
available to TSX copies of (a) the consolidated balance sheets of
ANTEC and its Subsidiaries as of December 31, 1994 and 1995 and
the related consolidated statements of income, changes in
26
stockholders' equity and cash flows for the fiscal years ended
December 31, 1993, 1994 and 1995, inclusive, as reported in
ANTEC's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995 (the "ANTEC Form 10-K") filed with the SEC
under the Exchange Act, in each case accompanied by the audit
report of Ernst & Young LLP, independent public accountants with
respect to ANTEC, and (b) the unaudited consolidated balance
sheet of ANTEC and its Subsidiaries as of June 30, 1996 and June
30, 1995 and the related unaudited consolidated statements of
income, cash flows and changes in stockholders' equity for the
three- and six-month periods then ended as reported in ANTEC's
Quarterly Report on Form 10-Q for the period ended June 30, 1996
filed with the SEC under the Exchange Act (the "ANTEC Second
Quarter 10-Q"). The December 31, 1995 and June 30, 1996
consolidated balance sheets of ANTEC (including the related
notes, where applicable) fairly present the consolidated
financial position of ANTEC and the ANTEC Subsidiaries as of the
dates thereof, and the other financial statements referred to in
this Section 4.5 (including the related notes, where applicable)
fairly present the results of the consolidated operations and
changes in stockholders' equity and consolidated financial
position of ANTEC and the ANTEC Subsidiaries for the respective
fiscal periods or as of the respective dates therein set forth,
subject, in the case of the unaudited statements, to recurring
audit adjustments normal in nature and amount; each of such
statements (including the related notes, where applicable) comply
in all material respects with applicable accounting requirements
and with the published rules, regulations and interpretations of
the SEC with respect thereto; and each of such statements
(including the related notes, where applicable) has been prepared
in all material respects in accordance with GAAP consistently
applied during the periods involved, except, in each case, as
indicated in such statements or in the notes thereto or, in the
case of unaudited statements, as permitted by Form 10-Q. The
books and records of ANTEC and the ANTEC Subsidiaries have been,
and are being, maintained in all material respects in accordance
with GAAP and any other applicable legal and accounting
requirements and reflect only actual transactions.
4.6 BROKER'S FEES. Other than ANTEC's agreement with
an investment bank satisfactory to ANTEC to serve as a financial
advisor to ANTEC and provide a fairness opinion in connection
with the Merger and related transactions contemplated by this
Agreement, a copy of which agreement has been provided to TSX,
neither ANTEC nor any ANTEC Subsidiary nor any of their
respective officers or directors has employed any financial
advisor, broker or finder or incurred any liability for any
financial advising, broker's fees, commissions or finder's fees
in connection with the Merger or related transactions
contemplated by this Agreement.
27
4.7 ABSENCE OF CERTAIN CHANGES OR EVENTS.
(a) Except as publicly disclosed in ANTEC Reports
(as defined in Section 4.10) filed prior to the date hereof
or as disclosed on Schedules 4.1 or 4.7 to the ANTEC
Disclosure Schedules, since June 30, 1996, (i) ANTEC and the
ANTEC Subsidiaries taken as a whole have not incurred any
material liability, except in the ordinary course of their
business, and (ii) no event has occurred which has had, or
is reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on ANTEC.
(b) Except as publicly disclosed in the ANTEC
Reports filed prior to the date hereof or as disclosed in
Schedules 4.1 or 4.7 to the ANTEC Disclosure Schedules or as
contemplated by this Agreement, since June 30, 1996, ANTEC
and the ANTEC Subsidiaries have carried on their respective
businesses in all material respects in the ordinary and
usual course.
4.8 LEGAL PROCEEDINGS.
(a) Except as set forth in Schedule 4.8 to the
ANTEC Disclosure Schedules or as would not have a Material
Adverse Effect on ANTEC, there are no pending or, to the
best of ANTEC's knowledge, threatened, legal,
administrative, arbitration or other proceedings, claims,
actions or governmental or regulatory investigations of any
nature against ANTEC or any of the ANTEC Subsidiaries or
their respective properties, assets, operations or business,
or challenging the validity or propriety of the transactions
contemplated by this Agreement.
(b) Except as would not have a Material Adverse
Effect on ANTEC, there is no injunction, order, judgment,
decree, or regulatory restriction imposed upon ANTEC, any of
the ANTEC Subsidiaries or the assets of ANTEC or any of the
ANTEC Subsidiaries.
4.9 TAXES AND TAX RETURNS. Each of ANTEC and the
ANTEC Subsidiaries has duly filed all federal, state, county,
foreign and, to the best of ANTEC's knowledge, local information
returns and tax returns required to be filed by it on or prior to
the date hereof (all such returns being accurate and complete in
all material respects) and has duly paid or made provisions for
the payment of all Taxes and other governmental charges which
have been incurred or are due or claimed to be due from it by
federal, state, county, foreign or local taxing authorities on or
prior to the date of this Agreement (including, without
limitation, if and to the extent applicable, those due in respect
28
of its properties, income, business, capital stock, deposits,
franchises, licenses, sales and payrolls) other than Taxes or
other charges which are not yet delinquent or are being contested
in good faith and have not been finally determined. As of the
date hereof, the income tax returns of ANTEC and the ANTEC
Subsidiaries have never been examined by the IRS. There are no
material disputes pending, or claims asserted for, Taxes or
assessments upon ANTEC or any of the ANTEC Subsidiaries for which
ANTEC does not have adequate reserves, nor has ANTEC or any of
the ANTEC Subsidiaries given any currently effective waivers
extending the statutory period of limitation applicable to any
federal, state, county, foreign or local income tax return for
any period, except as described in Schedule 4.9 to the ANTEC
Disclosure Schedules. In addition, (i) proper and accurate
amounts have been withheld by ANTEC and the ANTEC Subsidiaries
from their employees for all prior periods in compliance in all
material respects with the tax withholding provisions of
applicable federal, state, foreign and local laws, except where
failure to do so would not have a Material Adverse Effect on
ANTEC, (ii) federal, state, foreign, county and local returns
which are accurate and complete in all material respects have
been filed by ANTEC and each of the ANTEC Subsidiaries for all
periods for which returns were due with respect to income tax
withholding, Social Security and unemployment taxes, (iii) for
purposes of ANTEC's books and records and financial statements,
taxes have been computed in accordance with all applicable laws,
(iv) the amounts shown on such federal, state, foreign, local or
county returns to be due and payable have been paid in full or
adequate provision therefor has been included by ANTEC in its
consolidated financial statements as of December 31, 1995, and
(v) there are no Tax liens upon any property or assets of ANTEC
or any of the ANTEC Subsidiaries except liens for current taxes
not yet due or that, individually or in the aggregate, would not
have a Material Adverse Effect on ANTEC. Except as described on
Schedule 4.9 to the ANTEC Disclosure Schedules, neither ANTEC nor
any of the ANTEC Subsidiaries has been required to include in
income any adjustment pursuant to Section 481 of the Code by
reason of a voluntary change in accounting method initiated by
ANTEC or any of the ANTEC Subsidiaries, and the IRS has not
initiated or proposed any such adjustment or change in accounting
method. Except as set forth in the financial statements
described in Section 4.5 or as disclosed in Schedule 4.9 to the
ANTEC Disclosure Schedules, neither ANTEC nor any of the ANTEC
Subsidiaries has entered into a transaction which is being
accounted for as an installment obligation under Section 453 of
the Code.
4.10 SEC REPORTS. ANTEC has previously made available
to TSX an accurate and complete copy of each (a) final
registration statement, prospectus, report, schedule and
29
definitive proxy statement filed since October 1, 1993 by ANTEC
with the SEC pursuant to the Securities Act or the Exchange Act
(the "ANTEC Reports") and prior to the date hereof and (b)
communication mailed by ANTEC to its stockholders since October
1, 1993 and prior to the date hereof. None of the ANTEC Reports
or such communications to stockholders contained any untrue
statement of a material fact or omitted to state any 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, except that information as of a
later date shall be deemed to modify information as of an earlier
date. Since October 1, 1993, ANTEC has timely filed all ANTEC
Reports and other documents required to be filed by it under the
Securities Act and the Exchange Act, and, as of their respective
dates, all ANTEC Reports complied in all material respects with
the published rules and regulations of the SEC with respect
thereto.
