EXHIBIT 99(D)
AGREEMENT
This agreement (this "Agreement") is made and entered into as of the 29th
day of April, 1998 by and among TCA Cable TV, Inc., a Texas corporation ("TCA"),
and Xxxxxx Trust Company, in its capacity as Independent Executor of and on
behalf of the Estate of Xxxxxx X. Xxxxxx, Deceased (the "Estate")and in its
capacity as sole Trustee of the Xxxxxx Property Trust.
RECITALS
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1. The Estate and the Trust collectively currently own and hold (or have
the right to acquire an aggregate of) 3,874,594 shares (the "Estate Shares") of
the Common Stock, $0.10 par value ("Common Stock") of TCA.
2. The Estate and the Trust desire to dispose of the Estate Shares.
3. Pursuant to Section 11.2 of the Last Will and Testament of Xxxxxx X.
Xxxxxx, TCA holds a right of first refusal (the "Right of First Refusal") with
respect to the disposition by the Estate of the Estate Shares owned and held by
the Estate.
4. TCA, in furtherance of the interests of all of its shareholders, desires
to assist the Estate and the Trust in the orderly disposition of the Estate
Shares.
NOW, THEREFORE, for and in consideration of the mutual promises and
covenants herein, the receipt and sufficiency of which is hereby acknowledged
and confessed, the parties hereto do hereby agree as follows:
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1. Registration Statement.
(a) Within two business days following the execution of this Agreement,
TCA shall file with the Securities and Exchange Commission (the "Commission") a
Registration Statement on Form S-3 (the "Registration Statement") substantially
in the form of Exhibit A attached hereto and incorporated herein, registering
the sale by the Estate and the Trust of up to 3,807,294 of the Estate Shares in
accordance with the plan of distribution set forth in the prospectus contained
in the Registration Statement under the title "Plan of Distribution". TCA shall
use its reasonable best efforts to have the Registration Statement declared
effective by the Commission and to maintain the effectiveness of the
Registration Statement for a period of 30 days following the date that the
Registration Statement is declared effective by the Commission, subject to
extension pursuant to paragraph 1(b) below (the "Registration Period").
Following the expiration of the Registration Period, TCA may, in its sole
discretion, withdraw the Registration Statement. Additionally, in the event that
during the term of this Agreement TCA determines that the Estate or the Trust
directly or indirectly has sold, transferred, pledged or otherwise disposed of
or is in the process of selling, transferring or otherwise disposing of Estate
Shares in a manner other than as required under the terms of this Agreement, TCA
may, in its sole discretion, withdraw the Registration Statement.
(b) (i) Upon one (1) business day's prior written notice from TCA,
the Estate and the Trust agree that during the Registration Period they will
refrain from disposing of Estate Shares for a period of time set forth in a
written notice delivered by TCA to the Estate and the Trust informing the
Estate and the Trust in writing that there have been material developments in
TCA's
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business that have not been publicly disclosed. The Registration Period will be
extended by the number of days set forth in any such notice.
(ii) Upon the written request of the Estate or the Trust, TCA will
grant a one-time extension of the Registration Period for a period of up to 14
calendar days.
(c) During the term of this Agreement, TCA will use its reasonable best
efforts to qualify the Estate Shares under applicable securities or "Blue Sky"
laws of such jurisdictions as the Estate may reasonably request for the
disposition of the Estate Shares, provided that in connection therewith TCA
shall not be obligated generally to qualify to do business in any jurisdiction
where it is not then so qualified.
(d) During the term of this Agreement, TCA will provide to the Estate
and the Trust such number of prospectuses, most recent annual report to
shareholders, most recent TCA Quarterly Report on Form 10-Q, most recent TCA
Annual Report on Form 10-K and any other document incorporated by reference in
the Registration Statement as the Estate and the Trust may reasonably request.
(e) During the term of this Agreement, TCA will provide to the Estate
and the Trust and their respective attorneys, investment bankers and financial
advisors and any attorney or other agent retained by such investment bankers
reasonable access to appropriate officers and directors of TCA to ask questions
and to obtain financial, corporate and other information and documents
reasonably requested by the Estate and the Trust and their respective
representatives and representatives of their agents as is customary in
connection with a due diligence investigation for an offering registered under
the Securities Act of 1933, provided, however, that (i) in connection with any
such access or request, the Estate and the Trust and their respective
representatives shall cooperate to the extent reasonably practicable to minimize
any disruption to the operation by TCA
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of its business and (ii) any records, information or documents not otherwise
held in the public domain, shall be held confidential by the Estate and the
Trust and their respective representatives and representatives of their agents
unless disclosure is made in connection with a court proceeding or required by
law or such information has otherwise become available to the public generally
through TCA or a third party without an accompanying obligation of
confidentiality.
