EXHIBIT 99.1
VOTING AGREEMENT
AGREEMENT, dated as of May 11, 1999, by and among Xxx Communications, Inc.,
a Delaware corporation ("Parent"), TCA Cable TV, Inc., a Texas corporation (the
"Company"), and Xxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxxx, Xxx X. Xxxxx, M.D., X. X.
Xxxxx, Xx., X. X. Xxxxx, III, Xxxxx X. XxXxxxxx, Xxxxxx XxXxxxxx, Xxxxxxx X.
Xxxxxx, Xxxxxx X. Xxxxxxxx, Xxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxx, Xxxxxxx Xxxxxx
Xxxxxxx and Xxxxxx Venture Enterprises, Inc., a Texas corporation (collectively,
the "Stockholders" and individually a "Stockholder"), each of whom is a
shareholder of the Company.
WHEREAS, concurrently herewith, Parent, Cox Classic Cable, Inc., a Delaware
corporation and a wholly owned subsidiary of Parent ("Merger Sub"), and the
Company, are entering into an Agreement and Plan of Merger (the "Merger
Agreement"; capitalized terms used without definition herein having the meanings
ascribed thereto in the Merger Agreement);
WHEREAS, each Stockholder is the record or beneficial owner of the number
of Shares (as that term is defined below) set forth opposite such Stockholder's
name in Schedule I hereto;
WHEREAS, approval of the Merger Agreement by the Company's shareholders is
a condition to the consummation of the Merger;
WHEREAS, the Board of Directors of the Company has, prior to the execution
of this Agreement, duly and validly approved and adopted the Merger Agreement
and approved this Agreement, pursuant to Part 13 of the TBCA and all other
relevant provisions of the TBCA, and such approvals and adoption have not been
withdrawn; and
WHEREAS, Parent is unwilling to enter into the Merger Agreement unless the
Stockholders enter into this Agreement concurrently with the execution of the
Merger Agreement, and the Stockholders desire and are willing to induce Parent
to enter into the Merger Agreement by their entry into this Agreement;
NOW THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements set forth herein, the parties hereto agree as follows:
Section 1. Consent; Agreement to Vote. (a) Each Stockholder hereby agrees
(for itself and not as to any other Stockholder) that, during the term of this
Agreement, it shall, from time to time, (i) at the request of Parent, execute
and deliver (or cause to be executed and delivered) a written consent with
respect to, or (ii) vote, or cause to be voted, at any meeting of shareholders
of the Company or at any adjournment or postponement thereof, in person or by
proxy, all shares of common stock, all rights under the Company Rights
Agreement, and any other voting securities of the Company (whether acquired
heretofore or hereafter), that are owned of record and beneficially by such
Stockholder or as to which such Stockholder has, directly or indirectly, the
right to vote or direct the voting (such Stockholder's "Shares"), (x) in favor
of approval and adoption of the Merger Agreement, the Merger and any action
required in furtherance thereof, (y) against any action or agreement that would
result in a material breach of any representation, warranty, covenant or
obligation of the Company contained in the Merger
Agreement, and (z) against any Competing Transaction (as defined below). Each
Stockholder agrees, during the term hereof, not to execute any written consent
in lieu of a shareholders meeting or vote of the shareholders of the Company, if
such consent or vote by the shareholders of the Company would be inconsistent
with or frustrate the purposes of the other agreements of such Stockholder
pursuant to this Section. A "Competing Transaction" means any of the following,
received or proposed, (A) any Acquisition Proposal, (B) any other proposed
alternative transaction to sell, transfer or otherwise dispose of 15% or more of
the capital stock or assets of the Company, (C) any proposed recapitalization or
reorganization of the Company (other than a reincorporating merger or a holding
company merger that in either case results in the shareholders of the Company
owning all of the equity interests in the surviving corporation and any
reorganization that involves only the subsidiaries of the Company), (D) any
change in the majority of the persons who constitute the Board of Directors of
the Company, other than in the ordinary course of business, (E) any material
amendment to the articles of incorporation of the Company or (F) any other
proposal that frustrates or hinders the Merger or the other transactions
contemplated by the Merger Agreement.