4.11 COMPLIANCE WITH APPLICABLE LAW. ANTEC and each of
the ANTEC Subsidiaries hold all licenses, franchises, permits and
authorizations necessary for the lawful conduct of their
respective businesses under and pursuant to all, and have
complied with and are not in default under any, applicable laws,
statutes, orders, rules, regulations, policies and/or guidelines
of any Governmental Entity relating to ANTEC or any of the ANTEC
Subsidiaries, except where the failure to hold such license,
franchise, permit or authorization or such noncompliance or
default would not, individually or in the aggregate, have a
Material Adverse Effect on ANTEC.
4.12 CERTAIN CONTRACTS.
(a) Except as set forth in Schedule 4.12 to the
ANTEC Disclosure Schedules or as contained as an exhibit to
the ANTEC Form 10-K, neither ANTEC nor any of the ANTEC
Subsidiaries is a party to or bound by:
(i) any contract, arrangement, commitment or
understanding (whether written or oral) which, upon the
consummation of the transactions contemplated by this
Agreement will (either alone or upon the occurrence of
any additional acts or events) result in any payment
(including, without limitation, severance, unemployment
compensation, golden parachute or otherwise) becoming
due from ANTEC, TSX, Merger Sub, or any of their
respective Subsidiaries to any officer, director or
employee thereof;
(ii) any contract, arrangement, commitment or
understanding (whether written or oral) which would
30
materially restrict the conduct of any line of business
currently being conducted by TSX;
(iii) any contract, arrangement, commitment or
understanding (whether written or oral), including any
stock option plan, stock appreciation rights plan,
restricted stock plan or stock purchase plan, any of
the benefits of which will be increased, or the vesting
of the benefits of which will be accelerated, by the
occurrence of any of the transactions contemplated by
this Agreement, or the value of any of the benefits of
which will be calculated on the basis of any of the
transactions contemplated by this Agreement.
Each contract, arrangement, commitment or understanding of
the type described in this Section 4.12(a), whether or not
set forth in the ANTEC Disclosure Schedules, is referred to
herein as a "ANTEC Contract," and neither ANTEC nor any of
the ANTEC Subsidiaries knows of, or has received notice of,
any violation of the above by any of the other parties
thereto which, individually or in the aggregate, would have
a Material Adverse Effect on ANTEC.
(b) Except as would not, individually or in the
aggregate, have a Material Adverse Effect on ANTEC, or as is
disclosed on Schedule 4.4 to the ANTEC Disclosure Schedules
(i) each ANTEC Contract is valid and binding on ANTEC or any
of the ANTEC Subsidiaries, as applicable, and is in full
force and effect, (ii) ANTEC and each of the ANTEC
Subsidiaries has performed all obligations required to be
performed by it to date under each ANTEC Contract and (iii)
no event or condition exists which constitutes or, after
notice or lapse of time or both, would constitute, a default
on the part of ANTEC or any of the ANTEC Subsidiaries under
any such ANTEC Contract.
4.13 UNDISCLOSED LIABILITIES. Except as described in
Schedule 4.1 or 4.7 to the ANTEC Disclosure Schedules and for
those liabilities that are fully reflected or reserved against on
the consolidated balance sheet of ANTEC included in the ANTEC
Second-Quarter 10-Q or the ANTEC Form 10-K and for liabilities
incurred in the ordinary course of business consistent with past
practice since June 30, 1996, neither ANTEC nor any of the ANTEC
Subsidiaries has incurred any liability of any nature whatsoever
(whether absolute, accrued, contingent or otherwise and whether
due or to become due) that, either alone or when combined with
all similar liabilities, has had, or could reasonably be expected
to have, a Material Adverse Effect on ANTEC.
31
4.14 PATENTS, TRADEMARKS, ETC. ANTEC and each of the
ANTEC Subsidiaries have all patents, trademarks, trade names,
service marks, trade secrets, copyrights and licenses and other
proprietary intellectual property rights and licenses as are
necessary in connection with the businesses of ANTEC and each of
the ANTEC Subsidiaries, the lack of which would have a Material
Adverse Effect on ANTEC, and except as disclosed in Schedule 4.8
to the ANTEC Disclosure Schedules, ANTEC does not have any
knowledge of any conflict with the rights of ANTEC and each of
the ANTEC Subsidiaries therein or any knowledge of any conflict
by them with the rights of others therein which, insofar as
reasonably can be foreseen, could have a Material Adverse Effect
on ANTEC.
4.15 ENVIRONMENTAL LIABILITY. There are no legal,
administrative, arbitration or other proceedings, claims,
actions, causes of action, private environmental investigations
or remediation activities or governmental investigations of any
nature pending or, to the best of ANTEC's knowledge, threatened
against ANTEC seeking to impose, or that could reasonably result
in the imposition, on ANTEC of any liability or obligation
arising under common law or under any local, state, federal or
foreign environmental statute, regulation or ordinance including,
without limitation, CERCLA which, insofar as reasonably can be
foreseen, could have a Material Adverse Effect on ANTEC. To the
best of ANTEC's knowledge, there is no reasonable basis for any
such proceeding, claim, action or governmental investigation that
would impose any such liability or obligation which, insofar as
reasonably can be foreseen, could have a Material Adverse Effect
on ANTEC. ANTEC is not subject to any agreement, order,
judgment, decree, letter or memorandum by or with any court,
governmental authority, regulatory agency or third party imposing
any such liability or obligation which, insofar as reasonably can
be foreseen, could have a Material Adverse Effect on ANTEC.
4.16 POOLING OF INTERESTS. As of the date of this
Agreement, after discussions with Ernst & Young LLP, ANTEC has no
reason to believe that the Merger will not qualify as a "pooling
of interests" for accounting purposes.
4.17 OFFICERS AND OTHER AFFILIATES. At or prior to the
date of this Agreement the contracts and other arrangements with
the officers and other affiliates of ANTEC have been implemented
or modified as described in Schedule 4.17 to the ANTEC Disclosure
Schedules.
4.18 OWNERSHIP OF TSX STOCK. Neither ANTEC nor any of
the ANTEC Subsidiaries is an "Interested Stockholder" of TSX as
defined in Article Ninth of the Articles of Incorporation of TSX,
except insofar as they could be considered an "Interested
32
Stockholder" as a result of entering into the Voting Agreement
dated as of October 28, 1996, between ANTEC and Tele-
Communications, Inc. or one of its affiliates. As of the date of
this Agreement, neither ANTEC nor the ANTEC Subsidiaries nor any
of their respective affiliates own (directly or indirectly,
beneficially or of record) any shares of TSX Common Stock and
neither ANTEC nor any of the ANTEC Subsidiaries own any rights to
acquire any shares of TSX Stock, except pursuant to this
Agreement and insofar as they could be considered an "Interested
Stockholder" as a result of entering into the Voting Agreement
dated as of October 28, 1996, between ANTEC and Tele-
Communications, Inc. or one of its affiliates. The above
representations have been included in this Agreement in order to
fully inform TSX of ANTEC's arrangement with Tele-Communications,
Inc. and no implication shall be drawn from the foregoing as to
whether ANTEC is an "Interested Stockholder."
4.19 REPRESENTATIONS AND WARRANTIES. Other than the
representations and warranties contained in this Article IV,
ANTEC makes no representations and warranties in connection with
this Agreement.
ARTICLE V
COVENANTS RELATING TO CONDUCT OF BUSINESS
-----------------------------------------
5.1 CONDUCT OF BUSINESSES PRIOR TO THE EFFECTIVE TIME.
During the period from the date of this Agreement to the
Effective Time, except as expressly contemplated or permitted by
this Agreement (including the ANTEC Disclosure Schedules and the
TSX Disclosure Schedules), each of ANTEC and TSX shall, and shall
cause each of their respective Subsidiaries to, (a) conduct its
business in good faith in the usual, regular and ordinary course
consistent with past practice, (b) use reasonable efforts to
maintain and preserve intact its business organization, employees
and advantageous business relationships and, except as otherwise
contemplated by the agreements listed on Schedule 3.18 to the TSX
Disclosure Schedules, retain the services of its key officers and
key employees, it being understood that so long as TSX uses such
reasonable efforts the failure of any officer or employee of TSX
to remain an officer or employee of TSX or any TSX Subsidiary
shall not constitute a breach of this covenant, and (c) take no
action which would adversely affect or delay the ability of
either ANTEC or TSX to obtain any necessary approvals of any
Regulatory Agency or other governmental authority required for
the transactions contemplated hereby or to perform its covenants
and agreements under this Agreement.