(f) TCA will use its best efforts to cause Xxxx X. Xxxxxxx to be
available for up to two full business days during the term of this Agreement to
meet with potential purchasers of the Estate Shares.
(g) During the term of this Agreement, TCA shall inform the Estate and
the Trust promptly (i) when TCA is informed by the Commission's staff as to
whether or not the staff will review the Registration Statement, (ii) when TCA
is informed the Registration Statement becomes effective, (iii) of any request
by the Commission for an amendment or any supplement to the Registration
Statement or any related prospectus, (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement or of
any order preventing or suspending the use of any related prospectus or the
initiation or threat of any proceeding for that purpose, (v) of the suspension
of the qualification of any Estate Shares included in the Registration Statement
for sale in any jurisdiction or the initiation or threat of a proceeding for
that purpose, or (vi) of any determination by TCA that an event has occurred
which makes untrue any statement of a material fact made in the Registration
Statement or any related prospectus or which requires the making of a change in
the Registration Statement or any related prospectus in order that the same will
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading.
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(h) Each of the Estate and the Trust agrees, severally and not
jointly, to indemnify and hold harmless TCA, its directors, officers, agents,
employees, representatives and each person who controls TCA (within the meaning
of the Securities Act of 1933, as amended (the "Securities Act")), against any
losses, claims, damages, liabilities and expenses (including reasonable costs of
investigation) arising out of or related to the disposition of their respective
Estate Shares during the terms of this Agreement in a manner other than a manner
(i) permitted by this Agreement or (ii) contemplated under that portion of the
prospectus contained in the Registration Statement titled "Plan of
Distribution."
(i) The Estate and the Trust shall within five days following receipt of
written request for reimbursement from TCA , reimburse TCA for all out-of-pocket
expenses incurred by TCA in connection with the preparation, filing and
maintenance of the effectiveness of the Registration Statement, including
without limitation, filing fees, legal and accounting fees and expenses
(including fees and expenses incurred in connection with delivery to Xxxxxxxxx,
Lufkin & Xxxxxxxx Securities Corporation of an accountant's comfort letter and
an opinion of outside counsel), reasonable printing expenses and reasonable
travel expenses incurred by TCA in complying with the provisions of Paragraph
1(f) hereof.
(j) TCA agrees that, upon written notice from the Estate and the Trust,
it will withdraw the Registration Statement within 48 hours of receipt of
notice.
(k) TCA shall ensure that (i) the Registration Statement and any
amendment thereto and any prospectus forming part thereof and any amendment or
supplement thereto comply in all material respects with the Securities Act and
the rules and regulations thereunder and (ii) during the Registration Period,
the Registration Statement and any amendment thereto and any prospectus forming
part thereof and any amendment or supplement thereto does not include an
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untrue statement of a material fact or omit to state a material fact required to
be set forth therein or necessary in order to make the statements therein in
light of the circumstances under which they were made, not misleading.
(1) TCA shall obtain opinions of its counsel addressed to the Estate,
the Trust and any placement agent acting on its behalf covering matters
customarily covered in opinions requested in underwritten registered offerings
and such other matters as may be reasonably requested.
(m) TCA shall obtain comfort letters from its independent certified
public accountants addressed to the Estate, the Trust and any placement agent
acting on its behalf covering matters customarily covered in connection with
underwritten registered offerings.
(n) TCA shall enter into such agreements (including agreements with any
placement agent acting on behalf of the Estate) and take all other appropriate
actions as may be reasonably requested in order to facilitate the sale of the
Estate Shares in the manner contemplated by this Agreement, including without
limitation agreeing to indemnify the Estate and any placement agent acting on
its behalf against material misstatements and omissions in a manner customary
for registered transactions.
2. Disposition of Estate Shares.
(a) During the term of this Agreement the Estate will not:
(i) Directly or indirectly sell, transfer, pledge or otherwise
dispose of any Estate Shares to any person or entity, except for persons and
entities listed on Exhibit B or C attached hereto and incorporated herein or (x)
any direct or indirect wholly-owned subsidiaries of such persons, (y) investment
companies registered under the Investment Company Act of 1940, as amended, for
which such persons act as investment advisor or (z) any person or entity for
whom any of such foregoing persons exercises investment discretion provided that
the person on Exhibit B or
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Exhibit C is the person responsible for making, and has the authority to make,
the investment decision to purchase Estate Shares either with complete
investment discretion or shared discretion with the person or entity on whose
behalf it invests (the persons or entities enumerated in the immediately
preceding subparagraphs (x), (y) and (z) being collectively referred to herein
as an "Affiliate");
(ii) Directly or indirectly sell, transfer, pledge or otherwise
dispose of a number of Estate Shares to any person or entity listed on Exhibit B
attached hereto or an Affiliate of any such person in excess of 5% of the
outstanding shares of Common Stock, provided that in the event that the Estate
wishes to directly or indirectly sell, transfer, pledge or otherwise dispose of
a number of Estate Shares to any person or entity listed on Exhibit B attached
hereto in excess of 5% of the outstanding shares of Common Stock, the parties
acknowledge that the Estate may request in writing that TCA waive in part the
requirements of this paragraph 2(a)(ii) and TCA agrees to respond within two (2)
business days in writing to any such request, although TCA reserves the right to
grant or deny any such waiver in its sole discretion.
