Exhibit 2.1
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER (this "Amendment")
is entered into as of August 10, 1999, by and among Xxx Communications, Inc., a
Delaware corporation ("Cox"), Cox Classic Cable, Inc., a Delaware corporation
("CCC"), and TCA Cable TV, Inc., a Texas corporation ("TCA").
RECITALS
WHEREAS, Cox, CCC and TCA entered into an Agreement and Plan of Merger,
dated as of May 11, 1999 (the "Merger Agreement"), and the parties desire to
amend the Merger Agreement as provided in this Amendment; and
WHEREAS, TCA, TCA Cable TV of Central Texas, Inc., a Texas corporation
("TCA Sub"), Cablevision of Leander, Inc., a Texas corporation ("Leander"), and
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 (collectively, the "Shareholders") have entered into an Agreement
and Plan of Reorganization, dated effective as of June 25, 1999, as amended and
assigned from TCA Sub to TCA Cable TV of Central Texas II, Inc. by Amendment No.
1 to Agreement and Plan of Reorganization, dated as of July 25, 1999 (as so
amended, the "Leander Agreement"); and
WHEREAS, TCA, TCA Sub, Xxxxxxxxxx County Cablevision Company, a Texas
corporation ("Xxxxxxxxxx"), and the Shareholders have entered into an Agreement
and Plan of Reorganization, dated effective as of June 25, 1999, as amended and
assigned from TCA Sub to TCA Cable TV of Central Texas III, Inc. by Amendment
No. 1 to Agreement and Plan of Reorganization, dated as of July 25, 1999 (as so
amended, the "Xxxxxxxxxx Agreement"); and
WHEREAS, TCA, TCA Sub, Cablevision of Pflugerville, Inc., a Texas
corporation ("Pflugerville"), the Shareholders and Xxxxxxx Xxxxxx III have
entered into an Agreement and Plan of Reorganization, dated effective as of June
25, 1999, as amended by Amendment No. 1 to Agreement and Plan of Reorganization,
dated as of July 25, 1999 (as so amended, the "Pflugerville Agreement" and,
together with the Leander Agreement and the Xxxxxxxxxx Agreement, the "North
Austin Agreements"); and
WHEREAS, pursuant to the North Austin Agreements, TCA has agreed to
acquire the businesses of Leander, Xxxxxxxxxx and Pflugerville, including
without limitation the cable television systems owned by Leander, Xxxxxxxxxx and
Pflugerville (collectively, the "North Austin Systems"), pursuant to the merger
of subsidiaries of TCA with and into Leander, Xxxxxxxxxx and Pflugerville (the
"North Austin Mergers"), in exchange for which TCA will pay the Shareholders and
Xxxxxxx Xxxxxx III, collectively, an aggregate of 1,460,340 shares of TCA common
stock, par value $.10 per share ("TCA Stock"), subject to upward or downward
adjustment as provided in the North Austin Agreements (the "Consideration"); and
WHEREAS, TCA Cable TV of Missouri, Inc. ("TCA Missouri") and Southwest
Missouri Cable TV, Inc. ("Southwest Missouri") have entered into an Asset
Purchase Agreement, dated as of July 2, 1999 (the "Southwest Missouri
Agreement"), pursuant to which TCA Missouri has agreed to purchase the assets of
Southwest Missouri relating to the operation of certain cable
television systems as provided in the Southwest Missouri Agreement, for a
purchase price of $28,600,000, subject to upward or downward adjustment as
provided in the Southwest Missouri Agreement; and
WHEREAS, TCA, VPI Communications, Inc., a Texas corporation and a
wholly owned subsidiary of TCA, and Xxxxxxx Xxxxxxxx ("Xxxxxxxx") have entered
into a Settlement and Non-Competition Agreement, dated effective as of July 21,
1999 (the "Settlement Agreement"), pursuant to which TCA and Xxxxxxxx have
agreed to terminate Campbell's current Employment Agreement, dated November 1,
1994 (the "Xxxxxxxx Employment Agreement"); and
WHEREAS, as consideration for the termination of the Xxxxxxxx
Employment Agreement and for entering into the Settlement Agreement, TCA has
agreed to issue to Xxxxxxxx 50,000 Shares of TCA Stock; and
WHEREAS, under the terms of the Merger Agreement, Xxx'x and CCC's
consent is required for TCA and TCA Missouri to consummate the transactions
contemplated under the North Austin Agreements, the Southwest Missouri Agreement
and the Settlement Agreement;
NOW, THEREFORE, in consideration of the premises and covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending
legally to be bound, hereby agree as follows:
1. Definitions. All capitalized terms used in this Amendment and not
defined in this Amendment shall have the meanings assigned to them in the Merger
Agreement.