33
5.2 FORBEARANCES. During the period from the date of
this Agreement to the Effective Time, except as set forth in the
ANTEC Disclosure Schedules or the TSX Disclosure Schedules, as
the case may be, or, except as expressly contemplated or
permitted by this Agreement, neither ANTEC nor TSX shall, or
shall permit any of their respective Subsidiaries to, without the
prior written consent of the other:
(a) other than in the ordinary course of business
consistent with past practice, (i) incur any indebtedness
for borrowed money (other than pursuant to existing lines of
credit or short-term indebtedness incurred in the ordinary
course of business consistent with past practice,
indebtedness of ANTEC to any of the ANTEC Subsidiaries or of
any of the ANTEC Subsidiaries to ANTEC, or indebtedness of
TSX to any of the TSX Subsidiaries or of any of the TSX
Subsidiaries to TSX, as the case may be) (ii) assume,
guarantee, endorse or otherwise as an accommodation become
responsible for the obligations of any other individual,
corporation or other entity, or (iii) make any loan or
advance;
(b) (i) adjust, split, combine or reclassify any
capital stock, (ii) make, declare or pay any dividend or
make any other distribution on, or directly or indirectly
redeem, purchase or otherwise acquire, any shares of its
capital stock or any securities or obligations convertible
into or exchangeable for any shares of its capital stock,
(iii) grant any stock appreciation rights or grant any
individual, corporation or other entity any right to acquire
any shares of its capital stock, or (iv) issue any
additional shares of capital stock except pursuant to the
exercise of stock options or warrants outstanding as of the
date hereof, including the 117,656 stock options reflected
in Schedule 3.2 to the TSX Disclosure Schedules, except that
(y) in January 1997, consistent with its prior practices,
ANTEC may grant stock options, SAR or other benefits to
employees of ANTEC pursuant to any ANTEC employee stock
option or other benefit plan, and (z) provided that Tele-
Communications, Inc. waives its preemptive rights with
respect thereto in the event the Merger is consummated, from
time to time TSX may in the ordinary course of business
grant each supervisory (or more senior) employee hired
subsequently to the date hereof, under its Long-Term
Incentive Compensation Program, stock options to purchase up
to 5,000 shares of TSX Common Stock, but not in excess of
40,000 in the aggregate.
(c) sell, transfer, mortgage, encumber or
otherwise dispose of any of its properties or assets to any
34
individual, corporation or other entity other than a
Subsidiary, or cancel, release or assign any indebtedness to
any such person or any claims held by any such person,
except in the ordinary course of business consistent with
past practice or pursuant to contracts or agreements in
force at the date of this Agreement;
(d) except for transactions in the ordinary
course of business consistent with past practice or pursuant
to contracts or agreements in force at the date of this
Agreement, make any material investment either by purchase
of stock or securities, contributions to capital, property
transfers, or purchase of any property or assets of any
other individual, corporation or other entity other than a
Subsidiary thereof or any existing joint venture;
(e) except for transactions in the ordinary
course of business consistent with past practice, enter into
or terminate any material contract or agreement, or make any
change in any of its material leases or contracts, other
than renewals of contracts and leases without material
adverse changes of terms;
(f) other than in the ordinary course of business
consistent with past practice, increase in any manner the
compensation or fringe benefits of any of its employees or
pay any pension or retirement allowance not required by any
existing plan or agreement to any such employees or become a
party to, amend or commit itself to any pension, retirement,
profit-sharing or welfare benefit plan or agreement or
employment agreement with or for the benefit of any
employee, except that ANTEC may adopt and, if it deems
appropriate, submit for stockholder approval a new stock
option or other stock based incentive plan or may increase
the number of shares or interests issuable under existing
plans. Without by implication limiting the foregoing, no
payments other than as set forth in Schedule 3.18 of the TSX
Disclosure Schedules shall be made with respect to officers
of TSX;
(g) accelerate the vesting of any stock options
or other stock-based compensation or any other compensation
related benefits;
(h) settle any claim, action or proceeding
involving money damages, except in the ordinary course of
business consistent with past practice;
(i) take any action that would prevent or impede
the Merger from qualifying (i) for "pooling of interests"
35
accounting treatment or (ii) as a reorganization within the
meaning of Section 368 of the Code;
(j) amend its certificate of incorporation or
articles of incorporation, as the case may be, or its
bylaws, except that ANTEC may increase its number of
authorized shares of ANTEC Common Stock;
(k) take any action that is intended or may
reasonably be expected to result in any of its
representations and warranties set forth in this Agreement
being or becoming untrue in any material respect at any time
prior to the Effective Time, or in any of the conditions to
the Merger set forth in Article VII not being satisfied or
in a violation of any provision of this Agreement, except,
in every case, as may be required by applicable law; or
(l) agree to, or make any commitment to, take any
of the actions prohibited by this Section 5.2.
ARTICLE VI
ADDITIONAL AGREEMENTS
---------------------
6.1 REGULATORY MATTERS; COOPERATION WITH RESPECT TO
FILING.
(a) (i) ANTEC and TSX shall promptly prepare and
file with the SEC the Joint Proxy Statement, (ii) ANTEC
shall promptly prepare and file with the SEC the S-4, in
which the Joint Proxy Statement will be included as a
prospectus, and (iii) ANTEC and TSX shall promptly prepare
and file pre-merger notification forms with the Federal
Trade Commission and the U.S. Department of Justice under
the HSR Act. Each of ANTEC and TSX shall use all reasonable
efforts to have the S-4 declared effective under the
Securities Act as promptly as practicable after such filing
and to mail or deliver the Joint Proxy Statement to their
respective stockholders. ANTEC and TSX shall also use all
reasonable efforts to obtain all necessary state securities
law or "Blue Sky" permits and approvals required to carry
out the transactions contemplated by this Agreement, and TSX
shall furnish all information concerning TSX and the holders
of the TSX Common Stock, as may be reasonably requested in
connection with any such action. In the event that the
fairness opinion of ▇▇▇▇▇ & Company Incorporated received by
TSX's Board of Directors is subsequently withdrawn, the S-4
shall be amended to disclose such withdrawal.
36
(b) The parties hereto shall cooperate with each
other and shall each use reasonable efforts to promptly
prepare and file all necessary documentation, to effect all
applications, notices, petitions and filings, to obtain as
promptly as practicable all permits, consents, approvals and
authorizations of all third parties and Governmental
Entities which are necessary or advisable to consummate the
transactions contemplated by this Agreement (including,
without limitation, the Merger), and to comply with the
terms and conditions of all such permits, consents,
approvals and authorizations of all such Governmental
Entities. ANTEC and TSX shall have the right to review in
advance, and, to the extent practicable, each will consult
the other on, in each case subject to applicable laws
relating to the exchange of information, all the information
relating to ANTEC or TSX, as the case may be, and any of
their respective Subsidiaries, which appears in any filing
made with, or written materials submitted to, any third
party or any Governmental Entity in connection with the
transactions contemplated by this Agreement. In exercising
the foregoing right, each of the parties hereto shall act
reasonably and as promptly as practicable. The parties
hereto agree that they will consult with each other with
respect to the obtaining of all permits, consents, approvals
and authorizations of all third parties and Governmental
Entities necessary or advisable to consummate the
transactions contemplated by this Agreement, and each party
will keep the other apprised of the status of matters
relating to completion of the transactions contemplated
herein.
