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EXHIBIT 99(f)
FORM OF AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF REORGANIZATION
AMONG XXXXXXXXXX COUNTY CABLEVISION COMPANY,
XXXX XXXXXXXX, XXXX XXXXXXX, XXXX X. XXXXXXXX,
THE ESTATE OF XXXXX X. XXXXXXXX AND THE REGISTRANT
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EXHIBIT 99(f)
AMENDMENT NO. 1 TO
AGREEMENT AND PLAN OF REORGANIZATION
This Amendment No. 1 (this "Amendment") dated as of July __, 1999 is
entered into by and among Xxxxxxxxxx County Cablevision Company, a Texas
corporation ("Target"), Xxxx Xxxxxxxx, Xxxx Xxxxxxx, Xxxx X. XxXxxxxx and the
Estate of Xxxxx X. XxXxxxxx, Deceased, by and through its Co-Executors, Xxxxxxx
Xxxxx Xxxxxxx and Xxxx X. Xxxxx (the "Shareholders"), TCA Cable TV of Central
Texas, Inc., a Texas corporation ("Sub"), TCA Cable TV, Inc., a Texas
corporation ("Parent") and TCA Cable TV of Central Texas III, Inc. ("Cable
III"). All capitalized terms used in this Amendment that are not defined herein
shall have the meanings set forth in the Agreement (as defined below).
WITNESSETH:
WHEREAS, Target, Shareholders, Sub and Parent entered into that certain
Agreement and Plan of Reorganization dated effective as of June 25, 1999 (the
"Agreement");
WHEREAS, the parties have agreed that Sub shall have the right to
assign its rights and obligations under the Agreement to Cable III and Cable III
shall assume the rights and obligations of Sub under the Agreement;
WHEREAS, the parties desire to revise the form of the Merger so that
Cable III merges with and into Target in exchange for shares of TCA Stock;
WHEREAS, the Merger was intended to qualify as a reorganization within
the meaning of Section 368(a) of the Code pursuant to the provisions governing
forward triangular mergers; and
WHEREAS, the parties now desire that the Merger qualify as a
reorganization within the meaning of Section 368(a) of the Code pursuant to the
provisions governing reverse triangular mergers.
NOW THEREFORE, in consideration of the mutual representations,
warranties and covenants contained herein, and on the terms and subject to the
conditions set forth herein, the parties agree as follows:
A. ASSIGNMENT FROM SUB TO CABLE III.
1. Sub hereby assigns all of its rights and obligations under the
Agreement to Cable III, and Cable III hereby assumes the rights and obligations
of Sub under the Agreement (the "Assignment"). Notwithstanding the provisions of
Section 12.07 of the Agreement regarding assignments, Target, Shareholders and
Parent hereby consent to the Assignment.
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B. AMENDMENT TO AGREEMENT. The Agreement is hereby amended as follows:
1. Article 1, Section 1.01 of the Agreement is deleted in its
entirety and replaced with the following:
"Subject to the terms and conditions of this Agreement, Cable III shall
be merged into Target and the separate existence of Cable III shall thereupon
cease, in accordance with the applicable provisions of the laws of the State of
Texas."
"Target will be the surviving corporation in the Merger
(sometimes referred to herein as the "Surviving Corporation") and will
continue to be governed by the laws of the State of Texas, and the
separate existence of Target and all of its rights, privileges,
immunities and franchises, public or private, and all its duties and
liabilities as a corporation organized under the laws of the State of
Texas and other applicable laws, will continue unaffected by the
Merger."
"On the date which the duly executed Articles of Merger are
filed with the Secretary of State of Texas (the "Effective Time"), by
virtue of the Merger and without any action on the part of any holder
of any capital stock of Target, and without any action on the part of
any holder of any capital stock of Cable III, as consideration for the
Closing Shares, all outstanding capital stock of Cable III of any kind
or nature shall be converted into 10,000 shares of the common stock of
the Surviving Corporation, which shares shall constitute all of the
issued and outstanding capital stock of the Surviving Corporation and
shall be owned by Parent."
