1
EXHIBIT 10.76
Amendment No. 2, dated as of October 16, 1996, to
the Agreement and Plan of Merger by and among
CMI Acquisition Company, Inc., the Commodore
Media, Inc. and the stockholders and other
signatories thereto dated as of June 21, 1996.
2
SECOND AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
THIS SECOND AMENDMENT (the "Second Amendment") to the Agreement and
Plan of Merger dated as of June 21, 1996, by and among CMI Acquisition Company,
Inc. ("Mergeco"), Commodore Media, Inc. ("Commodore"), and the stockholders and
other signatories named therein, as amended on September 3, 1996 (the "Merger
Agreement"), is entered into as of October 16, 1996, by and among Mergeco,
Commodore and Xxxxx X. Xxxxxxxx, as the indemnitor representative (the
"Indemnitor Representative").
RECITALS:
WHEREAS, Mergeco, pursuant to the terms and subject to the conditions
of the Merger Agreement, and in accordance with the General Corporation Law of
the State of Delaware, will merge with and into Commodore;
WHEREAS, the parties to the Merger Agreement desire to amend the Merger
Agreement as provided herein pursuant to Section 11.5 of the Merger Agreement;
and
WHEREAS, any capitalized term used herein, and not otherwise defined
herein, shall have the meaning set forth in the Merger Agreement.
AGREEMENTS:
NOW, THEREFORE, in consideration of the foregoing and the agreements
herein contained, the parties hereto covenant and agree as follows:
1. Section 1.5 of the Merger Agreement is hereby amended and
restated to read in its entirety to read as follows:
1.5 Directors and Officers. The directors of Mergeco
immediately prior to the Effective Time shall be the directors of
the Surviving Corporation at the Effective Time, each to hold office
in accordance with the Certificate of Incorporation and Bylaws of the
Surviving Corporation, and the officers of Mergeco immediately prior to
the Effective Time shall be the officers of the Surviving Corporation
at the Effective Time until their respective successors are duly elected
or appointed and qualified.
2. Subsection 1.6(i) is hereby added to the Merger Agreement to
read as follows:
(i) Notwithstanding any other provision of this Section 1.6,
the aggregate Merger Consideration and/or Option Consideration payable
to the Indemnitors (as defined in Section 1.12) shall be reduced by
$175,000 (the "Reduction Amount"). The Reduction Amount shall be
allocated among the Indemnitors as set forth in Schedule I to this
Second Amendment.
3. Subsection 1.9(a) is hereby amended by deleting the reference
to "$4,000,000" and substitution "$3,825,000" in its place.
3
4. Section 1.12 of the Merger Agreement is hereby amended by
deleting the last sentence and substituting the following sentence in its
place:
The parties hereto agree that the Indemnification Deductible (as
defined in the Indemnification Escrow Agreement) shall equal $600,000.
5. Section 3.1(g) of the Merger Agreement is hereby amended by
adding the following sentence after the last sentence of Section 3.1(g):
On October 11, 1996, the FCC dismissed the Petition for Reconsideration
filed by Xxxxx X. Xxxxx on October 4, 1996.