(c) ANTEC and TSX shall, upon request, furnish
each other with all information concerning themselves, their
Subsidiaries, directors, officers and stockholders and such
other matters as may be reasonably necessary or advisable in
connection with the Joint Proxy Statement, the S-4 or any
other statement, filing, notice or application made by or on
behalf of ANTEC or TSX or any of their respective
Subsidiaries to any Governmental Entity in connection with
the Merger and the other transactions contemplated by this
Agreement. Each of ANTEC and TSX covenants and agrees that
none of the information which is furnished by ANTEC for
inclusion, or which is included, in the S-4, the Joint Proxy
Statement or any other statement, filing, notice or
application made by or on behalf of ANTEC or TSX or any of
their respective Subsidiaries to any Governmental Entity in
connection with the Merger and the other transactions
contemplated by this Agreement will, at the respective times
such documents are filed and, in the case of the S-4, when
it becomes effective and, with respect to the Joint Proxy
37
Statement, when mailed or at the time of the meetings of the
stockholders of ANTEC and TSX, be false or misleading with
respect to any material fact or shall omit to state any
material fact necessary in order to make the statements
therein, in light of the circumstances in which they were
made, not misleading. Notwithstanding the foregoing, ANTEC
shall have no responsibility for the truth or accuracy of
any information with respect to TSX or the TSX Subsidiaries
included in the S-4, the Joint Proxy Statement, or any other
statement, filing, notice or application filed with any
Governmental Entity in connection with the Merger and the
other transactions contemplated by this Agreement, and TSX
shall have no responsibility for the truth or accuracy of
any information with respect to ANTEC or the ANTEC
Subsidiaries included in the S-4, the Joint Proxy Statement,
or any other statement, filing, notice or application filed
with any Governmental Entity in connection with the Merger
and the other transactions contemplated by this Agreement.
(d) ANTEC and TSX shall promptly advise one
another upon receiving any communication from any
Governmental Entity whose consent or approval is required
for consummation of the transactions contemplated by this
Agreement which causes such party to believe that there is a
reasonable likelihood that any Requisite Regulatory Approval
will not be obtained or that the receipt of any such
approval will be materially delayed.
6.2 ACCESS TO INFORMATION.
(a) Upon reasonable notice, each of ANTEC and TSX
shall, and shall cause each of their respective Subsidiaries
to, afford to the officers, employees, accountants, counsel
and other representatives of the other party, access, during
normal business hours during the period prior to the
Effective Time, to all its properties, books, contracts,
commitments and records and, during such period, each of
ANTEC and TSX shall, and shall cause their respective
Subsidiaries to, make available to the other party (i) a
copy of each report, schedule, registration statement and
other document filed or received by it during such period
pursuant to the requirements of federal securities laws or
federal or state banking laws and (ii) all other information
concerning its business, properties and personnel as such
party may reasonably request, including, without limitation,
minute books. Neither ANTEC nor TSX nor any of their
respective Subsidiaries shall be required to provide access
to or to disclose information where such access or
disclosure would (i) violate or prejudice the rights of
ANTEC's or TSX's, as the case may be, customers or
38
contravene any law, rule, regulation, order, judgment,
decree, fiduciary duty or binding agreement entered into
prior to the date of this Agreement, or (ii) impair any
attorney client privilege of the disclosing party. The
parties hereto will make appropriate substitute disclosure
arrangements under circumstances in which the restrictions
of the preceding sentence apply.
(b) Each of ANTEC and TSX shall hold all
information furnished by or on behalf of the other party or
any of such party's Subsidiaries or representatives pursuant
to Section 6.2(a) in confidence and shall return all
documents containing any information concerning the
properties, business and assets of each other party that may
have been obtained in the course of negotiations or
examination of the affairs of each other party either prior
or subsequent to the execution of this Agreement (other than
such information as shall be in the public domain or
otherwise ascertainable from public or outside sources).
Each of ANTEC and TSX shall use such information solely for
the purpose of conducting business, legal and financial
reviews of the other party and for such other purposes as
may be related to this Agreement. Nothing in this Agreement
supersedes or otherwise affects the Confidentiality
Agreement, dated as of August 16, 1996, between ANTEC and
TSX, which shall remain in full force and effect in
accordance with its terms. Notwithstanding the foregoing,
restrictions contained in Section 2.7 of such
Confidentiality Agreement shall not apply to ANTEC or TSX,
as the case may be, after (a) the commencement by a third
party, who is not an affiliate of ANTEC or TSX, as the case
may be, or announcement by such third party of an intent to
commence, a tender offer or exchange offer for 10% or more
of the outstanding voting securities of the other party; (b)
the acquisition by any person or group other than ANTEC or
TSX, as the case may be, or any affiliate thereof, of
beneficial ownership of more than 10% of the outstanding
voting securities of the other party, other than
institutional investors who are eligible to file a Schedule
13G with respect to its holdings; or (c) the entry of the
other party into any agreement or letter of intent providing
for a sale of all or substantially all of its assets or a
merger or other business combination, as a result of which
the holders of its outstanding voting securities immediately
prior thereto would hold less than 60% of the outstanding
voting securities of the surviving corporation.
(c) No investigation by either of the parties or
their respective representatives shall affect the
representations and warranties of the other set forth
39
herein. Without limitation of the foregoing, each party
shall promptly notify the other party of any information
obtained by such party during the course of any due
diligence conducted by such party or its representatives in
accordance with Section 6.2(a) which is materially
inconsistent with any representation or warranty made by the
other party under this Agreement; provided, however, that
either party's failure to provide such notice to the other
party shall not, in turn, be deemed to constitute a material
breach of such party's obligations under this Agreement.
6.3 STOCKHOLDERS' APPROVALS. Each of ANTEC and TSX
shall call a meeting of its stockholders to be held as soon as
reasonably practicable for the purpose of voting upon this
Agreement, and, subject to the terms and conditions of this
Agreement, each of ANTEC and TSX shall use reasonable efforts to
cause such meetings to occur on the same date and each shall use
all reasonable efforts to obtain stockholders approval of this
Agreement and the Merger. ANTEC shall cause Merger Sub to
approve the Merger and all related transactions.
6.4 LEGAL CONDITIONS TO MERGER. Each of ANTEC and TSX
shall, and shall cause its Subsidiaries to, use reasonable
efforts (a) to take, or cause to be taken, all actions necessary,
proper or advisable to comply promptly with all legal
requirements which may be imposed on such party or its
Subsidiaries with respect to the Merger and, subject to the
conditions set forth in Article VII hereof, to consummate the
transactions contemplated by this Agreement and (b) to obtain
(and to cooperate with the other party to obtain) any consent,
authorization, order or approval of, or any exemption by, any
Governmental Entity and any other third party which is required
to be obtained by ANTEC or TSX or any of their respective
Subsidiaries in connection with the Merger and the other
transactions contemplated by this Agreement.
6.5 AFFILIATES; PUBLICATION OF COMBINED FINANCIAL
RESULTS.
(a) To the extent not delivered prior to the date
hereof, each of ANTEC and TSX shall use reasonable efforts
to cause each director, executive officer and other person
who is an "affiliate" (for purposes of Rule 145 under the
Securities Act, for purposes of the tax treatment of the
Merger, and for purposes of qualifying the Merger for
"pooling of interests" accounting treatment) of such party
to deliver to the other party hereto, not later than 30 days
after the date of this Agreement, a written agreement, in
the form of Exhibit C, providing, among other things, that
such person will not sell, pledge, transfer or otherwise
40
dispose of (i) any shares of ANTEC Common Stock or TSX
Common Stock held by such "affiliate," except to the extent
and under the conditions permitted therein, during the
period commencing 30 days prior to the Merger and ending at
the time of the publication of financial results covering at
least 30 days of combined operations of ANTEC and TSX, and
(ii) any shares of ANTEC Common Stock to be received by such
"affiliate" in the Merger, except in compliance with the
applicable provisions of the Securities Act and the rules
and regulations thereunder.
(b) ANTEC shall use reasonable efforts to publish
as promptly as reasonably practicable but in no event later
than 90 days after the end of the first month after the
Effective Time in which there are at least 30 days of post-
Merger combined operations (which month may be the month in
which the Effective Time occurs), combined sales and net
income figures as contemplated by and in accordance with the
terms of SEC Accounting Series Release No. 135.
6.6 LISTING OF ANTEC COMMON STOCK. ANTEC shall file
an application with The Nasdaq Stock Market for approval to list
the shares of ANTEC Common Stock on The Nasdaq Stock Market's
National Market, subject to official notice of issuance, and
ANTEC shall use all reasonable efforts to have such application
approved prior to the Effective Time.
6.7 INDEMNIFICATION; DIRECTORS' AND OFFICERS'
INSURANCE.