2. North Austin Mergers.
(a) Subject to Sections 2(b) and 2(c) of this Amendment, Cox and CCC
each hereby consents to the terms of the North Austin Agreements and the
consummation of the North Austin Mergers and waives to the extent specified
herein the negative covenants of TCA set forth in Section 5.2(a) of the Merger
Agreement to allow TCA to issue up to 1,606,374 shares of TCA Stock, as provided
in the North Austin Agreements, in order to fund the Consideration and to
consummate the North Austin Mergers.
(b) TCA acknowledges and agrees that the waiver set forth in Section
2(a) of this Amendment shall not be effective, and the North Austin Mergers
shall not be consummated, unless:
(i) each of the representations and warranties of TCA
contained in the Merger Agreement (A) if specifically qualified by materiality,
shall be true and complete as so qualified, and (B) if not qualified by
materiality, shall be true and complete in all material respects, in each case
on and as of the date of the consummation of the North Austin Mergers (except
where any such representation or warranty is as of a specific earlier date, in
which event it shall remain true and complete (as qualified) as of such earlier
date), and in each case both before and after giving effect to the consummation
of the North Austin Mergers and the amendments to the Merger Agreement set forth
in Section 5 of this Amendment; and
(ii) TCA shall have performed in all material respects all of
its agreements and covenants under the Merger Agreement to have been performed
by it as of the date of the consummation of the North Austin Mergers, both
before and after giving effect to the consummation of the North Austin Mergers
and the amendments to the Merger Agreement set forth in Section 5 of this
Amendment.
(c) The consummation of the North Austin Mergers by TCA shall be deemed
a representation and warranty by TCA to Cox and CCC that the conditions set
forth in Section 2(b) of this Amendment have been met, and it shall be a
condition to the obligations of Cox and CCC to consummate the transactions
contemplated by the Merger Agreement that such representation and warranty shall
be true and complete in all respects.
(d) TCA acknowledges and agrees that notwithstanding anything to the
contrary in the Merger Agreement or in this Amendment, TCA shall not, directly
or indirectly, without the prior consent of Cox, acquire title to, or enter into
an agreement to acquire title to, the real property leased by Xxxxxxxxxx
pursuant to (i) Lease Agreement, dated January 1, 1996, between Xxxxx X.
XxXxxxxx and Xxxxxxxxxx County Cablevision Company and (ii) Lease Agreement,
dated January 1, 1996, between Xxxxx X. XxXxxxxx and Xxxxxxxxxx County
Cablevision Company, which leases are disclosed on Schedule 3.15(c) to the North
Austin Agreements.
(e) TCA represents and warrants that it has no obligation to make any
payments pursuant to that certain Brokerage Agreement entered into with Meridian
Communications, Inc. (the "Brokerage Agreement") which Brokerage Agreement is
described on Schedule 3.24 to the North Austin Agreements. TCA acknowledges and
agrees that any and all payments to be made to Meridian Communications, Inc. or
any other person or entity pursuant to the Brokerage Agreement shall be made
solely by the Shareholders.