6. Subsections 5.7(a) and (b) of the Merger Agreement are hereby
amended and restated to read as follows:
(a) Xxxxx X. Xxxx, Xx., Xxxxx X. Xxxxxxxx, Xxxxx Xxxxxxxxx, Xxx
Xxxxxx, Xxxxxxx XxXxxx, Xxxx Xxxxxxxx, Xxxx Xxxxxxxxxx, Xxxxx Xxxxx,
Xxxxxx Xxxxxxxx, Xxxx Xxxxx, and Xxxx Xxxxxx, collectively, shall invest
at least $1.0 million in the New Parent (as hereinafter defined) by
purchase of 1,000,000 shares of common stock, par value $0.01 per share
("New Parent Common Stock"), of the New Parent, at a price equal to
$1.00 per share. The issuance of shares of New Parent Common Stock to
each of Xxxxxxx XxXxxx, Xxxx Xxxxxxxxxx, Xxxxx Xxxxx, Xxxxxx Xxxxxxxx
and Xxx Xxxxxx is conditioned upon each such member of management
entering into a Subscription Agreement in substantially the form
attached hereto as Exhibit A, the satisfaction of the terms and
conditions set forth in such Subscription Agreement, and the New Parent
obtaining all approvals and making all filings that are necessary or
appropriate, in the judgment of the New Parent, under applicable federal
and state securities laws for the issuance of such shares of New Parent
Common Stock. The issuance of shares of New Parent Common Stock to each
of Xxxxx X. Xxxx, Xxxxx X. Xxxxxxxx, Xxxx Xxxxxxxx, Xxxx Xxxxx, Xxxxx
Xxxxxxxxx and Xxxx Xxxxxx is conditioned upon each such member of
management entering into a Subscription Agreement in substantially the
form attached hereto as Exhibit B, the satisfaction of the terms and
conditions set forth in such Subscription Agreement, and the New Parent
obtaining all approvals and making all filings that are necessary or
appropriate, in the judgment of the New Parent, under applicable federal
and state securities laws for the issuance of such shares of New Parent
Common Stock.
(b) The New Parent shall issue an option to each of the persons
set forth on Schedule II attached hereto, either on the Closing Date or
on or before the 15th business day after the Closing Date (in the case
of the options to be issued on before the 15th business day after the
Closing Date, such issuance shall be conditioned on, among other things,
the equity investment by such person of the amount set forth in the form
of Subscription Agreement attached hereto as Exhibit B), to purchase the
number of shares of New Parent Common Stock set forth beside such
person's name at an exercise price equal to $1.00 per share pursuant to
the terms and conditions of the New Parent 1996 Stock Option Plan and
the option agreements which such person shall be obligated to enter into
as a condition to receiving such option.
2
4
7. Commodore has provided written notice to Mergeco of a pending
claim (the "Xxxxxxx Claim") filed by Xxxxxxx Xxxxxxx on October 7, 1996, with
the Connecticut Commission on Human Rights and Opportunities against Commodore
Media of Norwalk, a subsidiary of Commodore. The parties hereto acknowledge and
agree that notice of the Xxxxxxx Claim and the consummation of the Merger
and the other transactions contemplated by the Merger Agreement does not
constitute a waiver of the Surviving Corporation's right to indemnification
for any Damages (as such term is defined in the Indemnification Escrow
Agreement) arising out of, relating to, or in connection with the Xxxxxxx
Claim pursuant to the terms and conditions of the Merger Agreement and the
Indemnification Escrow Agreement.
8. Except as herein specifically amended, the Merger Agreement
shall continue in full force and effect in accordance with its terms.
[Remainder of page intentionally left blank]
3
5
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first written above.
MERGECO:
CMI ACQUISITION COMPANY, INC.
-----------------------------------------
By: Xxxx X. Xxxxxx
Its: President
COMMODORE:
COMMODORE MEDIA, INC.
/s/ Xxxxx X. Xxxxxxxx
----------------------------------------------
By: Xxxxx X. Xxxxxxxx
Its: President and Chief Executive Officer
INDEMNITOR REPRESENTATIVE:
/s/ Xxxxx X. Xxxxxxxx
-----------------------------------------------
Xxxxx X. Xxxxxxxx, as Indemnitor Representative
6
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first written above.
MERGECO:
CMI ACQUISITION COMPANY, INC.
/s/ Xxxx X. Xxxxxx
----------------------------------
By: Xxxx X. Xxxxxx
Its: President
COMMODORE:
COMMODORE MEDIA, INC.
---------------------------------
By: Xxxxx X. Xxxxxxxx
Its: President and Chief Executive Officer
INDEMNITOR REPRESENTATIVE:
---------------------------------
Xxxxx X. Xxxxxxxx, as Indemnitor Representative
