EXHIBIT 2.3.1
AGREEMENT AND PLAN OF MERGER
OF
PRIME CABLE FUND I, INC.
a Delaware corporation
WITH AND INTO
GCI CABLE, INC.
an Alaska corporation
This AGREEMENT AND PLAN OF MERGER ("Agreement") is made and entered into as
of the day of , 1996, pursuant to Alaska Statute 10.06.562 and
Section 252 of the Delaware General Corporation Law, by and between Prime Cable
Fund I, Inc., a Delaware corporation ("PCFI"), and GCI Cable, Inc., an Alaska
corporation ("GCI Cable, Inc.").
R E C I T A L S
WHEREAS, PCFI is a corporation duly organized and existing under the laws of
the State of Delaware with authorized capital consisting of 1,000 shares,
classified as common stock, par value $.50 per share ("PCFI Class A Stock"), of
which 1,000 shares are issued and outstanding,
WHEREAS, GCI Cable, Inc. is a corporation duly organized and existing under
the laws of the State of Alaska with authorized capital consisting of 1,000
shares, classified as common stock, no par value, of which 100 shares are issued
and outstanding; and
WHEREAS, the parties hereto desire that PCFI be merged with and into GCI
Cable, Inc. under the Articles of Incorporation of GCI Cable, Inc. and with the
name "GCI Cable, Inc." pursuant to the terms and conditions of this Agreement;
and
WHEREAS, the Directors of PCFI have approved and adopted this Agreement by
written consent dated as of , 1996;
WHEREAS, the sole stockholder of PCFI has approved and adopted this Agreement
by unanimous written consent dated as of , 1996;
WHEREAS, the Directors of GCI Cable, Inc. have approved and adopted this
Agreement by written consent dated as of , 1996; and
WHEREAS, the sole stockholder of GCI Cable, Inc. has approved and adopted
this Agreement by written consent dated as of , 1996;
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to be
legally bound hereby, GCI Cable, Inc. and PCFI hereby agree as follows:
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A G R E E M E N T
1. Merger of PCFI with and into GCI Cable, Inc.. At the Effective Time (as
defined herein), GCI Cable, Inc. and PCFI hereby agree that PCFI shall merge
with and into GCI Cable, Inc., and GCI Cable, Inc. shall be the surviving
corporation of such merger (the "Merger"), pursuant to the provisions of Alaska
Statute 10.06.562 and Section 252 of the Delaware General Corporation Law.
Following the Merger, the separate corporate existence of PCFI shall cease, and
GCI Cable, Inc. shall continue as the surviving corporation (the "Surviving
Corporation") and shall continue its corporate existence.
2. Name and Location of the Surviving Corporation. The name of the
Surviving Corporation shall be and remain "GCI Cable, Inc." The established
offices and business locations of both GCI Cable, Inc. and PCFI, if any, shall
be the offices and locations of the Surviving Corporation.
3. Certificate of Incorporation and Bylaws. At the Effective Time, the
Articles of Incorporation and the Bylaws (as then constituted) of GCI Cable,
Inc. shall be and remain the Articles of Incorporation and Bylaws of the
Surviving Corporation, until such Articles of Incorporation or Bylaws are
amended, altered or repealed as provided by law.
4. Directors. At the Effective Time, the sole director of PCFI, and the
directors of GCI Cable, Inc., immediately prior to the Effective Time shall
cease to be directors, the number of directors of the Surviving Corporation
shall at the Effective Time be five, and the directors of the Surviving
Corporation shall at the Effective Time be Xxxxxx X. Xxxxxx, Xxxxx X. Xxxxxxx,
Xxxxx X. Xxxxxx, Xxxxxx X. Xxxx and Xxxxxx X. Page who, subject to the Bylaws of
the Surviving Corporation and the laws of the State of Alaska, shall serve until
their respective successors are elected or appointed and qualified or until such
person's earlier death, incapacity, resignation or removal.