(b) Each Stockholder hereby appoints Parent and any designee of Parent,
each of them individually, such Stockholder's proxy and attorney-in-fact
pursuant to the provisions of Article 2.29(C) of the TBCA with full power of
substitution and resubstitution, to vote and act on such Stockholder's behalf
and in such Stockholder's name, place and stead with respect to the
Stockholder's Shares, at any annual, special or other meeting of the
shareholders of the Company, and at any adjournment or postponement of any such
meeting, held during the term of this Agreement and to act by written consent
with respect to such Stockholder's Shares, at all times during the term of this
Agreement with respect to the matters referred to in, and in accordance with,
Section 1(a) hereof. This proxy is given to secure the performance of the duties
of such Stockholder under this Agreement. Each Stockholder affirms that this
proxy is coupled with an interest and shall be irrevocable. Each Stockholder
shall take such further action or execute such other instruments as may be
necessary to effectuate the intent of this proxy.
(c) Each Stockholder agrees that it will not contract to sell, sell or
otherwise pledge, encumber, transfer or dispose of any of the Shares owned by it
or any interest therein or securities convertible thereinto or any voting rights
with respect thereto, other than pursuant to the Merger or with Parent's prior
written consent.
(d) Each Stockholder hereby revokes any and all previous proxies with
respect to such Stockholder's Shares and agrees that it will not grant any other
proxies to vote any or all of its Shares.
(e) Each Stockholder hereby agrees to cooperate reasonably with Parent and
the Company in connection with the Merger Agreement and consummation of the
transactions contemplated thereby. Each Stockholder agrees that it will not, and
will use reasonable best efforts to cause its officers, employees,
representatives and agents not to, directly or indirectly, encourage, solicit or
engage in discussions or negotiations with any third party (other than
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Parent) concerning any Acquisition Proposal. Each Stockholder shall, and shall
use reasonable best efforts to cause its officers, employees, representatives
and agents to, terminate all discussions or negotiations with any Person with
respect to any Acquisition Proposal. Each such Stockholder will notify Parent
immediately of any Acquisition Proposal (or inquiries with respect thereto) that
are received by, or any negotiations or discussions with respect thereto of
which it is aware that are sought to be initiated with, such Stockholder, will
advise Parent of the identity of any Person making any such Acquisition Proposal
and of the terms thereof and shall keep Parent apprised with respect to all
matters relating thereto.
Section 2. Securities Act Covenants and Representations. In addition to,
and not in lieu of, the other covenants and representations set forth herein,
each Stockholder hereby agrees and represents to Parent as follows:
(a) Such Stockholder understands that, to the extent such Stockholder is
considered an "affiliate" of the Company at the time the Merger Agreement is
submitted for a vote of the shareholders of the Company or for action by written
consent of shareholders of the Company, any public offering, sale or other
disposition by such Stockholder of any Parent Class A Common Stock received by
such Stockholder in the Merger (collectively, the "Restricted Sales") will,
under current law, require any of (i) the further registration under the
Securities Act of any Parent Class A Common Stock to be sold by such
Stockholder, (ii) compliance with applicable provisions of Rule 145 promulgated
by the SEC under the Securities Act or (iii) the availability of another
exemption from such registration under the Securities Act. Each Stockholder
agrees not to make any Restricted Sale unless the conditions of clause (i),
(ii), or (iii) are met.
(b) Such Stockholder also understands that stop transfer instructions will
be given to Parent's transfer agent with respect to the Parent Class A Common
Stock and that a legend will be placed on the certificates for the Parent Class
A Common Stock, issued to such Stockholder, or any substitutions therefor to
reflect the restrictions referred to in Section 2 (a) on such Stockholder's
ability to sell Parent Class A Common Stock.
Section 3. Other Covenants and Agreements.