(iii) Directly or indirectly sell, transfer, pledge or otherwise
dispose of any Estate Shares to any person or entity listed on Exhibit B or
Exhibit C attached hereto and incorporated herein if immediately after such
sale, transfer, pledge or other disposition, such person or entity beneficially
would own (within the meaning set forth in Rule 13d-3) in excess of 14.9% of the
outstanding shares of Common Stock; or
(iv) Directly or indirectly sell, transfer, pledge or otherwise
dispose of any Estate Shares to any person or entity other than in a manner
contemplated by the discussion set forth in the prospectus contained in the
Registration Statement under the title "Plan of Distribution."
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(b) After the term of this Agreement, the Estate will not directly or
indirectly sell, transfer, pledge or otherwise dispose of any Estate Shares (i)
pursuant to the Registration Statement or (ii) assuming that the Estate has sold
at least 1,600,000 Estate Shares during the term of this Agreement, for a period
of 90 days following the expiration of the term of this Agreement.
(c) Notwithstanding anything to the contrary contained in this Section
2, the Estate shall during the term of this Agreement be entitled to distribute
up to 67,300 Estate Shares to individuals to fulfill individual bequests made
pursuant to the Last Will and Testament of Xxxxxx X. Xxxxxx.
3. Right of First Refusal. During the term of this Agreement, TCA waives
its Right of First Refusal with respect to any sale, transfer or other
disposition of Estate Shares owned and held by the Estate to a person or entity
listed on Exhibit B or C attached hereto or any Affiliate of any such person or
entity provided that the sale, transfer or other disposition is made in
accordance with the provisions of Section 2 of this Agreement and the price per
Estate Share to be received by the Estate before deducting of placement fees
and other expenses related to the Registration Statement is in excess of a price
to be agreed upon in writing by TCA and the Estate immediately prior to the
filing by TCA with the Commission of a request for acceleration of the
effectiveness of the Registration Statement. If the parties cannot agree on the
price required by the immediately preceding sentence within 48 hours following
the time at which TCA notifies the Estate either that the Commission will not
review the Registration Statement or that the Commission will have no further
comments on the Registration Statement, then the price above which the Estate
Shares must be sold in order for the Company's Right of First Refusal to be
deemed waived will be the greater of (a) 90% of the closing sale price for the
Common Stock as quoted on the NASDAQ National Market System for the trading day
immediately preceding the date that the Commission declares the
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Registration Statement effective and (b) 95% of the closing sale price for the
Common Stock as quoted on the NASDAQ National Market System for the trading day
immediately preceding the date that the Estate enters into a binding agreement
to sell, transfer, pledge or otherwise dispose of the Estate Shares in question.
4. Term of Agreement. The term of this Agreement shall begin on the date of
this Agreement and terminate upon the earlier to occur of (a) expiration of the
Registration Period and (b) the withdrawal of the Registration Statement
pursuant to the last sentence of paragraph 1(a) or paragraph 1(j).
Notwithstanding the foregoing, the provisions of paragraphs 1(h), 1(i) and 2(b)
and Section 14 shall survive the termination of this Agreement.
5. Announcements. Press Release and Regulatory Filings. Any press releases
or other announcements or regulatory filings (including amendments to the
Estate's Schedule 13D related to the Estate Shares) shall be approved by each
party to this Agreement; provided, however, that if either party reasonably
believes that it has a legal obligation to make a press release, public
announcement or regulatory filing and the consent of the other party cannot be
obtained, then the release may be made without such approval.
6. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
7. Indulgences. Etc. Neither the failure nor any delay on the part of
either party to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other or further
exercise of the same or of any right, remedy, power or privilege, nor shall any
waiver
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of any right, remedy, power, or privilege with respect to any occurrence be
construed as a waiver of such right, remedy, power or privilege with respect to
any other occurrence.
8. Notices. All notices, requests, demands and other communications
required or permitted under this Agreement send shall be in writing and shall be
deemed to have been duly given, made and received when sent by telecopy (with a
copy sent by mail) or when personally delivered or one business day after it is
sent by overnight service, addressed as set forth below:
If to TCA:
TCA Cable TV, Inc.
