EXHIBIT-99.10
FIRST AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this
"Amendment"), dated as of August 9, 1999, is entered into by and among SW
Acquisition, L.P., a Texas limited partnership ("Parent"), ST Acquisition Corp.,
a Texas corporation ("Sub"), and TNP Enterprises, Inc., a Texas corporation (the
"Company"). Capitalized terms used in this Amendment without definition shall
have the respective meanings given to them in the Agreement (as defined below).
RECITALS
WHEREAS, the parties entered into that certain Agreement and Plan
of Merger, dated as of May 24, 1999 (the "Agreement"); and
WHEREAS, Parent and the respective Boards of Directors of the Company
and Sub desire to amend the Agreement in accordance with Section 8.03 thereof by
entering into this Amendment in the manner set forth below.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein and in the Agreement, and other good and valuable
consideration, the adequacy of which is hereby acknowledged, the parties agree
as follows:
1. Amendments.
(a) Section 2.01(e)(ii) of the Agreement is hereby amended by
adding the following at the end of such section:
Notwithstanding the preceding, the Texas-New Mexico Power Company
Thrift Plan for Employees shall not be terminated but shall be amended
effective as of the Effective Time to prohibit the issuance or grant by
the Company or any of its Subsidiaries of any interest in respect of
the capital stock of the Company or any of its Subsidiaries.
(b) Section 6.05(a) of the Agreement is hereby amended and restated
in its entirety as follows:
6.05 Employee Benefit Plans. (a) From and after the
Effective Time, Parent shall cause the Company Employee Benefit Plans
in effect at the date of this Agreement (other than the Company's
Equity Incentive Plan and the Company's Non-Employee Director Stock
Plan) to remain in effect until the first anniversary of the Effective
Time or, to the extent such Company Employee Benefit Plans (other than
the Company's Equity Incentive Plan and the Company's Non-Employee
Director Stock Plan) are not continued, Parent will cause to be
maintained until such date benefit plans which are no less favorable,
in the aggregate, to the employees covered by such Company Employee
Benefit Plans, provided, however, that nothing contained herein shall
be construed as requiring Parent or the Surviving Corporation to
continue any specific plan or to grant to any person any right to
acquire any equity securities of Parent, the Surviving Corporation or
any of their respective Subsidiaries, or as preventing Parent or the
Surviving Corporation from (a) establishing and, if necessary, seeking
shareholder approval to establish, any other benefit plans in respect
of all or any of the employees covered by such Company Employee Benefit
Plans or any other employees, or (b) amending such Company Employee
Benefit Plans (or any replacement benefit plans therefor) where
required by applicable law or where such amendment is with the consent
of the affected employees. From and after the Effective Time, Parent
shall honor, and shall cause its Subsidiaries to honor, in accordance
with its express terms, each then existing employment, change of
control, severance and termination agreement between the Company or any
of its Subsidiaries, and any officer, director or employee of such
company, including without limitation all legal and contractual
obligations pursuant to outstanding restoration plans, severance plans,
bonus deferral plans, vested and accrued benefits and similar
employment and benefit arrangements, policies and agreements that have
been disclosed to Parent as of the date hereof and other obligations,
if any, entered into in accordance with Sections 5.0l(b)(ii)(C) and
(H). The officers and directors of the Company and its Subsidiaries are
intended beneficiaries of this Section 6.05.
2. Full Force and Effect. All other terms and provisions of the
Agreement not expressly modified by this Amendment shall remain in full force
and effect and are hereby expressly ratified and confirmed.
3. Section Headings, Construction. The headings of Sections in this
Amendment are provided for convenience only and will not affect its construction
or interpretation. All words used in this Amendment will be construed to be of
such gender or number as the circumstances require. Unless otherwise expressly
provided, the word "including" does not limit the preceding words or terms.
4. Counterparts. This Amendment may be executed in counterparts,
each of which shall b e deemed an original for all purposes and all of which
shall be deemed collectively to be one agreement, but in making proof hereof
it shall be necessary to exhibit only one such counterpart.
* * * * *
IN WITNESS WHEREOF, the parties hereto have executed this Amendment to
be effective as of the date first written above.
SW ACQUISITION, L.P.
By: SW I Acquisition GP, L.P.,
as General Partner
By: XX XX Acquisition, LLC,
as General Partner
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Manager
ST ACQUISITION CORP.
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Chairman, President and
Chief Executive Officer
TNP ENTERPRISES, INC.
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: Chairman, President and
Chief Executive Officer