(a) Each Stockholder hereby consents, for purposes of any shareholders'
agreement or other agreement or commitment among the shareholders of the
Company, to the execution, delivery and performance of this Agreement by each
other Stockholder (and waives any rights such Stockholder would otherwise have
pursuant to any such shareholders' agreement or other agreement or commitment by
virtue of the execution, delivery or performance of this Agreement).
(b) Each party shall execute and deliver such additional instruments and
other documents and shall take such further actions as may be necessary or
appropriate to effectuate, carry out and comply with all of its obligations
under this Agreement. Without limiting the generality of the foregoing, none of
the parties hereto shall enter into any agreement or
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arrangement (or alter, amend or terminate any existing agreement or arrangement)
if such action would materially impair the ability of such party to effectuate,
carry out or comply with all of the terms of this Agreement.
(c) Each Stockholder hereby waives any rights of appraisal or rights to
dissent from the Merger that such Stockholder may have under the TBCA.
(d) The Company hereby acknowledges receipt of an executed copy of this
Agreement and agrees to deposit such copy in its corporate records and to make
it available for inspection by the shareholders of the Company and otherwise to
comply with the provisions of Article 2.30 of the TBCA.
(e) Each Stockholder agrees to deliver all certificates held by it
representing any of the Shares to the Company promptly following the execution
hereof. The Company shall place on each such certificate a legend reciting this
Agreement and otherwise comply with the requirements of Article 2.30 of the TBCA
and return such legended certificates to the Stockholders.
Section 4. Representations and Warranties of Parent. Parent represents and
warrants to each Stockholder as follows:
(a) This Agreement has been approved by the Board of Directors of Parent,
representing all necessary corporate action on the part of Parent for the
execution, delivery and performance hereof by Parent (no action by the
stockholders of Parent being required).
(b) This Agreement has been duly executed and delivered by a duly
authorized officer of Parent.
(c) This Agreement constitutes a valid and binding agreement of Parent,
enforceable against Parent in accordance with its terms.
(d) The execution and delivery of this Agreement by Parent does not violate
or breach, and will not give rise to any violation or breach, of Parent's
charter or bylaws, or, except as will not materially impair its ability to
effectuate, carry out or comply with all of the terms of this Agreement, any
law, contract, instrument, arrangement or agreement by which Parent is bound.
Section 5. Representation and Warranties of the Stockholders. Each
Stockholder, as to such Stockholder, only, represents and warrants to Parent as
follows:
(a) Schedule I sets forth, opposite such Stockholder's name, the number and
type of such Stockholder's Shares as of the date hereof. Such Stockholder is the
lawful owner of such Shares, free and clear of all liens, charges, encumbrances,
voting agreements and commitments of every kind, other than this Agreement and
as disclosed on Schedule I. Except
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as set forth in Schedule I and except under the Company Rights Agreement, such
Stockholder does not own or hold any rights to acquire any additional Shares or
other securities of the Company or any interest therein or any voting rights
with respect to any additional Shares or any other securities of the Company.
(b) If such Stockholder is not an individual, this Agreement has been
approved by its Board of Directors (or comparable governing body) and, to the
extent necessary, the shareholders of such Stockholder, representing all
necessary action on the part of such Stockholder for the execution and
performance hereof by such Stockholder.
(c) If such Stockholder is not an individual, this Agreement has been duly
executed and delivered by a duly authorized officer or comparable representative
of such Stockholder.
(d) This Agreement constitutes the valid and binding agreement of such
Stockholder, enforceable against such Stockholder in accordance with its terms.
(e) The execution, delivery and performance of this Agreement by such
Stockholder does not violate or breach, and will not give rise to any violation
or breach, of such Stockholder's charter or bylaws or other organizational
documents (if such Stockholder is not an individual), or, except as will not
materially impair the ability of such Stockholder to effectuate, carry out or
comply with all of the terms of this Agreement, any law, contract, instrument,
arrangement or agreement by which such Stockholder is bound.
