EXHIBIT 2.1
AMENDMENT NO. 1 TO
AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER, dated
as of August 20, 1999, is among WESTWOOD ONE, INC., a Delaware corporation
("Parent"), COPTER ACQUISITION CORP., a Delaware corporation and a wholly owned
subsidiary of Parent ("Merger Sub"), and METRO NETWORKS, INC., a Delaware
corporation (the "Company").
WHEREAS, the parties have entered into the Agreement and
Plan of Merger, dated as of June 1, 1999, providing for the merger of Merger Sub
into the Company, with the Company continuing as the surviving corporation ( the
"Original Agreement"); and
WHEREAS, the parties wish to amend, and grant certain
consents and waivers under, the Original Agreement, upon the terms and subject
to the conditions herein.
NOW, THEREFORE, in consideration of the premises and the
mutual representations, warranties, covenants and agreements herein contained,
Parent, Merger Sub and the Company hereby agree, in accordance with Sections 7.6
and 7.7 of the Original Agreement, as follows:
1. Amendments.
(a) Section 3.11(b) of the Original Agreement (Employee
Plans) is hereby amended by changing the references therein from "Company Plans"
to "Company Employee Benefit Plans".
(b) Section 4.1(b) of the Original Agreement (Organization
and Qualification; Subsidiaries) is hereby amended by changing the last two
words in such Section from "the Company" to "Parent".
(c) The first sentence of Section 4.2(a) of the Original
Agreement (Capitalization of Parent and Its Subsidiaries) is hereby amended to
read in its entirety as follows:
"The authorized capital stock of Parent consists of: (i)
117,000,000 shares of Parent Common Stock, of which, as of June 1, 1999,
27,996,135 shares were issued and outstanding, excluding 7,058,595 shares which
were held in treasury, (ii) 3,000,000 shares of Class B Stock, par value $.01
per share ("Parent Class B Stock"), of Parent, of which, as of June 1, 1999,
351,733 shares were issued and outstanding and (iii) 10,000,000 shares of
Preferred Stock, par value $.01 per share, none of which was outstanding as of
June 1, 1999."
(d) Section 4.11(b) of the Original Agreement (Employee
Plans) is hereby amended by changing the references therein from "Parent Plans"
to "Parent Employee Benefit Plans".
(e) The penultimate sentence of Section 5.9 of the Original
Agreement (Additional Agreements; Reasonable Best Efforts) is hereby amended to
read in its entirety as follows:
"Subject to the terms and conditions of this Agreement, Parent, Merger Sub and
the Company agree to use all reasonable efforts to cause the Effective Time to
occur as soon as practicable after the later to occur of the Parent Stockholders
Meeting and the Metro Stockholders Meeting."
(f) The fourth sentence of Section 5.17 of the Original
Agreement (Employee Benefits) is hereby amended to read in its entirety as
follows:
"Parent shall cause to be waived any pre-existing condition limitation under its
or its affiliates' welfare plans that might otherwise apply to such employee or,
to the extent applicable, a former employee."
(g) Section 5.18 of the Original Agreement (Parent Board)
is hereby amended to read in its entirety as follows:
"5.18 Parent Board. Parent shall take all necessary action to cause
Xxxxxxxxxx to be appointed to Class III of the Parent Board and a designee
selected by Xxxxxxxxxx to be appointed to Class I of the Parent Board as of
the close of business on the date on which the Effective Time occurs and to
serve until the next election of directors of the respective class to which
such individual is appointed."
2. Waiver. The parties hereto hereby waive all obligations under
Section 5.7 of the Original Agreement (Accountants' Letters) to cause to be
delivered the accountants' letters contemplated by such Section 5.7.
3. Permitted Stock Repurchases by Parent. The Company hereby confirms
that, notwithstanding anything to the contrary contained in Section 5.2(c) of
the Original Agreement, it has consented to the repurchase by Parent of shares
of Parent Common Stock with a market value (based on the purchase price thereof)
of up to $20 million at prevailing market prices pursuant to the stock
repurchase program previously approved by Parent's Board of Directors.
4. Company 401(k) Plan. Parent hereby confirms that, notwithstanding
anything to the contrary contained in Section 5.1(f) of the Original Agreement,
it has consented to the adoption by the Company of the Xxxxxx Flexible 401(k)
and Profit Sharing Plan effective as of January 1, 1999 and Amendment No. 1
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thereto effective as of May 1, 1999, each in the forms previously provided to
Parent by Company.
5. Confirmation. Except as amended by this Amendment No. 1, the
Original Agreement shall remain in full force and effect.
6. Instruments to be Read Together. This Amendment No. 1 shall form a
part of the Original Agreement for all purposes and the Original Agreement and
this Amendment No. 1 shall henceforth be read together.
7. Counterparts. This Amendment No. 1 may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, each of the parties has caused this Amendment No.
1 to the Agreement and Plan of Merger to be duly executed on its behalf as of
the day and year first written above.
WESTWOOD ONE, INC.
By: /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
Executive Vice President and
Chief Financial Officer
COPTER ACQUISITION CORP.
By: /s/ Xxxx Xxxxxxxxx
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Xxxx Xxxxxxxxx
Vice President
METRO NETWORKS, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Executive Vice President