3. Southwest Missouri Acquisition.
(a) Subject to Section 3(b) of this Amendment, Cox and CCC each hereby
consents to the terms of the Southwest Missouri Agreement and waives to the
extent specified herein the negative covenants of TCA contained in the Merger
Agreement to allow TCA Missouri to consummate the transactions contemplated by
the Southwest Missouri Agreement for a total of $28,600,000, subject to
adjustment as provided in the Southwest Missouri Agreement.
(b) Notwithstanding anything to the contrary in this Amendment, the
parties hereto agree that the closing under the Southwest Missouri Agreement
shall not be consummated prior to the closing under the Merger Agreement unless
(i) the Merger Agreement is further amended, to be effective immediately
following the closing under the Southwest Missouri Agreement, to amend the
definition of "Cable System" to include the cable television system acquired
pursuant to the Southwest Missouri Agreement and to otherwise provide in the
Merger Agreement for the acquisition of such cable television system to the
satisfaction of Cox and CCC and (ii) TCA shall make similar representations and
warranties to Cox and CCC in connection with the Southwest Missouri Agreement as
are made in connection with the North Austin Mergers in Section 2 of this
Amendment.
4. Settlement Agreement. Cox and CCC each hereby consents to the terms of the
Settlement Agreement and waives to the extent specified herein the negative
covenants of TCA set forth in Section 5.2(a) of the Merger Agreement to allow
TCA to enter into the Settlement Agreement and issue 50,000 shares of TCA Stock
to Xxxxxxxx.
5. Amendment. Effective immediately, the Merger Agreement shall be amended as
follows:
(a) Section 2.2(c) of the Merger Agreement shall be amended: (i) by
deleting "0.3709" where it appears in Section 2.2(c)(i) and substituting in lieu
thereof "0.7418", and (ii) by deleting "0.7418" where it appears in Section
2.2(c)(ii) and substituting in lieu thereof "1.4836".
(b) Section 2.2(d) of the Merger Agreement shall be amended by deleting
the section in its entirety and substituting in lieu thereof the following:
(d) Maximum Parent Shares and Maximum Cash Amount.
(i) Subject to adjustment pursuant to Section 2.2(d)(ii), the
aggregate maximum number of shares of Parent Class A Common
Stock into which shares of Company Common Stock may be
converted pursuant to this Section 2.2 shall be 39,561,270
(the "Maximum Parent Shares"). The aggregate maximum amount of
cash into which shares of Company Common Stock may be
converted pursuant to this Section 2.2 shall be $1,666,607,844
(the "Maximum Cash Amount").
(ii) Reduction of Maximum Cash Amount and Maximum Parent
Shares.
(A) In the event the Company, Parent or Merger Sub or
an Affiliate thereof purchases the Warrant before or
substantially concurrent with the Effective Time,
then (y) the Maximum Cash Amount shall be decreased
by $18,750,000 and (z) the Maximum Parent Shares
shall be decreased by 445,080.
(B) In the event there shall remain at the Effective
Time any outstanding Stock Options or Director
Options, then (y) the Maximum Cash Amount shall be
decreased by the product of $31.25 and the number of
shares of Company Common Stock subject to outstanding
Stock Options and Director Options, and (z) the
Maximum Parent Shares shall be decreased by the
product of .7418 and the number of shares of Company
Common Stock subject to outstanding Stock Options and
Director Options. For purposes of this Clause (B),
any Stock Options and Director Options with respect
to which an election has been made or deemed made
pursuant to Section 2.6(a) or Section 2.6(b) shall be
treated as outstanding at the Effective Time.
(C) Subsequent to the closing of the North Austin
Mergers, (1) the Maximum Parent Shares shall be
reduced by (x) the difference between 1,606,370 and
the number of shares of Company Common Stock issued
in connection with the North Austin Mergers
multiplied by (y) .7418, and (2) the Maximum Cash
Amount shall be reduced by (x) the difference between
1,606,370 and the number of shares of Company Common
Stock issued in connection with the North Austin
Mergers multiplied by (y) $31.25.
