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AMENDMENT No. 1 (this "Amendment") dated as of
March 6, 2000, by and among AT&T Corp. ("Parent"),
B-Group Merger Corp. ("Merger Sub"), Liberty Media
Corporation ("Liberty") and The Todd-AO
Corporation (the "Company"), to the Agreement and
Plan of Merger dated as of December 10, 1999 (the
"Merger Agreement"), among Parent, Merger Sub,
Liberty and the Company.
WHEREAS Parent, Merger Sub, Liberty and the Company are parties
to the Merger Agreement, which provides, among other things, for the merger of
Merger Sub with and into the Company (the "Merger"); and
WHEREAS, for the mutual convenience of the parties hereto (and
not in derogation of the agreements of the parties set forth in the Merger
Agreement), the parties hereto desire to amend the Merger Agreement to (i) amend
the restrictions on matters to be acted on by the Company's stockholders at the
Special Meeting, (ii) replace Exhibit 2.2(c) of the Merger Agreement, the
Restated Certificate of Incorporation of The Todd-AO Corporation, with the
attached Annex A, in order to accommodate the vote of the Company's stockholders
on certain post-merger business combinations contemplated by the Livewire
Contribution Agreement (as defined herein) by increasing the authorized stock of
the Company after the Merger, (iii) extend the deadline for the termination of
the Merger Agreement (as provided in Section 9.1(ii) of the Merger Agreement) to
June 9, 2000 and (iv) make the delivery of the tax opinion by Baker Botts L.L.P.
(formerly known as Baker & Botts, L.L.P.) a non-waivable condition to the
completion of the Merger.
NOW, THEREFORE, in consideration of the premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do hereby agree as follows:
1. Capitalized Terms. Capitalized terms used in this Amendment
and not otherwise defined shall have the meanings attributed to such terms in
the Merger Agreement.
2. Amendments to the Merger Agreement.
(a) The Merger Agreement is hereby amended by deleting
from Section 3.1 of the Merger Agreement the sentence that reads "The only
matters the Company shall propose to be acted on by the Company's stockholders
at the Special Meeting shall be the
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Merger Proposals." and inserting in lieu thereof the following sentence: "The
only matters the Company shall propose to be acted on by the Company's
stockholders at the Special Meeting shall be (i) the Merger Proposals and (ii)
such other matters as the Company and Liberty shall mutually agree."
(b) The Merger Agreement is hereby further amended by
deleting, in its entirety, the form of Exhibit 2.2(c) attached to the Merger
Agreement as originally executed, and substituting therefor the form of such
Exhibit attached to this Amendment as Annex A. All references in the Merger
Agreement to the foregoing Exhibit shall be deemed to refer to such Exhibit as
amended hereby.
(c) The Merger Agreement is hereby further amended by
deleting, in its entirety, Section 9.1(ii) of the Merger Agreement and inserting
in lieu thereof the following:
"(ii) by any of the Company, Parent or Liberty: (A) if the
Merger shall not have been consummated on or before June 9, 2000, provided that
the right to terminate this Agreement pursuant to this clause (ii)(A) shall not
be available to any party whose failure to perform any of its obligations under
this Agreement resulted in, or has been the cause or a substantial cause of, the
failure of the Merger to be consummated on or before such date, (B) if there has
been a material breach of any representation, warranty, covenant or agreement on
the part of any other party contained in this Agreement, in each case that is
not curable, such that the conditions set forth in Sections 8.2(a) or (b) or
Sections 8.3(a) or (b), in the case of such a breach by the Company, or Sections
8.4(a) or (b), in the case of such a breach by Parent, Merger Sub or Liberty,
cannot be satisfied, (C) if any court of competent jurisdiction or other
competent Governmental Entity shall have issued an order, decree or ruling or
taken any other action permanently restraining, enjoining or otherwise
prohibiting the Merger and such order, decree, ruling or other action shall have
become final and nonappealable, or (D) the stockholders of the Company fail to
approve and adopt the Merger by the requisite vote (I) at the Special Meeting,
or (II) by the date one day prior to the applicable date referred to in (A)
above, provided that the S-4 Registration Statement became effective (unless the
failure of the S-4 Registration Statement to become effective is the result of
the Company's material breach of Section 3.2(a)) and remained effective such
that the Proxy Statement could be mailed to the Company stockholders and the
Special Meeting held prior to such applicable date (provided that Parent shall
not terminate this Agreement pursuant to this clause (D) without the concurrence
of Liberty); or".