(a) For a period of six years after the Effective
Time, or, if shorter, for so long as TSX is a Nevada
corporation, ANTEC shall not cause or permit any amendment,
repeal or other modification of the provisions of
(i) Article TENTH of the articles of
incorporation of the Resulting Corporation, as set
forth in Exhibit A attached hereto, or
(ii) Article VI of the By-laws of the
Resulting Corporation, as set forth in Exhibit B
attached hereto,
in either case in any manner that would materially adversely
affect the rights thereunder of individuals who at any time
prior to the Effective Time were directors, officers,
employees or agents of TSX or any of its subsidiaries or
affiliates or who are otherwise entitled to indemnification
pursuant to such provisions in respect of actions or
omissions occurring at or prior to the Effective Time
41
(including, without limitation, the transactions
contemplated by this Agreement), unless such modification is
required by the NRS or applicable federal law, and then only
to the extent of such applicable requirements of the NRS or
federal law. To the extent TSX is unable for any reason
(including but not limited to its failure to remain a Nevada
corporation) to fulfill its obligations under the provisions
of the articles of incorporation set forth in Exhibit A or
the by-law provisions set forth in Exhibit B, ANTEC agrees
to pay, perform and discharge all such obligations.
(b) (i) Prior to the Effective Time, to the
extent any Claim (as defined below) arises out of the
approval by the Board of Directors of TSX of this Agreement
and the transactions contemplated hereby and this Agreement
is not terminated by ANTEC pursuant to Section 8.1(b)(ii)
based upon a material breach in the representations,
warranties or covenants of TSX or the failure of TSX to
comply with its obligations under this Agreement, ANTEC
shall, and otherwise TSX shall, and (ii) from and after the
Effective Time ANTEC and TSX jointly and severally shall
indemnify, defend and hold harmless each person who is now,
has been at any time prior to the date of this Agreement or
becomes prior to Effective Time a director, officer,
employee or agent of TSX or any of its subsidiaries, or is
or was serving at the request of TSX as a director, officer,
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise (collectively, the
"Indemnified Parties") against all losses, claims, damages,
liabilities, expenses (including but not limited to
reasonable attorneys fees), judgments, fines and amounts
that are paid in settlement of, with the approval of the
indemnifying party (which approval shall not unreasonably be
delayed or withheld), or otherwise in connection with any
claim, action, suit, proceeding or investigation (a
"Claim"), based in whole or in part on the fact that such
Person is or was a director, officer, employee or agent of
TSX or any of its subsidiaries or is or was serving at the
request of TSX as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or
other enterprise and arising out of actions or omissions
occurring at or prior to the Effective Time (including,
without limitation, the transactions contemplated by this
Agreement), whether or not such Claim was asserted prior to,
at or after the Effective Time, in each case to the fullest
extent permitted under the NRS (and shall pay expenses in
advance of the final disposition of any such Claim to each
Indemnified Party to the fullest extent permitted under the
NRS, upon receipt from the Indemnified Party to whom
expenses are advanced of an undertaking to repay such
42
advances if it is ultimately determined by a court of
competent jurisdiction that he is not entitled to be
indemnified under the NRS).
(c) Without limiting the generality of the
foregoing, in the event any Claim is brought against any
Indemnified Party (whether arising before or after the
Effective Time):
(i) the Indemnified Party may retain counsel
satisfactory to him with the consent of TSX and ANTEC,
which consent of TSX and ANTEC with respect to such
counsel retained by the Indemnified Party may not be
unreasonably withheld or delayed. The Indemnified
Parties as a group may retain only one law firm to
represent them with respect to each such Claim unless
there is, under applicable standards of professional
conduct, a conflict on any significant issue between
the positions of any two or more Indemnified Parties;
(ii) TSX (or, after the Effective Time,
ANTEC) shall pay all reasonable fees and expenses of
such counsel for the Indemnified Party promptly as
statements therefor are received;
(iii) TSX (or, after the Effective Time,
ANTEC) will use all reasonable efforts to assist in the
vigorous defense of any such matter, provided that none
of TSX or ANTEC shall be liable for any settlement of
any Claim effected without its written consent, which
consent, however, shall not be unreasonably withheld or
delayed; and
(iv) Any determination to be made as to
whether any Indemnified Party has met any standard of
conduct imposed by law or the articles of incorporation
or By-laws of the Resulting Corporation shall be made
by legal counsel reasonably acceptable to such
Indemnified Party and to ANTEC retained at the expense
of ANTEC and the Indemnified Party based upon such
legal counsel's assessment of the relative merits of
the positions of the Indemnified Party and ANTEC.
Notwithstanding the foregoing, ANTEC shall have
the right to assume the defense of any Claim and upon such
assumption ANTEC shall not be liable to any Indemnified
Party for any legal expenses of other counsel or any other
expenses subsequently incurred by any Indemnified Party in
connection with the defense thereof, except that if ANTEC
subsequently abandons such defense or counsel for the
43
Indemnified Parties reasonably advises the Indemnified
Parties that there is, under applicable standards of
professional conduct, a conflict on any significant issue of
interest between ANTEC and the Indemnified Parties, the
Indemnified Parties may retain counsel reasonably
satisfactory to them after consultation with ANTEC, and
ANTEC shall pay the reasonable fees and expenses of such
counsel for the Indemnified Parties.
Any Indemnified Party wishing to claim
indemnification under this Section 6.7, upon learning of any
such Claim, shall notify TSX (but any failure so to notify
shall not relieve TSX, ANTEC or the Resulting Corporation
from any liability which it may have under this Section 6.7,
except to the extent such failure prejudices such party),
and shall deliver to TSX, ANTEC an undertaking to repay such
advances if it is ultimately determined by a court of
competent jurisdiction that he is not entitled to be
indemnified under the NRS.
(d) On or prior to the Closing Date, TSX shall
obtain an extension of or "tail" to its existing Directors'
and Officers' Liability Insurance Policy for a period of
five years from and after the Effective Time for a single
premium not exceeding $548,000 (the "D&O Policy").
(e) ANTEC and the Indemnified party shall
cooperate in the defense and settlement of any Claim made
against them based upon or arising out of any actual or
alleged wrongful act (as such term may be defined in the
applicable D&O Policy) occurring at or prior to the
Effective Time. ANTEC and TSX shall provide any reasonable
assistance or information that may be required by an
Indemnified Party in connection with any such Claim.
Neither ANTEC, TSX nor any of their respective
representatives shall cause any action or inaction that
could reasonably be expected to jeopardize or otherwise
impair the rights or ability of the Indemnified Parties to
recover loss amounts due under the D&O Policy.
(f) In the event ANTEC or any of its successors
or assigns (i) consolidates with or merges into any other
person and shall not be the continuing or surviving
corporation or entity of such consolidation or merger, or
(ii) transfers or conveys all or substantially all of its
properties and assets to any person, then and in each such
case, to the extent necessary, proper provision shall be
made so that the successors and assigns of ANTEC assume the
obligations set forth in this Section 6.7.
44
(g) The provisions of this Section 6.7 are
intended to be for the benefit of, and shall be enforceable
by, each Indemnified Party and his or her heirs, legal
representatives and successors.
6.8 ADDITIONAL AGREEMENTS. In case at any time after
the Effective Time any further action is necessary or desirable
to carry out the purposes of this Agreement or to vest ANTEC with
full title to all properties, assets, rights, approvals,
immunities and franchises of any of the parties to the Merger,
the proper officers and directors of each party to this Agreement
and their respective Subsidiaries shall take all such necessary
action as may be reasonably requested by, and at the sole expense
of, ANTEC.
6.9 ADVICE OF CHANGES. Between the date hereof and
the Effective Time, ANTEC and TSX shall promptly provide notice
to the other party of any change or event having a Material
Adverse Effect on it or which it believes would or would be
reasonably likely to cause or constitute a material breach of any
of its representations, warranties or covenants contained herein
or which would cause any of its representations or warranties
contained in this Agreement to be untrue or inaccurate, or any of
its covenants, conditions or agreements contained in this
Agreement not to be complied with or satisfied. The delivery of
any notice pursuant to this Section 6.9 shall not limit or
otherwise affect the remedies available hereunder to the party
receiving such notice.
6.10 PERFORMANCE OF CONTRACTS. If not performed by TSX
prior to the Effective Time, following the Effective Time ANTEC
shall perform and comply with the contracts or other arrangements
with the officers and other affiliates of TSX as described in
Schedule 3.18 to the TSX Disclosure Schedules.