(D) Each of the adjustments provided for in Sections
2.2(d)(ii)(A), (B) and (C) shall operate
independently of each other and the Maximum Cash
Amount and the Maximum Parent Shares as of the
Effective Time shall be calculated with reference to
each such adjustment.
(c) Section 2.2 of the Merger Agreement shall be amended by
deleting Section 2.2(m) in its entirety.
(d) Section 2.6(a) of the Merger Agreement shall be amended by
adding the following sentence as the new second sentence thereof:
Any non-employee director who does not make an election
pursuant to either Section 2.6(a)(i) or Section 2.6(a)(ii) by
the applicable election date (to be specified by Parent) shall
be deemed to have made an election under Section 2.6(a)(ii) as
of such date.
(e) Section 2.6(b) of the Merger Agreement shall be amended by
adding the following sentence as the new second sentence thereof:
Any employee who does not make an election pursuant to either
Section 2.6(b)(i) or Section 2.6(b)(ii) by the applicable
election date (to be specified by Parent) shall be deemed to
have made an election under Section 2.6(b)(i) as of such date.
(f) Section 5.10(a) of the Merger Agreement shall be amended by
deleting the first sentence in its entirety and by substituting in lieu thereof
the following sentence:
For the period ending on the last day of the first calendar
year beginning after the Effective Date, Parent shall or shall
cause the Surviving Corporation to maintain employee benefit
plans and arrangements that provide benefits, in the
aggregate, on the same terms and subject to the same
conditions as in effect under such Benefit Plan (not taking
into account either benefits under any Benefit Plan that are
equity based or benefits under any employee benefit plans or
arrangements that cover or
have covered employees that work or have worked for businesses
acquired by the Company, whether by merger, asset or stock
purchase or otherwise, after the date of this Agreement).
(g) Article Six of the Merger Agreement shall be amended by adding the
following new Section 6.9:
Section 6.9 North Austin Company Entities. The Company
shall own directly all of the outstanding capital stock of
each of Xxxxxxxxxx County Cablevision Company, Cablevision
of Leander, Inc. and Cablevision of Pflugerville, Inc. as of
the Closing.
(h) Exhibit A to the Merger Agreement shall be amended by deleting the
definition of "Cable Systems" in its entirety and substituting in lieu thereof
the following definition:
"Cable Systems" means (i) the cable television systems owned
and operated by the Company Entities as of the date hereof,
all of which are set forth on Exhibit C, together with a list
of communities served by each such Cable System, and (ii) the
North Austin Systems.
(i) Exhibit A to the Merger Agreement shall be further amended by
deleting the definition of "Company Entities" in its entirety and substituting
in lieu thereof the following definition:
"Company Entities" means (i) the Company and the Subsidiaries
of the Company which are listed on Schedule 3.2(a), (ii) TCA
Cable TV of Central Texas II, Inc. and (iii) TCA Cable TV of
Central Texas III, Inc.
(j) Exhibit A to the Merger Agreement shall be further amended by
adding the following new definitions:
"North Austin Agreements" means (i) the Agreement and Plan of
Reorganization, dated effective June 25, 1999, among the
Company, TCA Cable TV of Central Texas, Inc., Cablevision of
Leander, Inc., 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, as
amended and assigned from TCA Cable TV of Central Texas, Inc.
to TCA Cable TV of Central Texas II, Inc. by Amendment No. 1
to Agreement and Plan of Reorganization, dated as of July 25,
1999, (ii) the Agreement and Plan of Reorganization, dated
effective June 25, 1999, among the Company, TCA Cable TV of
Central Texas, Inc., Xxxxxxxxxx County Cablevision Company,
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, as amended and assigned from TCA Cable TV of
Central Texas, Inc. to TCA Cable TV of Central Texas III, Inc.
by Amendment No. 1 to Agreement and Plan of Reorganization,
dated as of July 25, 1999, and (iii) the Agreement and Plan of
Reorganization, dated effective June 25, 1999, among the
Company, TCA Cable TV of Central Texas, Inc., Cablevision of
Pflugerville, Inc., Xxxx Xxxxxxxx, Xxxx Xxxxxxx, Xxxx X.