"For the purposes of this Agreement, (i) the term "Closing"
shall mean the closing of the Merger and the other transactions
contemplated by this Agreement at such time and place as shall be
mutually agreed upon in writing by all of the parties hereto, and (ii)
the term "Closing Date" shall mean such date as may be decided solely
by the Shareholders by written notice to Parent and Cable III, provided
that approvals required by Sections 8.06 and 8.07 have been obtained."
2. Article 1, Section 1.02(a) of the Agreement is deleted in its
entirety and replace with the following:
(a) Preliminary Merger Consideration. The value of the consideration to
be paid by Parent to the Shareholders (the "Preliminary Merger Consideration")
shall be $33,988,500, which shall be paid by delivery of 679,770 shares of TCA
Stock of Parent, valued for such purposes at $50.00 per share (the "Closing
Shares"). A reasonable amount of the Preliminary Merger Consideration is
allocated by the parties to the Noncompetition Agreement referred to in Section
2.01 (a) hereof. Except as set forth in Section 1.01 above, following the
Effective Time, no Shares of Target shall be deemed to be outstanding or to have
any rights other than those rights set forth in this Section 1.02 and in Section
1.03 hereof. The Preliminary Merger Consideration set forth in this Section
1.02(a) shall be subject to adjustment as described in Section 1.02(b).
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3. Article 1, Section 1.04 of the Agreement is deleted in its
entirety and replaced with the following:
"Section 1.04 Tax Status of Merger. The Merger and the transfer of the
Closing Shares to the Shareholders contemplated by this Agreement are
intended by the parties to qualify as a tax-free reorganization under
Sections 368(a)(1)(A) and 368(a)(2)(E) of the Code, and each of the
parties hereto agrees to act with respect to the Stock and the Closing
Shares, as applicable, and take such other steps, including the proper
filing of plans of reorganization and articles of merger, as shall be
necessary to insure the tax-free status of the transaction under such
Code sections and the underlying regulations."
4. Any inconsistencies in the provisions of this Amendment and
the Agreement shall be governed by the provisions of this Amendment.
C. MISCELLANEOUS.
1. Except as amended hereby, the Agreement shall remain in
full force and effect and is hereby ratified and confirmed in all
respects. No waiver of any term or provision of the Agreement contained
in this Amendment shall be construed as a further or continuing waiver
of such term or provision or any other term of provision of the
Agreement. On and after the effectiveness of the amendment to the
Agreement accomplished hereby, each reference in the Agreement to "this
Agreement", "hereunder", "hereof", "herein" or words of like import,
and each reference to the Agreement in any agreement, document or
instrument executed and delivered pursuant to the Agreements, shall be
deemed a reference to the Agreement, as amended hereby.
2. This Amendment may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
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EXECUTED as of the dates set forth below to be effective as of the date
first above written.
TCA CABLE TV, INC., a Texas corporation
Date: By:
--------------------------- ------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President - Business Development
TCA CABLE TV OF CENTRAL TEXAS III, INC.,
a Texas corporation
Date: By:
--------------------------- ------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Secretary and General Counsel
TCA CABLE TV OF CENTRAL TEXAS, INC.,
a Texas corporation
Date: By:
--------------------------- ------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Secretary and General Counsel
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XXXXXXXXXX COUNTY CABLEVISION
COMPANY, INC., a Texas corporation
Date: By:
--------------------------- ------------------------------------------
Name: Xxxx Xxxxxxx
Title: President
SHAREHOLDERS
Date: By:
--------------------------- ------------------------------------------
Name: Xxxx Xxxxxxxx
Date: By:
--------------------------- ------------------------------------------
Name: Xxxx Xxxxxxx
Date: By:
--------------------------- ------------------------------------------
Name: Xxxx X. XxXxxxxx
The Estate of Xxxxx X. XxXxxxxx
Date: By:
--------------------------- ------------------------------------------
Name: Xxxxxxx Xxxxx Xxxxxxx
Title: Co-Executor
Date: By:
--------------------------- ------------------------------------------
Name: Xxxx X. Xxxxx
Title: Co-Executor
