EXHIBIT 2.1
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
AMENDMENT, dated as of October 7, 1996 (this "Amendment"), to the
Agreement and Plan of Merger, dated as of February 27, 1996, as amended and
restated as of June 27, 1996 (the "Merger Agreement"), among U S WEST, Inc., a
Delaware corporation ("Acquiror"), Continental Merger Corporation, a Delaware
corporation ("Company Sub"), and Continental Cablevision, Inc., a Delaware
corporation (the "Company").
W I T N E S S E T H :
WHEREAS, Acquiror, Company Sub and the Company desire to amend the
Merger Agreement in certain respects, as more fully set forth herein; and
WHEREAS, Section 9.5 of the Merger Agreement permits amendments to the
Merger Agreement by the written agreement of Acquiror, Company Sub and the
Company.
NOW, THEREFORE, in consideration of the mutual covenants and agreement
set forth herein, the parties hereto agree as follows:
ARTICLE I.
AMENDMENTS TO THE MERGER AGREEMENT
1.1. DEFINITIONS. (a) The definition of "Class A Preferred Consideration
Amount" set forth in Section 1.1 of the Merger Agreement is hereby amended by
inserting the clause "but excluding any and all unvested and outstanding shares
of Restricted Company Common Stock" at the end thereof.
(b) The definition of "Class A Preferred Percentage" set forth in
Section 1.1 of the Merger Agreement is hereby amended by deleting the words
"Class A" from clause (y) thereof.
(c) The definition of "Calculation Price" set forth in Section 1.1 of
the Merger Agreement is hereby amended and restated as follows:
"CALCULATION PRICE" shall mean $21.00.
(d) The definition of "Transaction Value" set forth in Section 1.1 of
the Merger Agreement is hereby amended by inserting the clause "but excluding
any and all unvested and outstanding shares of Restricted Company Common Stock"
at the end thereof.
(e) Section 1.1 of the Merger Agreement is hereby amended by deleting
the definitions of "Cap Price," "Determination Price," "Floor Price," "Intra-Day
Closing Prices," "Random Trading Days" and "Trading Day" in their entirety.
(f) The following additional definitions are hereby added to Section 1.1
of the Merger Agreement:
"CLASS B COMMON STOCK ELECTION CONVERSION NUMBER" shall mean the quotient
of (x) the product of (A) the Class B Common Percentage multiplied by (B)
the Share Price divided by (y) the Calculation Price (rounded to the nearest
hundredth, or if there shall not be a nearest hundredth, to the next lowest
hundredth).
"CONVERSION NUMBER" shall mean the quotient of (x) the product of (A) the
Common Percentage multiplied by (B) the Share Price divided by (y) the
Calculation Price (rounded to the nearest hundredth, or if there shall not
be a nearest hundredth, to the next lowest hundredth).
(g) Section 1.2 of the Merger Agreement is hereby amended by deleting
the references therein to the terms "Acquiror Termination Notice," "Cap Top-Up
Intent Notice," "Class B Common Stock Election Conversion Number," "Company
Termination Notice," "Conversion Number," "Designated Assets,"
"Designated Asset Fair Market Value," "Floor Top-up Intent Notice," "Put Closing
Date," "Put Exercise Notice," "Put Right" and "Put Shares."
1.2. THE MERGER. The first sentence of Section 2.1 of the Merger
Agreement is hereby amended and restated in its entirety as follows:
Upon the terms and subject to the conditions set forth in this Agreement,
and in accordance with the DGCL, the Company shall be merged with and
into Acquiror at the Effective Time (as defined in Section 2.3);
PROVIDED, HOWEVER, that if either (a) Acquiror, the Company and The
Providence Journal Company shall have received a ruling from the IRS
satisfactory to each of them (the "Ruling") by the later of (i) the fifth
Business Day after the date on which the last of the conditions set forth
in Article VIII is fulfilled or waived, other than conditions requiring
deliveries at the Closing and the condition set forth in Section 8.1(f)
and (ii) November 15, 1996 or (b) Acquiror, the Company and The
Providence Journal Company are otherwise satisfied that the receipt of
the Ruling is not necessary, upon the terms and subject to the conditions
set forth in this Agreement and in accordance with the DGCL, the Company
shall be merged with and into Company Sub at the Effective Time.