XxXxxxxx, Xxxxxxx Xxxxxx III and the Estate of Xxxxx X.
XxXxxxxx, Deceased, by and through its co-executors, Xxxxxxx
Xxxxx Xxxxxxx and Xxxx X. Xxxxx, as amended by Amendment No. 1
to Agreement and Plan of Reorganization, dated as of July 25,
1999.
"North Austin Mergers" means the following transactions that
shall be consummated pursuant to the North Austin Agreements:
(i) TCA Cable TV of Central Texas II, Inc. shall be merged
into Cablevision of Leander, Inc. and the separate existence
of TCA Cable TV of Central Texas II, Inc. shall cease,(ii) TCA
Cable TV of Central Texas III, Inc. shall be merged into
Xxxxxxxxxx County Cablevision Company and the separate
existence of TCA Cable TV of Central Texas III, Inc. shall
cease, and (iii) TCA Cable TV of Central Texas, Inc. shall be
merged into Cablevision of Pflugerville, Inc. and the separate
existence of TCA Cable TV of Central Texas, Inc. shall cease.
"North Austin Systems" means the cable television systems
formerly owned and operated by Cablevision of Leander, Inc.,
Cablevision of Pflugerville, Inc. and Xxxxxxxxxx County
Cablevision Company that were acquired by certain Company
Entities pursuant to the North Austin Mergers.
(k) Schedule 3.7(a) shall be amended by appending thereto the
Addendum to Schedule 3.7(a) attached hereto.
6. Governing Law. This Amendment shall be governed, construed and enforced in
accordance with the laws of the State of Delaware (without regard to the choice
of law provisions thereof).
7. Counterparts. This Amendment may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
8. Reference to Merger Agreement. Except as amended hereby, the Merger 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 Merger Agreement
contained in this Amendment shall be construed as a further or continuing waiver
of such term or provision or any other term or provision of the Merger
Agreement. On and after the effectiveness of the amendment to the Merger
Agreement accomplished hereby, each reference in the Merger Agreement to "this
Agreement", "hereunder", "hereof", "herein" or words of like import, and each
reference to the Merger Agreement in any agreement, document or instrument
executed and delivered pursuant
to the Merger Agreement, shall be deemed a reference to the Merger Agreement,
as amended hereby.
9. Benefit and Binding Effect. This Amendment shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
10. Entire Agreement. This Amendment represents the entire understanding and
agreement among the parties with respect to the subject matter hereof.
11. Headings. The Section headings of this Amendment are for convenience of
reference only and do not form a part of this Amendment and do not in any way
modify, interpret or construe the intention of the parties.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to
Agreement and Plan of Merger as of the date first above written.
XXX COMMUNICATIONS, INC.
By: /s/ Xxxx X.Xxxx
---------------
Name: Xxxx X. Xxxx
Title: Senior Vice President,
Mergers and Acquisitions,
and Chief Accounting
Officer
COX CLASSIC CABLE, INC.
By: /s/ Xxxx X.Xxxx
---------------
Name: Xxxx X. Xxxx
Title: Vice President
TCA CABLE TV, INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
Addendum to Schedule 3.7(a)
Information Regarding the Business of the North Austin Systems
1. List of Franchises and System Rights for the North Austin Systems
(a) See Schedule 3.10 and Schedule 3.11 to each of the North
Austin Agreements.
2. Approximate Plant Miles for the North Austin Systems
(a) Approximate Total Plant Miles: 498 miles
(b) Approximate Aerial Plant Miles: 279 miles
(c) Approximate Underground Plant Miles: 219 miles
3. Approximate Number of Homes Passes for the North Austin Systems: 31,570
4. Bandwidth Capacities for the North Austin Systems
(a) City of Xxxxxxx: 450 MHz
(b) All Other Areas Served by the North Austin Systems: 550 MHz,
with some portions upgraded to 750 MHz.