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EXHIBIT 2.1
AMENDMENT NO. 1 (this "Amendment") dated as
of October 13, 1999, among CINCINNATI XXXX INC., an
Ohio corporation ("CBI"), IVORY MERGER INC., a
Delaware corporation and a wholly owned subsidiary of
CBI ("Sub"), and IXC COMMUNICATIONS, INC., a Delaware
corporation ("IXC"), to the Agreement and Plan of
Merger (the "Merger Agreement") dated as of July 20,
1999, among CBI, Sub and IXC.
WHEREAS, pursuant to the Merger Agreement, CBI, Sub and IXC
have agreed to effect the Merger (such term and each other used but not defined
herein having the meaning given to it in the Merger Agreement), upon the terms
and subject to the conditions set forth in the Merger Agreement; and
WHEREAS CBI, Sub and IXC desire to amend the Merger Agreement,
upon the terms set forth in this Amendment.
NOW, THEREFORE, in consideration of the agreements contained
in this Amendment, the parties hereto agree as follows:
SECTION 1. Amendments to Section 4.03(a) of the Merger
Agreement. (a) Section 4.03(a) of the Merger Agreement is hereby amended by
inserting the following sentence immediately after the first sentence thereof:
"Notwithstanding the foregoing, in the event that,
notwithstanding compliance with the preceding sentence, IXC
receives an IXC Superior Proposal, IXC may, to the extent that
the Board of Directors of IXC determines in good faith (based
on the advice of outside counsel) that such action would, in
the absence of the foregoing proscriptions, be required by its
fiduciary duties, participate in discussions regarding any IXC
Superior Proposal in order to be informed with respect thereto
in order to make any determination permitted pursuant to
Section 4.03(b)(i). In such event, IXC shall, no less than 48
hours prior to participating in any such discussions, (i)
inform CBI of the material terms and conditions of such IXC
Superior Proposal, including the identity of the person making
such IXC Superior Proposal, (ii) inform CBI of the substance
of any discussions relating to such IXC Superior Proposal and
(iii) keep CBI
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fully informed of the status, including any change to the
details of, any such IXC Superior Proposal."
(b) Section 4.03(a) of the Merger Agreement is hereby amended
by inserting the following sentence to be the final sentence thereof:
"For purposes of this Agreement, "IXC Superior Proposal" means
any offer not solicited by IXC made by a third party to
consummate a tender offer, exchange offer, merger,
consolidation or similar transaction which would result in
such third party (or its shareholders) owning, directly or
indirectly, more than 50% of the shares of IXC Common Stock
then outstanding (or of the surviving entity in a merger) or
all or substantially all of the assets of IXC and its
Subsidiaries, taken together, and otherwise on terms which the
Board of Directors of IXC determines in good faith (based on
the advice of a financial advisor of nationally recognized
reputation) to be reasonably likely to obtain the IXC
Stockholder Approval and to provide consideration to the
holders of IXC Common Stock with a greater value than the
consideration payable in the Merger."
SECTION 2. Amendments to Section 4.04(a) of the Merger
Agreement. (a) Section 4.04(a) of the Merger Agreement is hereby amended by
inserting the following sentence immediately after the first sentence thereof:
"Notwithstanding the foregoing, in the event that,
notwithstanding compliance with the preceding sentence, CBI
receives a CBI Superior Proposal, CBI may, to the extent that
the Board of Directors of CBI determines in good faith (based
on the advice of outside counsel) that such action, would, in
the absence of the foregoing proscriptions, be required by its
fiduciary duties, participate in discussions regarding such
CBI Superior Proposal in order to be informed with respect
thereto in order to make any determination permitted pursuant
to Section 4.04(b)(i). In such event, CBI shall, no less than
48 hours prior to participating in any such discussions, (i)
inform IXC of the material terms and conditions of such CBI
Superior Proposal, including the identity of the person making
such CBI Superior Proposal, (ii) inform IXC of the substance
of any discussions relating to such CBI Superior Proposal
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and (iii) keep IXC fully informed of the status, including any
change to the details of, any such CBI Superior Proposal."
(b) Section 4.04(a) of the Merger Agreement is hereby amended
by inserting the following sentence to be the final sentence thereof:
"For purposes of this Agreement, "CBI Superior Proposal" means
any offer not solicited by CBI made by a third party to
consummate a tender offer, exchange offer, merger,
consolidation or similar transaction which would result in
such third party (or its shareholders) owning, directly or
indirectly, more than 50% of the shares of CBI Common Stock
then outstanding (or of the surviving entity in a merger) or
all or substantially all of the assets of CBI and its
Subsidiaries, taken together, and otherwise on terms which the
Board of Directors of CBI determines in good faith (based on
the advice of a financial advisor of nationally recognized
reputation) to be reasonably likely to obtain the CBI
Shareholder Approval and to provide consideration to the
holders of CBI Common Stock with a greater value than the
consideration payable in the Merger."
SECTION 3. Counterparts. This Amendment may be executed in one
or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have been
signed by each of the parties and delivered to the other parties.
SECTION 4. Governing Law. This Amendment shall be governed by,
and construed in accordance with, the laws of the State of Delaware, regardless
of the laws that might otherwise govern under applicable principles of conflict
of laws thereof, except to the extent the laws of the State of Ohio are
mandatorily applicable for the rights of CBI shareholders and directors and
corporate governance matters.
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IN WITNESS WHEREOF, CBI, Sub and IXC have caused this
Amendment to be signed by their respective officers thereunto duly authorized,
all as of the date first written above.
CINCINNATI XXXX INC.,
by /s/ XXXXXXX X. XXXXXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxxxxx
Title: President and Chief
Executive Officer
IVORY MERGER INC.,
by /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Vice President and
Secretary
IXC COMMUNICATIONS, INC.,
by /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President,
General Counsel and
Secretary