1.3. CONVERSION OF COMPANY COMMON STOCK. (a) Section 3.1(c)(i) of the
Merger Agreement is hereby amended by deleting the words "(as determined in
accordance with Section 3.1(d))" from clause (x) thereof.
(b) Section 3.1(c)(ii)(y) of the Merger Agreement is hereby amended by
deleting the words "(as determined in accordance with Section 3.1(d))" from
clause (1) thereof.
(c) Section 3.1(c)(ii)(z) of the Merger Agreement is hereby amended by
deleting the words "(as determined in accordance with Section 3.1(d))" from
clause (2) thereof.
(d) Section 3.1(d)(i) of the Merger Agreement is hereby amended by
deleting the reference to "(i)" therefrom.
(e) Section 3.1(d)(ii) of the Merger Agreement is hereby deleted in its
entirety.
1.4. COMPANY COMMON STOCK ELECTIONS; EXCHANGE FUND. (a) Section 3.2(c)
of the Merger Agreement is hereby amended by (i) inserting the clause "without
submitting a revised properly completed Election Form" following the words
"Election Form" in the last sentence thereof and (ii) amending and restating the
penultimate sentence thereof as follows:
The Election Form shall include information as to the Share Price, the
Cash Consideration Amount, the number of shares of Media Stock and Series
D Preferred Stock to be received (subject to proration pursuant to
Section 3.3) by a holder of Class B Common Stock making a Stock Election
and the number of shares of Media Stock and Series D Preferred Stock and
the amount of cash to be received by a holder of Class B Common Stock
making a Standard Election and shall state the pricing terms of the
Series D Preferred Stock.
(b) Section 3.2(e) of the Merger Agreement is hereby amended by deleting
the words "this Section 3.3" from the last sentence thereof and inserting in
lieu thereof the words "this Section 3.2".
1.5. SHARE PRICE ADJUSTMENT. Section 3.7 of the Merger Agreement is
hereby amended by (i) deleting the words "the condition set forth in Section
8.2(h) or" from the first proviso thereof, (ii) deleting the word "conditions"
from the second proviso thereof and inserting in lieu thereof the word
"condition" and (iii) deleting the word "either" from the second provisio
thereof.
1.6. CONDUCT OF BUSINESS OF THE COMPANY. Section 6.1 of the Merger
Agreement is hereby amended by deleting the words ", or take any other action a
principal purpose of which is to affect the calculation of the Determination
Price" from subsection (xxiii) thereof.
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1.7. CONDUCT OF BUSINESS OF ACQUIROR AND COMPANY SUB. Section 6.2 of the
Merger Agreement is hereby amended by (i) deleting the text of subsection (vi)
thereof and inserting in lieu thereof the words "purchase or sell (or announce
any intention or proposal to purchase or sell) shares of Media Stock for cash at
a price less than the Calculation Price (other than pursuant to employee benefit
plans in the ordinary course of business or pursuant to the U S WEST Shareowner
Investment Plan); PROVIDED, HOWEVER, that if the Closing shall not have occurred
on or prior to December 31, 1996, then Acquiror and its Subsidiaries shall have
the right to purchase (or announce any intention or proposal to purchase) shares
of Media Stock for cash at a price less than the Calculation Price after such
date" and (ii) deleting the words "and the purchase of the Put Shares pursuant
to Section 9.4" from subsection (viii) thereof.
1.8. ANTITRUST NOTIFICATION. (a) Section 7.6(c) of the Merger Agreement
is hereby amended by deleting the words "except as provided in Section 7.6(d),"
and inserting in lieu thereof the words "except with the mutual agreement of
Acquiror and the Company,".
(b) Section 7.6(d) of the Merger Agreement is hereby deleted in its
entirety.
