Exhibit 2.2
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
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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
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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
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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
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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:
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(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.
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(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.
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(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.
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"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.
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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]
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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
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Name: Xxxx X. Xxxx
Title: Sr. Vice President, Mergers &
Acquisitions, and Chief
Accounting Officer
COX CLASSIC CABLE, INC.
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Vice President
TCA CABLE TV, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President - Business
Development
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