(..continued)
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.
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
Sullivan & 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, Sullivan & Worcester
LLP, may receive and rely upon representa-tions 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.
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.
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/ Charles M. Lillis
Name: Charles M. Lillis
Title: Executive Vice President; President and
Chief Executive Officer of the U S WEST Media Group
CONTINENTAL MERGER CORPORATION
By:/s/ Charles M. Lillis
Name: Charles M. Lillis
Title: President
CONTINENTAL CABLEVISION, INC.
By:/s/ Amos B. Hostetter, Jr.
Name: Amos B. Hostetter, Jr.
Title: Chairman of the Board and Chief
Executive Officer