6.11 NO CONDUCT INCONSISTENT WITH THIS AGREEMENT.
(a) Each of ANTEC and TSX and their respective
Subsidiaries shall, and ANTEC and TSX shall cause their
respective officers and directors to, and each of ANTEC and TSX
shall use all reasonable efforts to cause its employees,
affiliates, representatives, agents and advisors to, immediately
cease any existing discussions or negotiations with respect to
any of the following involving ANTEC or TSX, as the case may be,
or any of their respective subsidiaries: (i) any merger,
consolidation, share exchange, business combination, or other
similar transaction in which holders of ANTEC or TSX, as the case
may be, would hold less than a majority of the voting interests
in the surviving entity, (ii) any sale, lease, exchange,
mortgage, pledge, transfer or other disposition of 10% or more of
45
the assets of the company and its subsidiaries taken as a whole,
in a single transaction or series of transactions, (iii) any
tender offer or exchange offer for 10% or more of the outstanding
shares of Common Stock or the filing of a registration statement
under the Securities Act in connection therewith, (iv) the
issuance, sale or other disposal (including by way of merger,
consolidation, share exchange or any similar transaction) of
securities representing, or convertible into or exercisable for
the acquisition of, 10% or more of the voting power of ANTEC or
TSX or any of their respective Subsidiaries or (v) any public
announcement of a proposal, plan or intention to do any of the
foregoing or any agreement to engage in any of the foregoing
(collectively, an "Alternate Transaction"), other than with each
other.
(b) Neither ANTEC nor TSX nor any of their
respective Subsidiaries shall, and ANTEC and TSX shall cause
their respective officers and directors not to, and each of ANTEC
and TSX shall use all reasonable efforts to cause its employees,
affiliates, representatives, agents and advisors not to, directly
or indirectly, encourage, solicit, initiate, engage or
participate in any discussions or negotiations with, or provide
any information or access to information to, any corporation,
partnership, person or other entity or group, other than the
other party to this Agreement, concerning any Alternate
Transaction.
(c) Each of ANTEC and TSX shall promptly inform
the other of any inquiry, offer or proposal (including the terms
thereof and the identity of the party making such inquiry, offer
or proposal) that it receives in respect of any Alternate
Transaction, other than from each other, and shall furnish to the
other a copy of any such inquiry, offer or proposal that is in
writing.
(d) Nothing contained herein shall prohibit
either ANTEC or TSX or their respective Boards of Directors from
taking and disclosing to their stockholders a position with
respect to a tender offer by a third party pursuant to Rules
14d-9 and 14e-2(a) promulgated under the Exchange Act, or from
making such disclosure to their respective stockholders which, in
the judgment of their Boards of Directors with the advice of
counsel, may be required under applicable law.
6.12 REGISTRATION OF ANTEC COMMON STOCK. ANTEC will
file with the SEC a registration statement on Form S-8 covering
(or amend a currently effective S-8 so that it covers) the
issuance by ANTEC of ANTEC Common Stock upon the exercise of
options held by TSX's directors and employees that prior to the
Effective Time were exercisable to purchase TSX Common Stock and
46
will use all reasonable efforts to have such S-8 (or amendment)
declared effective by the SEC prior to the Effective Time.
6.13 AMENDMENT TO REGISTRATION RIGHTS AGREEMENT. Upon
the execution of this Agreement, ANTEC will deliver to Tele-
Communications, Inc. an executed copy of a Registration Rights
Agreement substantially in the form attached hereto as Exhibit D.
6.14 ACCOUNTING TREATMENT. The parties agree that the
Merger will be accounted for on the "pooling of interests" method
under the requirements of Opinion No. 16 (BUSINESS COMBINATIONS)
of the Accounting Principles Board of the American Institute of
Certified Public Accountants, as amended.
ARTICLE VII
CONDITIONS PRECEDENT
--------------------
7.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT
THE MERGER. The respective obligation of each party to effect
the Merger shall be subject to the satisfaction at or prior to
the Effective Time of the following conditions:
(a) STOCKHOLDER APPROVAL. This Agreement and the
transactions contemplated hereby shall have been approved
and adopted by the respective requisite affirmative votes of
the holders of TSX Common Stock and ANTEC Common Stock
entitled to vote thereon.
(b) NASDAQ-NMS LISTING. The shares of ANTEC
Common Stock which shall be issued to the stockholders of
TSX upon consummation of the Merger shall have been
authorized for listing on The Nasdaq Stock Market's National
Market, subject to official notice of issuance.
(c) OTHER APPROVALS. All regulatory approvals
required to consummate the transactions contemplated hereby
shall have been obtained, on terms and conditions reasonably
satisfactory to each of TSX and ANTEC, and shall remain in
full force and effect and all statutory waiting periods in
respect thereof shall have expired (all such approvals and
the expiration of all such waiting periods being referred to
herein as the "Requisite Regulatory Approvals").
(d) THIRD PARTY APPROVALS. All authorizations,
consents and approvals of any third party which if not
obtained would have a Material Adverse Effect on ANTEC or a
47
Material Adverse Effect on TSX shall have been obtained and
shall be in full force and effect.
(e) REGISTRATION STATEMENTS. The S-4 shall have
become effective under the Securities Act and no stop order
suspending the effectiveness of the S-4 shall have been
issued and no proceedings for that purpose shall have been
initiated or, to the knowledge of ANTEC or TSX, threatened
by the SEC.
(f) NO INJUNCTIONS OR RESTRAINTS; ILLEGALITY. No
order, injunction or decree issued by any court or agency of
competent jurisdiction or other legal restraint or
prohibition (an "Injunction") preventing the consummation of
the Merger or any of the other transactions contemplated by
this Agreement shall be in effect. No statute, rule,
regulation, order, injunction or decree shall have been
enacted, entered, promulgated or enforced by any
Governmental Entity which prohibits, materially restricts or
makes illegal consummation of the Merger.
(g) FEDERAL TAX OPINION. TSX and ANTEC shall
each have received opinions from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ and
Kemp, Smith, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C., (or such other counsel
as the parties may agree upon), in form and substance
reasonably satisfactory to each, dated as of the Effective
Time, substantially to the effect that, on the basis of
facts, representations and assumptions set forth in such
opinion which are consistent with the state of facts
existing at the Effective Time:
(i) The Merger will constitute a tax free
reorganization under Section 368(a)(i)(A) of the Code,
and TSX and ANTEC will each be a party to the
reorganization;
(ii) No gain or loss will be recognized by
TSX or ANTEC, as the case may be, as a result of the
Merger;
(iii) No gain or loss will be recognized by
the stockholders of TSX who exchange their TSX Common
Stock for ANTEC Common Stock pursuant to the Merger;
(iv) The tax basis of the ANTEC Common Stock
received by stockholders who exchange all of their TSX
Common Stock solely for ANTEC Common Stock in the
Merger will be the same as the tax basis of the TSX
Common Stock surrendered in exchange therefor; and
48
(v) The holding period of the ANTEC Common
Stock received by stockholders of TSX in the Merger
will include the period during which the shares of TSX
Common Stock surrendered in exchange therefor were
held; provided, such TSX Common Stock was held as a
capital asset by the holder of such TSX Common Stock or
ANTEC Common Stock at the Effective Time.
In rendering such opinion, counsel may require and rely upon
representations contained in certificates of officers of TSX
or ANTEC, as the case may be, and others.
(h) POOLING OF INTERESTS. TSX and ANTEC shall
have received a copy of an opinion of Ernst & Young LLP,
dated as of the Effective Time, in substantially the form of
Exhibit E, or otherwise reasonably satisfactory to TSX and
ANTEC, addressed to ANTEC that, based on such procedures as
were deemed relevant, the Merger will qualify as a pooling
of interests under generally accepted accounting principles.
7.2 CONDITIONS TO OBLIGATIONS OF TSX. The obligation
of TSX to effect the Merger is also subject to the satisfaction,
or waiver by TSX, at or prior to the Effective Time of the
following conditions:
(a) REPRESENTATIONS AND WARRANTIES. The
representations and warranties of ANTEC set forth in this
Agreement shall be true and correct in all material respects
as of the date of this Agreement and (except to the extent
such representations and warranties speak as of an earlier
date or to the extent changes to the underlying facts are
expressly authorized by this Agreement) as of the Closing
Date as though made on and as of the Closing Date.