1.9. CERTAIN ACTIONS. (a) Section 7.7(a) of the Merger Agreement is
hereby amended by deleting the reference to "(a)" therefrom.
(b) Sections 7.7(b) and 7.7(c) of the Merger Agreement are hereby
deleted in their entirety.
1.10. CONDITIONS PRECEDENT. (a) Section 8.1(b) is hereby amended by
inserting the word "and" immediately before clause (iii) and deleting clause
(iv) in its entirety.
(b) Section 8.2(h) of the Merger Agreement is hereby deleted in its
entirety and replaced with the words "[Intentionally Omitted.]".
(c) Section 8.3(c) of the Merger Agreement is hereby amended and
restated as follows:
(c) TAX OPINION. The Company shall have received an opinion of ▇▇▇▇▇▇▇▇
& Worcester LLP, dated the Closing Date, to the effect that (i) the Merger
should be treated for Federal income tax purposes as a reorganization within
the meaning of Section 368(a) of the Code; (ii) each of the Acquiror, the
Company and, in the case of the Subsidiary Merger, Company Sub should be a
party to the reorganization within the meaning of Section 368(b) of the
Code; and (iii) no gain or loss will be recognized by a stockholder of the
Company as a result of the Merger except (x) with respect to cash received
by such stockholder in lieu of fractional shares or pursuant to the exercise
of appraisal rights and (y) if a stockholder of the Company receives cash,
gain, if any, realized by such stockholder will be recognized, but only to
the extent of the cash received. In rendering such opinion, ▇▇▇▇▇▇▇▇ &
Worcester LLP, may receive and rely upon representations contained in
certificates of Acquiror, the Company, certain stockholders of the Company
and, in the case of the Subsidiary Merger, Company Sub.
1.11. TERMINATION. (a) Section 9.1 of the Merger Agreement is hereby
amended by (i) deleting the words "8.2(h)," from subsection (d) thereof, (ii)
deleting subsections (h) and (i) thereof, (iii) inserting the word "or" at the
end of subsection (f) thereof and (iv) deleting the semi-colon from the end of
subsection (g) thereof and inserting a period in lieu thereof.
(b) The text of Section 9.4 of the Merger Agreement is hereby deleted in
its entirety and replaced with the words "[Intentionally Omitted.]".
1.12. EFFECTIVENESS OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
Section 10.2 of the Merger Agreement is hereby amended by deleting the word
"9.4" therefrom.
1.13. EXHIBITS. (a) Exhibits A and D of the Merger Agreement are hereby
amended and restated in their entirety in the forms attached hereto.
(b) Exhibits E and F of the Merger Agreement are hereby deleted in their
entirety.
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ARTICLE II
MISCELLANEOUS
2.1. DEFINITIONS. Capitalized terms used in this Amendment and not
defined herein shall have the meanings ascribed thereto in the Merger Agreement.
2.2. EFFECT OF AMENDMENT; RESTATEMENT. Except as amended by this
Amendment, the Merger Agreement shall be unamended and remain in full force and
effect. The Merger Agreement, as amended by this Amendment, is hereinafter
referred to as the "Agreement", and the parties hereto hereby agree that the
Agreement may be restated to reflect the amendments provided for in this
Amendment.
2.3. APPLICABLE LAW. This Amendment shall be governed by, and construed
in accordance with, the laws of the State of Delaware without reference to
choice of law principles, including all matters of construction, validity and
performance.
2.4. COUNTERPARTS. This Amendment may be executed in one or more
counterparts and each counterpart shall be deemed to be an original, but all of
which shall constitute one and the same original.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
U S WEST, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: EXECUTIVE VICE PRESIDENT;
PRESIDENT AND CHIEF
EXECUTIVE OFFICER OF THE
U S WEST MEDIA GROUP
CONTINENTAL MERGER CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: PRESIDENT
CONTINENTAL CABLEVISION, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
Title: CHAIRMAN OF THE BOARD AND
CHIEF EXECUTIVE OFFICER
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