(f) The execution and delivery of this Agreement by such Stockholder and
the other signatories hereto does not create or give rise to any right in such
Stockholder or, to such Stockholder's knowledge, in any other signatory hereto,
with respect to the Shares or any other security of the Company (including,
without limitation voting rights and rights to purchase or sell any such Shares
or other securities) pursuant to any shareholders' agreement or similar
agreement or commitment, other than any such right as is duly and validly waived
pursuant to Section 3 (a) of this Agreement.
Section 6. Effectiveness and Termination. This Agreement shall
automatically terminate and be of no further force or effect upon the earliest
to occur of (a) the Effective Time, (b) the termination of the Merger Agreement
pursuant to Section 9.1(a), 9.1(b)(i), 9.1(b)(ii), 9.1(d)(iii), 9.1(c)(iii) or
9.1(d)(i) thereof and (c) the date that is six months after any other
termination of the Merger Agreement. Upon the termination hereof, except for any
rights any party may have in respect of any breach by any other party of its
obligations hereunder, none of the parties hereto shall have any further
obligations or liability hereunder.
Section 7. Miscellaneous.
(a) Notices, Etc. All notices, requests, demands, or other communications
required by or otherwise with respect to this Agreement shall be in writing and
shall be deemed
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to have been duly given to any party when delivered personally (by courier
service or otherwise), when delivered by telecopy and confirmed by return
telecopy, or seven days after being mailed by first-class mail, postage prepaid
in each case to the applicable addresses set forth below:
If to Parent:
Xxx Communications, Inc.
0000 Xxxx Xxxxx Xxxxx, X.X.
Xxxxxxx, Xxxxxxx
Attention: Legal Department
Facsimile: (000) 000-0000
with a copy to:
Dow, Xxxxxx & Xxxxxxxxx
0000 Xxx Xxxxxxxxx Xxx., X.X.
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
If to the Company:
TCA Cable TV, Inc.
0000 X.X.X. Xxxx 000
Xxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx
Attn: Xxxx Xxxxx
Telecopy: (000) 000-0000
If to any Stockholder, at its address set forth on Schedule I.
or to such other address as such party shall have designated by notice receive
by each other party.
(b) Amendments, Waivers, Etc. This Agreement may not be amended, changed,
supplemented, waived or otherwise modified or, except as expressly set forth in
Section 6, terminated, except by an instrument in writing signed by Parent and
each other party to be bound thereby.
(c) Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of and be enforceable by the parties and their respective
successors and assigns; provided that, except as contemplated by the Merger
Agreement, neither the rights nor
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the obligations of any party may be assigned or delegated without the prior
written consent of the other parties.
(d) Entire Agreement. This Agreement (together with the Merger Agreement
and the other agreements and documents expressly contemplated hereby and
thereby, including the Confidentiality Agreement) embodies the entire agreement
and understanding among the parties relating to the subject matter hereof and
supersedes all prior agreements and understandings relating to such subject
matter. There are no representations, warranties or covenants by the parties
hereto relating to such subject matter other than those expressly set forth in
this Agreement and the Merger Agreement.
(e) Severability. If any terms of this Agreement or the application thereof
to any party or circumstances shall be held invalid or unenforceable to any
extent, the remainder of this Agreement and the application of such term to the
other parties or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by applicable law, provided that, in
such event, the parties shall negotiate in good faith in an attempt to agree to
another provision (in lieu of the term or application held to be in valid or
unenforceable) that will be valid and enforceable and will carry out the
parties' intentions hereunder.
(f) Specific Performance. The parties acknowledge that money damages are
not an adequate remedy for violations of this Agreement and that any party may,
in its sole discretion, apply to a court of competent jurisdiction for specific
performance or injunctive or such other relief as such court may deem just and
proper in order to enforce this Agreement or prevent any violation hereof, and,
to the extent permitted by applicable law, each party waives any objection to
the imposition of such relief or any requirement for a bond.
(g) Remedies Cumulative. All rights, powers and remedies provided under
this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise or beginning of the
exercise of any thereof by any party shall not preclude the simultaneous or
later exercise of any other such right, power or remedy by such party.