0000 XXX Xxxx 000
Xxxxx, Xxxxx 00000
Telecopy No.: (000) 000-0000
Attn: Xxxx X. Xxxxxxx, chairman
Xxxxxxx Xxxxx, General Counsel
If to the Estate or the Trust:
Xxxxxx Trust Company
0000 Xxxx Xxx Xxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Telecopy No.:(000) 000-0000
Attn: Xxxxxxx X. Xxxxxx
Any party may alter the address to which communications or copies are to be
sent by giving notice of such change of address in conformity with the
provisions of this subsection for the giving of notice, which shall be effective
only upon receipt.
9. Provisions Separable. The provisions of this Agreement are independent
of and separable from each other, and no provision shall be affected or rendered
invalid or unenforceable by virtue of the fact that for any reason any other or
others of them may be invalid or unenforceable in whole or in part.
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10. Entire Agreement. This Agreement contains the entire understanding
between the parties with respect to the subject matter hereof, and supersedes
all prior and contemporaneous agreements and understandings, inducements or
conditions, express or implied, oral or written, except as herein contained,
which shall be deemed terminated effective immediately. The express terms hereof
control and supersede any course of performance inconsistent with any of the
terms hereof.
11. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
12. Dispute Resolution.
(a) Any dispute, controversy or claim arising out of or in relation to
or in connection with this Agreement, including without limitation any dispute
as to the construction, validity, interpretation, enforceability or breach of
this Agreement, shall be exclusively and finally settled by arbitration, and
either party may submit such dispute, controversy or claim to arbitration.
(b) The arbitration shall be heard and determined by one arbitrator,
who shall be impartial and who shall be selected by mutual agreement of the
parties; provided, however, that if the parties cannot reach an agreement on an
arbitrator, then the Senior United States District Judge for the Northern
District of Texas, shall appoint an independent arbitrator who does not have any
financial interest in the dispute, controversy or claim. If the Senior United
States District Judge for the Northern District of Texas refuses or fails to act
as the appointing authority within ten (10) days after being requested to do so,
then the appointing authority shall be the Chief Executive Officer of the
American Arbitration Association, who shall appoint an independent arbitrator
who does not have any financial interest in the dispute, controversy or claim.
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(c) Unless otherwise expressly agreed in writing by the parties to the
arbitration proceedings:
(i) The arbitration proceedings shall be held in Dallas, Texas,
at a site chosen by mutual agreement of the parties, or if the parties cannot
reach agreement on a location within ten (10) days of the appointment of the
arbitrator, then at a site chosen by the arbitrator;
(ii) The arbitrator shall be and remain at all times wholly
independent and impartial;
(iii) The arbitration proceedings shall be conducted in accordance
with the Commercial Arbitration Rules of the American Arbitration Association,
as amended from time to time;
(iv) Any procedural issues not determined under the arbitral rules
selected pursuant to item (c) above shall be determined by the laws of the State
of Texas;
(v) The costs of the arbitration proceedings (including
attorneys' fees and costs) shall be borne in the manner determined by the
arbitrator;
(vi) The decision of the arbitrator shall be reduced to writing;
binding without the right of appeal; the sole and exclusive remedy regarding any
claims, counterclaims, issues or accounting presented to the arbitrator; made
and promptly paid in United States dollars free of any deduction or offset; and
any costs or fees incident to enforcing the award shall, to the maximum extent
permitted by law, be charged against the party resisting such enforcement;
(vii) The award shall include interest from the date of any breach
or violation of this Agreement, as determined by the arbitral award, and from
the date of the award until paid in full, at 7% per annum; and
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(viii) Judgment upon the award may be entered in any court having
jurisdiction over the person or the assets of the party owing the judgment or
application may be made to such court for a judicial acceptance of the award and
an order of enforcement, as the case may be.
13. Assignment. This Agreement may not be assigned by any party hereto
without the prior written consent of each of the other parties hereto.
14. Representations and Warranties.
(a) The Estate represents and warrants to TCA that this Agreement has
been duly authorized, executed and delivered on behalf of the Estate and the
Trust and constitutes the valid, legal and binding obligation of the Estate and
the Trust enforceable against the Estate and the Trust in accordance with its
terms.
(b) TCA represents and warrants to the Estate that this Agreement has
been duly authorized, executed and delivered on behalf of TCA and constitutes
the valid, legal and binding obligation of TCA enforceable against TCA in
accordance with its terms.
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Executed as of the 29 day of April 1998
TCA CABLE TV. INC.
By: /s/ XXXX X. XXXXXXX
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Xxxx Xxxxxxx, Chairman of the Board and
Chief Executive Officers
XXXXXX TRUST COMPANY IN ITS CAPACITY AS
INDEPENDENT EXECUTOR OF AND ON BEHALF OF
THE ESTATE OF XXXXXX X. XXXXXX DECEASED AND
IN ITS CAPACITY AS SOLE TRUSTEE OF XXXXXX
PROPERTY TRUST
BY: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
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Title: Vice Chairman
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