Harbinger Group Inc.
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HRG GROUP, INC. filed this Form S-4/A on 08/15/1996
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<PAGE>   10
Zapata Corporation
July 22, 1996
Page 10

to find subsection (A)(iii) applicable to a merger because subsection (A)(i)
expressly applies to such a transaction.

        We note that the Court of Chancery, in Bacine v. Scharffenberger, C.A.
No. 7862 (Del. Ch. Dec. 11, 1984), applied a statutory sale of assets analysis
to determine whether a "sale" by a corporation of three of its wholly-owned
subsidiaries by means of a merger required a vote of the corporation's
stockholders under Section 271. In response to the defendants' position that
the transaction was a merger and should not be subject to Section 271's
requirements under the doctrine of independent legal significance, the
plaintiffs' asserted that "equity looks to the substance of a transaction and
not to its form, and the realities of modern business are such that the stock
of wholly-owned subsidiary corporations necessarily constitutes the assets of a
holding company . . . ." Slip op. at 7. The Court observed that "I must admit
that I find considerable logic in [plaintiffs'] proposition." Id.
Significantly, however, the Court did not adopt the plaintiffs' position, and
instead held that:

                conceding without deciding that it is true for the purpose of
                argument, I find that the transaction is still not one which
                appears to require the approval of [the corporation's]
                shareholders . . . because I cannot find from the facts of
                record that the transfer of the three subsidiaries will
                constitute a sale of "substantially all" of [the corporation's]

Id. We do not believe that Bacine would cause a Delaware court to find that the
Merger is subject to the Supermajority Vote. Bacine, which was decided in the
context of a motion for a preliminary injunction, did not actually hold that
the merger of a subsidiary would be viewed at the parent level as a sale of
assets subject to Section 271, but instead accepted that proposition arguendo
for purposes of its determination. Because the plaintiffs' position failed even
assuming that the transaction was viewed as a sale of assets, the Court never
had to decide whether, notwithstanding the Delaware Supreme Court's holding in
Sterling v. Mayflower Hotel, the merger should be deemed to be a sale of
assets. In addition, Bacine did not address a charter provision requiring a
supermajority vote, which the Delaware Supreme Court has held must be
interpreted literally and narrowly. Centaur Partners, 582 A.2d at 927.


        We are aware of no decision of a Delaware court which directly addresses
the question posed for our consideration,(5) and consequently the matter is not
completely free from

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        (5) We note that an action styled Pasternak v. Glazer, C.A. No. 15026,
seeking to enjoin the Merger on the grounds, inter alia, that the Supermajority
Vote requirement of Article Seventh is applicable to the Merger and will not be
complied with, has been filed in the Court of Chancery of the State of
Delaware. A hearing on plaintiff's motion for a 

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