5. Officers. At the Effective Time, the officers of PCFI and GCI Cable,
Inc. immediately prior to the Effective Time shall cease to be officers, and the
officers of the Surviving Corporation shall be the following persons, each of
whom, subject to the Bylaws of the Surviving Corporation and to the laws of the
State of Alaska, shall hold office from the Effective Time until his or her
successor is duly elected or appointed and qualified or until the earlier of his
or her death, incapacity, resignation or removal:
Name Office To Be Held
---- -----------------
Xxxxxx X. Xxxxxx President
Xxxx X. Xxxxxx Treasurer and Secretary
6. Effect of Merger. At the Effective Time, GCI Cable, Inc. shall receive
all of the property, rights, privileges, franchises, patents, trademarks, trade
names, licenses, registrations and other assets of every kind and description of
PCFI, including, without limitation, all goodwill associated therewith, such
assets shall be vested in and devolve upon GCI Cable, Inc. without further act
and deed, and GCI Cable, Inc. shall assume all the liabilities of every kind and
description of PCFI.
7. Conversion of Shares and Other Securities. At the Effective Time, by
virtue of the Merger and without any action on the part of GCI Cable, Inc., PCFI
or the holder of any of the shares and other securities of GCI Cable, Inc. or
PCFI, the following will occur:
(a) Each share of GCI Cable, Inc. Common Stock issued
and outstanding immediately prior to the Effective Time, shall
remain one share of GCI Cable, Inc. Common Stock.
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(b) Each share of PCFI Stock issued and outstanding
immediately prior to the Effective Time, shall be converted
into 2,227.071 shares of Class A Common Stock, no par value,
of General Communication, Inc., an Alaska corporation and the
owner of all of the issued and outstanding capital stock of
GCI Cable, Inc., at the Effective Time. The transfer books of
PCFI shall be closed and no transfer of PCFI Stock shall be
made at or after the Effective Time.
8. Effective Time. The Merger shall become effective on the date that (i) a
Certificate of Merger shall have been filed with the Secretary of State of the
State of Delaware in accordance with Section 252 of the General Corporation Law
of the State of Delaware (the "Effective Time"), and (ii) Articles of Merger
shall have been filed with the Commissioner of the Department of Commerce of the
State of Alaska in accordance with Alaska Statute 10.06.552.
9. PCFI Dividend. PCFI and GCI Cable, Inc. acknowledge and agree that PCFI
shall, immediately prior to the Effective Time, be entitled to declare and pay
to its stockholders a dividend consisting of all cash on hand and any tax refund
receivables held by PCFI immediately prior to the Effective Time. GCI Cable,
Inc. agrees that in the event that any such tax refund receivable is actually
paid to PCFI or GCI Cable, Inc. after the Effective Time, GCI Cable, Inc. will
promptly remit the same to Prime Cable Limited Partnership (the sole stockholder
of PCFI as of the Effective Time).
10. PCFI's Liabilities. PCFI has no known liabilities, obligations or
commitments of any kind, other than those liabilities disclosed in writing to
GCI Cable, Inc. by PCFI. Prior to the Effective Time, PCFI will pay or discharge
all of PCFI's known liabilities, obligations and commitments. PCFI and GCI
Cable, Inc. agree that a breach of PCFI's representations and covenants in this
Section 10 shall be deemed to be a breach under Section 3.27 of the Purchase
Agreement (as that term is defined in Section 13 below), which shall be subject
to the provisions of Sections 17.1 through 17.7 of the Purchase Agreement;
provided, however, that anything in Sections 17.1 through 17.7 of the Purchase
Agreement notwithstanding, GCI Cable, Inc.'s sole recourse with respect to any
such breach by PCFI shall be limited to those shares of GCI Class A Common Stock
which are deposited into the Escrow Holdback (as that term is defined in Section
2.3 of the Purchase Agreement) by the sole stockholder of PCFI as a portion of
the Sellers' Indemnity Shares (as that term is defined in Section 2.3 of the
Purchase Agreement).
11. Termination. This Agreement may be terminated and abandoned by decision
of the Board of Directors of any corporation that is a party hereto,
notwithstanding approval of this Agreement by the stockholders of all or any of
the corporations that are parties hereto, at any time prior to the Effective
Time. In the event of the termination and abandonment of this Agreement, this
Agreement shall become void and have no effect, without any liability on the
part of the party or parties electing so to terminate, or their respective
directors, officers or stockholders in respect of this Agreement, except for
liability of the parties for their respective expenses.