(h) No Waiver. The failure of any party hereto to exercise any right, power
or remedy provided under this Agreement or otherwise available in respect hereof
at law or in equity, or to insist upon compliance by any other party hereto with
its obligations hereunder, and any custom or practice of the parties at variance
with the terms hereof, shall not constitute a waiver by such party of its right
to exercise any such or other right, power or remedy or to demand such
compliance.
(i) No Third Party Beneficiaries. This Agreement is not intended to be for
the benefit of and shall not be enforceable by any person or entity who or which
is not a party hereto.
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(j) Jurisdiction. Each party hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts of applicable jurisdiction in
Dallas County, Texas, in any action, suit or proceeding arising in connection
with this Agreement, and agrees that any such action, suit or proceeding shall
be brought only in such court (and waives any objection based on forum non
conveniens or any other objection to venue therein); provided, however, that
such consent to jurisdiction is solely for the purpose referred to in this
paragraph (j) and shall not be deemed to be a general submission to the
jurisdiction of said Courts or in the State of Delaware other than for such
purposes. Each party hereto hereby waives any right to a trial by jury in
connection with any such action, suit or proceeding. To the maximum extent
practicable, this Agreement will be deemed to call for performance in Dallas
County, Texas.
(k) Governing Law. This Agreement and all disputes hereunder shall be
governed by and construed and enforced in accordance with the internal laws of
the State of Texas, without regard to principles of conflicts of law.
(l) Name, Captions, Gender. The name assigned this Agreement and the
section captions used herein are for convenience of reference only and shall not
affect the interpretation or construction hereof. Whenever the context may
require, any pronoun used herein shall include the corresponding masculine,
feminine or neuter forms.
(m) Counterparts. This Agreement may be executed in any number of
counterparts, each which shall be deemed to be an original, but all of which
together shall constitute one instrument. Each counterpart may consist of a
number of copies each signed by less than all, but together signed by all, the
parties hereto.
(n) Expenses. Each of Parent and each Stockholder shall bear its own
expenses incurred in connection with this Agreement; provided, however, that in
the event of a dispute concerning the terms or enforcement of this Agreement,
the prevailing party in any such dispute shall be entitled to reimbursement of
reasonable legal fees and disbursement from the other party or parties to such
dispute; and provided, further, that if the Merger is consummated in accordance
with the Merger Agreement, Parent shall cause the Company to reimburse the
Stockholders for their reasonable expenses in connection with this Agreement.
(o) Action in Stockholder Capacity Only. No Stockholder who is a director
or officer of the Company makes any agreement in this Agreement in his or her
capacity as such director or officer. Each Stockholder signs solely in its
capacity as a record holder and beneficial owner of Shares. The provisions of
this Agreement shall not apply to actions taken or omitted to be taken by any
such person in his or her capacity as a director or officer of the Company.
(p) Obligations Several. The obligations of each Stockholder under this
Agreement shall be several and not joint. No Stockholder shall have any
liability, duty or obligation arising out of or resulting from any failure by
any other Stockholder to comply with the terms and conditions of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
Parent:
XXX COMMUNICATIONS, INC.
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: Vice President, Mergers and Acquisitions
Stockholders:
/s/ Xxxx X. Xxxxxxx
-------------------
Xxxx X. Xxxxxxx
Address: TCA Cable TV, INC.
0000 X.X.X. Xxxx 000
Xxxxx, Xxxxx 00000
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Xxxxxxx X. Xxxxxxxx
Address: TCA Cable TV, INC.
0000 X.X.X. Xxxx 000
Xxxxx, Xxxxx 00000
/s/ Xxx X. Xxxxx, M.D.
-------------------
Xxx X. Xxxxx, M.D.
Address: TCA Cable TV, INC.
0000 X.X.X. Xxxx 000
Xxxxx, Xxxxx 00000
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/s/ X.X. Xxxxx, Xx.