(d) The Merger Agreement is hereby further amended by
adding to the end of Section 10.7 of the Merger Agreement, the following
sentence: "Notwithstanding the foregoing provisions of this Section 10.7, the
conditions contained in Sections 8.2(f), 8.3(e) and 8.4(f) of this Agreement may
not be waived by the parties hereto."
3. Representations and Warranties.
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(a) The Company hereby represents and warrants to Parent,
Merger Sub and Liberty as follows:
(i) The execution, delivery and performance by the Company
of this Amendment, the amendment of the Merger Agreement as provided
herein and the consummation of the transactions contemplated by the
Merger Agreement as amended hereby have been duly and validly authorized
by the Company Board and by all other corporate action on the part of
the Company, subject, in the case of the consummation by it of the
Reclassification and the Merger, to the approval of the Company's
stockholders.
(ii) This Amendment has been duly executed and delivered
by the Company, and each of this Amendment and the Merger Agreement as
amended hereby is a legal, valid and binding obligation of the Company,
enforceable in accordance with its terms (except as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally, or by
principles governing the availability of equitable remedies).
(b) Parent hereby represents and warrants to the Company
and Liberty, as follows:
(i) This Amendment has been duly executed and delivered by
Parent and Merger Sub. Each of Parent and Merger Sub has all requisite
corporate power and authority to enter into this Amendment. The
execution and delivery by Parent and Merger Sub of this Amendment, have
been duly and validly authorized by all necessary corporate action on
the part of Parent and Merger Sub.
(c) Liberty hereby represents and warrants to Parent and
the Company as follows:
(i) This Amendment has been duly executed and delivered by
Liberty. Liberty has all requisite corporate power and authority to
enter into this Amendment and to amend the Merger Agreement as provided
herein and to perform its obligations under the Merger Agreement as
amended hereby and to consummate the transactions contemplated thereby.
The execution, delivery and performance by Liberty of this Amendment,
the amendment of the Merger Agreement as provided herein and the
consummation by Liberty of the transactions contemplated by the Merger
Agreement as amended hereby have been duly and validly authorized by all
necessary corporate action on its part. Each of this Amendment and the
Merger Agreement as amended hereby is a legal, valid and binding
obligation of Liberty, enforceable in accordance with its terms (except
insofar as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally, or by principles governing the availability
of equitable remedies).
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4. Additional Proposals at the Special Meeting. Liberty and the
Company hereby agree that the Company's stockholders will also vote on the
following proposals at the Special Meeting:
(i) a proposal to authorize the issuance of additional shares of
Surviving Corporation Class B Stock, after the Merger is consummated, pursuant
to the Agreement, dated as of February 11, 2000, between Liberty and the Company
(the "Livewire Contribution Agreement"), which is attached as Annex B hereto;
and
(ii) the change of the Company's corporate name, after the Merger
is consummated, to "Liberty Livewire Corporation".
5. Full Force and Effect. Except as expressly provided in this
Amendment, the Merger Agreement shall remain unchanged and in full force and
effect.
6. Counterparts. This Amendment may be executed and delivered in
any number of counterparts, all of which taken together shall constitute one and
the same instrument, and any of the parties hereto may execute this Amendment by
signing any such counterpart.
7. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of Delaware, without regard
to the conflict of laws rules thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be executed as of the day and year first above written.
AT&T CORP.
By:/s/ Marilyn J. Wasser
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Name: Marilyn J. Wasser
Title: Vice President - Law and Secretary
THE TODD-AO CORPORATION
By:/s/ Salah M. Hassanein
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Name: Salah M. Hassanein
Title: President & CEO
LIBERTY MEDIA CORPORATION
By:/s/ Charles Y. Tanabe
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Name: Charles Y. Tanabe
Title: Senior Vice President
B-GROUP MERGER CORP.
By:/s/ Marilyn J. Wasser
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Name: Marilyn J. Wasser
Title: Treasurer
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