(b) PERFORMANCE OF OBLIGATIONS OF ANTEC. ANTEC
shall have performed in all material respects all
obligations required to be performed by it under this
Agreement at or prior to the Closing Date, and TSX shall
have received a certificate signed on behalf of ANTEC by its
President or a Vice President certifying as to the matters
specified in (a), (b) and (c) of this Section 7.2, and a
certificate from the Secretaries of ANTEC and Merger Sub
certifying as to (i) the content and continuing
effectiveness as of the Closing Date of the resolutions of
the sole stockholder of Merger Sub and the boards of
directors of ANTEC and Merger Sub approving this Agreement
and the transactions contemplated hereby, and (ii) the fact
that this Agreement and the transactions contemplated hereby
have been duly approved by the requisite vote of the
49
stockholders of ANTEC in accordance with the certificate of
incorporation of ANTEC, the rules and regulations of the
Nasdaq Stock Market, and the Delaware General Corporate Law
and that such approval is in full force and effect.
(c) NO MATERIAL ADVERSE CHANGE. Since the date
of this Agreement, (i) no event shall have occurred which
has had a Material Adverse Effect on ANTEC, and (ii) no
condition (other than general economic or competitive
conditions), event, circumstances, fact or other occurrence
shall have occurred that may reasonably be expected to have
or result in such a Material Adverse Effect on ANTEC.
(d) OPINIONS OF COUNSEL TO ANTEC. TSX shall have
received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇, counsel to ANTEC, and
the General Counsel of ANTEC, the opinions dated the Closing
Date, in substantially the form of Exhibit F, and from
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Nevada counsel to ANTEC
and TSX, an opinion, dated the Closing Date, in
substantially the form of Exhibit H.
(e) COMFORT LETTERS. TSX shall have received
from Ernst & Young LLP "comfort letters" dated the date of
mailing of the Joint Proxy Statement and the Closing Date,
covering matters customary to transactions such as the
Merger and in form and substance reasonably satisfactory to
TSX.
(f) AVAILABILITY OF POOLING. TSX shall have
received an opinion, dated the Closing Date, from Ernst &
Young LLP, in substantially the form of Exhibit I, or
otherwise reasonably satisfactory to TSX, that, based upon
such procedures as were deemed relevant, ANTEC qualifies as
an entity that may be a party to a business combination for
which the pooling of interests method of accounting would be
available.
7.3 CONDITIONS TO OBLIGATIONS OF ANTEC. The
obligation of ANTEC to effect the Merger is also subject to the
satisfaction, or waiver by ANTEC, at or prior to the Effective
Time of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES. The
representations and warranties of TSX set forth in this
Agreement shall be true and correct in all material respects
as of the date of this Agreement and (except to the extent
such representations and warranties speak as of an earlier
date or to the extent changes to the underlying facts are
expressly authorized by this Agreement) as of the Closing
Date as though made on and as of the Closing Date.
50
(b) PERFORMANCE OF OBLIGATIONS OF TSX. TSX shall
have performed in all material respects all obligations
required to be performed by it under this Agreement at or
prior to the Closing Date, and ANTEC shall have received a
certificate signed on behalf of TSX by its President or a
Vice President certifying as to the matters specified in
(a), (b) and (c) of this Section 7.3, and a certificate from
the Secretary of TSX certifying as to (i) the content and
continuing effectiveness as of the Closing Date of the
resolutions of the board of directors of TSX approving this
Agreement and the transactions contemplated hereby, and (ii)
the fact that this Agreement and the transactions
contemplated hereby have been duly approved by the requisite
vote of the stockholders of TSX in accordance with the
articles of incorporation of TSX and the NRS and that such
approval is in full force and effect.
(c) NO MATERIAL ADVERSE CHANGE. Since the date
of this Agreement, (i) no event shall have occurred which
has had a Material Adverse Effect on TSX, and (ii) no
condition (other than general economic or competitive
conditions), event, circumstances, fact or other occurrence
shall have occurred that may reasonably be expected to have
or result in such a Material Adverse Effect on TSX.
(d) OPINIONS OF COUNSEL TO TSX. ANTEC shall have
received from Kemp, Smith, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C., counsel
to TSX, an opinion, dated the Closing Date, in substantially
the form of Exhibit G, and from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, Nevada counsel to ANTEC and TSX, an opinion, dated
the Closing Date, in substantially the form of Exhibit H.
(e) COMFORT LETTERS. ANTEC shall have received
from KPMG Peat Marwick LLP "comfort letters" dated the date
of mailing of the Joint Proxy Statement and the Closing
Date, covering matters customary to transactions such as the
Merger and in form and substance reasonably satisfactory to
ANTEC.
(f) AVAILABILITY OF POOLING. ANTEC shall have
received an opinion, dated the Closing Date, from KPMG Peat
Marwick LLP, in substantially the form of Exhibit J, or
otherwise reasonably satisfactory to ANTEC, that, based upon
such procedures as were deemed relevant, TSX qualifies as an
entity that may be a party to a business combination for
which the pooling of interests method of accounting would be
available.
51
ARTICLE VIII
TERMINATION AND AMENDMENT
-------------------------
8.1 TERMINATION. This Agreement may be terminated
prior to the Effective Time:
(a) by mutual written consent of ANTEC and TSX;
or
(b) (i) by either ANTEC or TSX if the Merger
shall not have been consummated by April 30,1997 PROVIDED
that the right to terminate this Agreement under this
Section 8.1(b) shall not be available to any party whose
failure to fulfill any material obligation under this
Agreement has been a cause of or has resulted in the failure
of the Merger to occur on or before such date, and (ii) by
either ANTEC or TSX if there has been a material breach on
the part of the other party in the representations,
warranties or covenants of the other party set forth herein,
or any failure on the part of the other party to comply with
its obligations hereunder or any other events or
circumstances shall have occurred such that, in any case,
any of the conditions to the consummation of the Merger set
forth in Section 7.1 or Section 7.2 (as to termination by
TSX) or Section 7.1 and 7.3 (as to termination by ANTEC)
could not be satisfied on or prior to April 30, 1997; or
(c) by either ANTEC or TSX if a court of
competent jurisdiction or other Governmental Entity shall
have issued a nonappealable final order, decree or ruling or
taken any other action, in each case having the effect of
permanently restraining, enjoining or otherwise prohibiting
the Merger other than under any theory that this Agreement
or the transactions contemplated hereby, or their approval,
violate the fiduciary duties of the directors of ANTEC or
TSX; or
(d) by either ANTEC or TSX, if, at the meeting of
the stockholders of ANTEC (including any adjournment or
postponement), the requisite vote of the stockholders of
ANTEC in favor of the Merger and the resulting issuance of
shares shall not have been obtained; or
(e) by either ANTEC or TSX, if, at the meeting of
the stockholders of TSX (including any adjournment or
postponement), the requisite vote of the stockholders of TSX
in favor of this Agreement and the Merger shall not have
been obtained; or
52
(f) by ANTEC or TSX if a court of competent
jurisdiction or other Governmental Entity shall have issued
an order, decree or ruling or taken any other action, in
each case having the effect of restraining, enjoining or
otherwise prohibiting the Merger and compelling TSX to
consider an Alternate Transaction because it could be more
favorable to its stockholders than the transactions
contemplated by this Agreement (a "Superior Proposal");
(g) by ANTEC or TSX if a court of competent
jurisdiction or other Governmental Entity shall have issued
an order, decree or ruling or taken any other action, in
each case having the effect of restraining, enjoining or
otherwise prohibiting the Merger and compelling ANTEC to
consider an Alternate Transaction because it could be a
Superior Proposal;
(h) by ANTEC if KPMG Peat Marwick LLP is unable
to provide the letter described in Section 7.3(f) because of
an error or omission in the information provided to Peat
Marwick LLP prior to the date hereof;
(i) by TSX if Ernst & Young LLP is unable to
provide the letter described in Section 7.2(f) because of an
error or omission in the information provided Ernst & Young
LLP prior to the date hereof.
8.2 EFFECT OF TERMINATION.
(a) In the event of the termination of this
Agreement pursuant to Section 8.1 of this Agreement, this
Agreement, except for the provisions of Sections 6.2(b),
6.7, 8.2, 9.1, 9.2 and 9.9, shall become void and have no
effect, without any liability on the part of any party or
its directors, officers or stockholders. Notwithstanding
the foregoing, except as provided in subsections (b) and (c)
below, nothing in this Section 8.2 shall relieve any party
to this Agreement of liability for a material breach of any
provision of this Agreement occurring prior to termination.