-------------------
X.X. Xxxxx, Xx., Individually
and as Trustee or Partner (as the case may be) of:
Xxxxx Family Partnership
Xxxxx Charitable Trust
Address: TCA Cable TV, INC.
0000 X.X.X. Xxxx 000
Xxxxx, Xxxxx 00000
/s/ X.X. Xxxxx, Xx.
-------------------
X.X. Xxxxx, Xx.
/s/ X.X. Xxxxx, III
-------------------
X.X. Xxxxx, III
each as Trustee or Partner (as the case may be) of:
Xxxxxx Xxxxxxxxx Xxxx Xx. 0 Xxxxx
Xxxxxx Xxxxxxx Xxxx Xx.0 Trust
Xxxxxx Xxxxxx Xxxx No.1 Trust
Xxxxxx Xxxxx Xxxx No.1 Trust
Xxxxxxx Xxxxx Xxxx No.1 Trust
Xxxxxx Xxxxxxx Xxxxxx No.1 Trust
Xxxxxx Xxxxxxxxx Xxxx '89 Trust
Xxxxxx Xxxxxxx Xxxx '89 Trust
Xxxxxx Xxxxxx Xxxx '89 Trust
Xxxxxx Xxxxx Xxxx '89 Trust
Xxxxxxx Xxxxx Kerrr '89 Trust
Xxxxxx Xxxxxxx Xxxxx '89 Trust
Xxxxx Family Partnership
X.X. Xxxxx, Xx. Charitable Trust.
Address: TCA Cable TV, INC.
0000 X.X.X. Xxxx 000
Xxxxx, Xxxxx 00000
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/s/ Xxxxx X. XxXxxxxx
-------------------
Xxxxx X. XxXxxxxx
Address: TCA Cable TV, INC.
0000 X.X.X. Xxxx 000
Xxxxx, Xxxxx 00000
/s/ Xxxxxx XxXxxxxx
-------------------
Xxxxxx XxXxxxxx
as Trustee of:
Childrens' Trusts
Address: TCA Cable TV, INC.
0000 X.X.X. Xxxx 000
Xxxxx, Xxxxx 00000
/s/ Xxxxxxx X. Xxxxxx
-------------------
Xxxxxxx X. Xxxxxx, Individually
and as Trustee of:
Xxxxxx Family Trust
Ryan's Account (UGMA)
Austin's Account (UGMA)
Address: TCA Cable TV, INC.
0000 X.X.X. Xxxx 000
Xxxxx, Xxxxx 00000
/s/ Xxxxxx X. Xxxxxxxx
-------------------
Xxxxxx X. Xxxxxxxx
Address: TCA Cable TV, INC.
0000 X.X.X. Xxxx 000
Xxxxx, Xxxxx 00000
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/s/ Xxxxxx X. Xxxxxx
-------------------
Xxxxxx X. Xxxxxx
Address: TCA Cable TV, INC.
0000 X.X.X. Xxxx 000
Xxxxx, Xxxxx 00000
XXXXXX VENTURE ENTERPRISES, INC..
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title:
Address: TCA Cable TV, INC.
0000 X.X.X. Xxxx 000
Xxxxx, Xxxxx 00000
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/s/ Xxxxxxx X. Xxxxxx
-------------------
Xxxxxxx X. Xxxxxx
Address: TCA Cable TV, INC.
0000 X.X.X. Xxxx 000
Xxxxx, Xxxxx 00000
/s/ Xxxxxxx Xxxxxx Wangner
-------------------
Xxxxxxx Xxxxxx Xxxxxxx
Address: TCA Cable TV, INC.
0000 X.X.X. Xxxx 000
Xxxxx, Xxxxx 00000
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Company:
TCA CABLE TV, INC.
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Chairman, Chief Executive Officer and President
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Pursuant to Item 601(b)(2) of Regulation S-K, the following schedule and annexes
have been omitted. Xxx Communications, Inc. will furnish supplementally to
the Securities and Exchange Commission a copy of of any such omitted schedule
or annex upon request.
Schedule I -- List of Stockholders