12. Amendment or Modification. This Agreement may be amended or modified at
any time prior to the Effective Time, provided, however, that any amendment or
modification subsequent to the adoption of this Agreement by the stockholders of
any corporation that is a party hereto and who are entitled to vote thereon may
not alter or change:
(a) the amount or kind of shares, securities, cash,
property and/or rights to be received in exchange for or on
conversion of all or any of the shares of any class or series
thereof of such corporation, except as approved by such
stockholders of each of the corporations that are parties
hereto;
(b) any term of the Articles of Incorporation of GCI
Cable, Inc. except as approved by such stockholders of each of
the corporations that are parties hereto; or
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(c) any of the terms or conditions of this Agreement
if such alteration or change would adversely affect the
holders of any class or series thereof of such corporation,
except as approved by the holders of the class or series so
affected.
13. Agreement of Parties. This Agreement is subject to the terms and
provisions of that certain Securities Purchase and Sale Agreement dated May 2,
1996 (the "Purchase Agreement") by and among General Communication, Inc., the
sole stockholder of PCFI, et al., and in the event of any conflict between the
terms of this Agreement and the terms and provisions of the Purchase Agreement,
the terms and provisions of the Purchase Agreement shall govern and control.
14. Further Assurances. Each party hereto agrees from time to time, as and
when requested by the other party hereto, or by its successors or assigns, to
execute and deliver, or cause to be executed and delivered, all such deeds and
instruments and to take or cause to be taken such further or other acts, either
before or after the Effective Time, as may be deemed necessary or desirable in
order to vest in and confirm to the Surviving Corporation title to and
possession of any assets of PCFI acquired or to be acquired by reason of or as a
result of the Merger and otherwise to carry out the intent and purposes hereof,
and the officers and directors of the parties hereto are fully authorized in the
name of their respective corporations to take any and all such actions.
15. Headings; Gender; Plurals. All sections and articles referred to herein
are sections and articles of this Agreement. Descriptive headings as to the
contents of particular articles and sections are for convenience only and shall
not control or affect the meaning or construction of any provision of this
Agreement. Each use herein of the masculine, neuter or feminine gender shall be
deemed to include the other genders and each use herein of the plural shall
include the singular and vice versa, in each case as the context requires or as
is otherwise appropriate.
16. Severability. In the event that any provision of this Agreement is held
to be illegal, invalid or unenforceable under present or future laws, then (i)
such provision shall be fully severable and this Agreement shall be construed
and enforced as if such illegal, invalid or unenforceable provision were not a
part hereof; (ii) the remaining provisions of this Agreement shall remain in
full force and effect and shall not be affected by such illegal, invalid or
unenforceable provision or by its severance from this Agreement; and (iii) there
shall be added automatically as a part of this Agreement a provision as similar
in terms to such illegal, invalid or unenforceable provision as may be possible
and still be legal, valid and enforceable.
17. Multiple Counterparts. For the convenience of the parties hereto and to
facilitate the filing and recording of this Agreement, this Agreement may be
executed in multiple counterparts, each of which shall be deemed an original,
and all counterparts hereof so executed by the parties hereto, whether or not
such counterpart shall bear the execution of each of the parties hereto, shall
be deemed to be, and shall be construed as, one and the same Agreement.
18. Consents. The parties hereto acknowledge that the Merger is subject to
the obtaining of applicable consent of Alaska Public Utilities Commission and of
the Federal Communications Commission, and that such consents have been
obtained.
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IN WITNESS WHEREOF, GCI Cable, Inc. and PCFI have caused this Agreement to be
signed in their respective corporate names as of the date and year first above
written.
PRIME CABLE FUND I, INC.
ATTEST: (A Delaware corporation)
By: By:
Its: Its:
GCI CABLE, INC.
(An Alaska corporation)
ATTEST:
By: By:
Its: Its:
REGISTRATION STATEMENT
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