(b) In the event of the termination of this
Agreement by ANTEC or TSX pursuant to Section 8.1(e), (f),
or (h), then in any such case TSX will, within five business
days following any such termination by ANTEC, or in the case
of a termination by TSX at or prior to such termination, pay
to ANTEC, as liquidated damages, in exchange for a complete
release of any liabilities of TSX hereunder, in cash by wire
transfer in immediately available funds to an account
designated by ANTEC a termination fee in an amount equal to
$6,000,000 (such amount, the "Termination Fee").
53
(c) In the event of the termination of this
Agreement by ANTEC or TSX pursuant to Section 8.1(d), (g),
or (i), then in any such case ANTEC will, within five
business days following any such termination by TSX or in
the case of a termination by ANTEC at or prior to such
termination, pay to TSX, as liquidated damages, in exchange
for a complete release of any liabilities of ANTEC
hereunder, in cash by wire transfer in immediately available
funds to an account designated by TSX a termination fee in
an amount equal to the Termination Fee.
8.3 AMENDMENT. Subject to compliance with applicable
law, this Agreement may be amended by the parties hereto, by
action taken or authorized by their respective Boards of
Directors, at any time before or after approval of the matters
presented in connection with the Merger by the stockholders of
ANTEC or TSX; PROVIDED, HOWEVER, that after any approval of the
transactions contemplated by this Agreement by the respective
stockholders of ANTEC or TSX there may not be, without further
approval of such stockholders, any amendment of this Agreement
which changes the amount or the form of the consideration to be
delivered to the holders of TSX Common Stock hereunder. This
Agreement may not be amended except by an instrument in writing
signed on behalf of each of the parties hereto.
8.4 EXTENSION; WAIVER. At any time prior to the
Effective Time, the parties hereto, by action taken or authorized
by their respective Board of Directors, may, to the extent
legally allowed, (a) extend the time for the performance of any
of the obligations or other acts of the other parties hereto, (b)
waive any inaccuracies in the representations and warranties
contained herein or in any document delivered pursuant hereto,
and (c) waive compliance with any of the agreements or conditions
contained herein; PROVIDED, HOWEVER, that after any approval of
the transactions contemplated by this Agreement by the respective
stockholders of ANTEC or TSX, there may not be, without further
approval of such stockholders, any waiver of any portion of this
Agreement that changes the amount or the form of the
consideration to be delivered to the holders of TSX Common Stock
hereunder. Any agreement on the part of a party hereto to any
such waiver shall be valid only if set forth in a written
instrument signed on behalf of such party, but such waiver or
failure to insist on strict compliance with an obligation,
covenant, agreement or condition shall not operate as a waiver
of, or estoppel with respect to, any subsequent or other failure.
54
ARTICLE IX
GENERAL PROVISIONS
------------------
9.1 NON-SURVIVAL OF REPRESENTATIONS, WARRANTIES AND
AGREEMENTS. None of the representations, warranties, covenants
and agreements in this Agreement or in any instrument delivered
pursuant to this Agreement, which shall terminate in accordance
with their terms, shall survive the Effective Time, except for
those covenants and agreements contained herein and therein which
by their terms apply in whole or in part after the Effective
Time. Without by implication limiting the foregoing, none of the
directors or officers of the parties hereto shall have any
liability for any of the representations, warranties, covenants
and agreements contained herein.
9.2 EXPENSES. All costs and expenses incurred in
connection with this Agreement and the transactions contemplated
hereby shall be paid by the party incurring such expense,
PROVIDED, HOWEVER, that 60% of (i) all attorneys' fees incurred
by the parties in connection with the preparation and filing of
the Joint Proxy Statement, the S-4, or any other notice, filing,
or application with any Governmental Entity, Regulatory Agency or
SRO to be made by ANTEC or jointly by TSX and ANTEC, (ii) the
costs and expenses of printing and mailing the Joint Proxy
Statement, (iii) all filing and other fees paid to the Department
of Justice or Federal Trade Commission (in connection with the
HSR Act), the SEC, or any State Regulatory Agency in connection
with the Merger and the transactions contemplated by this
Agreement, and (iv) all filing and other fees relating to the
listing of the ANTEC Common Stock on The Nasdaq Stock Market's
National Market, shall be borne by ANTEC and the remainder shall
be borne by TSX in the event that this Agreement is terminated
prior to the Effective Time.
9.3 NOTICES. All notices and other communications
hereunder shall be in writing and shall be deemed given if
delivered personally, telecopied (with confirmation), mailed by
registered or certified mail (return receipt requested) or
delivered by a nationally recognized overnight courier service
(such as Federal Express) to the parties at the following
addresses (or at such other address for a party as shall be
specified by like notice):
55
(a) if to TSX, to:
TSX Corporation
▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Kemp, Smith, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
and
(b) if to ANTEC, to:
ANTEC Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
ANTEC Corporation
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
and
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
9.4 INTERPRETATION. When a reference is made in this
Agreement to Sections, Exhibits or Schedules, such reference
shall be to a section of or exhibit or schedule to this Agreement
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unless otherwise indicated. The table of contents and headings
contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this
Agreement. Whenever the words "include," "includes" or
"including" are used in this Agreement, they shall be deemed to
be followed by the words "without limitation." No provision of
this Agreement shall be construed to require TSX, ANTEC or any of
their respective Subsidiaries or affiliates to take any action
which would violate any applicable law, rule or regulation.
9.5 COUNTERPARTS. This Agreement may be executed in
counterparts, all of which shall be considered one and the same
agreement and shall become effective when counterparts have been
signed by each of the parties and delivered to the other parties,
it being understood that all parties need not sign the same
counterpart.
9.6 ENTIRE AGREEMENT. This Agreement (including the
documents and the instruments referred to herein) together with
the Confidentiality Agreement between ANTEC and TSX dated as of
August 16, 1996, constitute the entire agreement and supersede
all other agreements and understandings, both written and oral,
among the parties hereto with respect to the subject matter
hereof, including but not limited to the letter agreement between
the parties hereto dated September 26, 1996. The Confidentiality
Agreement, as amended hereby, shall survive any termination of
this Agreement.
9.7 GOVERNING LAW. This Agreement shall be governed
and construed in accordance with the laws of the State of Nevada,
without regard to any applicable conflicts of law, except to the
extent that the law of the State of Delaware shall apply to
certain matters of corporate law relating to ANTEC, and except to
the extent that state law is superseded by federal law. The
parties hereto consent to the exclusive venue and jurisdiction of
the Federal and state courts located in the State of Nevada and
agree not to institute any litigation regarding this Agreement or
the matters contemplated hereby in any other court.
9.8 SEVERABILITY. Any term or provision of this
Agreement which is invalid or unenforceable in any jurisdiction
shall, as to that jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without rendering invalid or
unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of
the terms or provisions of this Agreement in any other
jurisdiction. If any provision of this Agreement is so broad as
to be unenforceable, the provision shall be interpreted to be
only so broad as is enforceable.
57
9.9 PUBLICITY. Except as otherwise required by
applicable law or the rules of The Nasdaq Stock Market, neither
TSX nor ANTEC shall, or shall permit any of its Subsidiaries to,
issue or cause the publication of any press release or other
public announcement with respect to, or otherwise make any public
statement concerning, the transactions contemplated by this
Agreement without the consent of the other party, which consent
shall not be unreasonably withheld.
9.10 ASSIGNMENT; THIRD PARTY BENEFICIARIES. Neither
this Agreement nor any of the rights, interests or obligations of
the parties under this Agreement shall be assigned by any of the
parties hereto (whether by operation of law or otherwise) without
the prior written consent of the other parties. Subject to the
preceding sentence, this Agreement will be binding upon, inure to
the benefit of and be enforceable by the parties and their
respective successors and assigns. Except as otherwise
specifically provided in Section 6.7, this Agreement (including
the documents and instruments referred to herein) is not intended
to confer upon any person other than the parties hereto any
rights or remedies hereunder.
IN WITNESS WHEREOF, ANTEC, TSX and Merger Sub have
caused this Agreement to be executed by their respective officers
thereunto duly authorized as of the date first above written.
ANTEC CORPORATION TSX CORPORATION
By:/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President Title: President and Chief
Executive Officer
TSX ACQUISITION CORPORATION
By:/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President