EXHIBIT 2.2
FIRST AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this "Amendment")
is made and entered into as of March 29, 2002, between LIN TV Corp., a Delaware
corporation ("LIN"), and Sunrise Television Corp., a Delaware corporation
("Sunrise").
WHEREAS, LIN and Sunrise entered into an Agreement and Plan of Merger
dated as of February 19, 2002 (the "Merger Agreement"), pursuant to which, among
other things, at the Effective Time and upon the terms and subject to the
conditions of the Merger Agreement, Sunrise will be merged with and into LIN
with LIN continuing as the surviving corporation; and
WHEREAS, LIN and Sunrise desire to amend the Merger Agreement as
hereinafter provided.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Amendments.
(a) The Glossary of Defined Terms to the Merger Agreement is
hereby amended by adding the following terms in alphabetical order with
the other defined terms set forth in such Glossary of Defined Terms:
"Determination Date .....................Section 2.1(d)
North Dakota Sale Agreement .............Section 2.1(d)
Reserved LIN Shares .....................Section 2.1(g)"
(b) Sections 2.1 (a)-(d) of the Merger Agreement are hereby
amended by deleting Sections 2.1 (a)-(d) in their entirety and by
substituting in lieu thereof the following provisions:
"2.1 Effect on Outstanding Sunrise Capital Stock.
(a) Each share of Class A common stock, par
value $0.01 per share, of Sunrise ("Sunrise Class A
Common Stock"), issued and outstanding immediately
prior to the Effective Time (other than shares of
Sunrise Class A Common Stock held as treasury shares by
Sunrise) shall by virtue of the Merger and without any
action on the part of LIN, Sunrise, or the holder
thereof, cease to exist and be converted into the right
to receive 20.2784 validly issued, fully paid, and
non-assessable shares of Class A common stock, par
value $0.01 per share, of LIN having the rights,
powers, privileges, qualifications, limitations, and
restrictions set forth in the Second Amended and
Restated Charter ("New LIN Class A Common Stock");
provided, however, that if the transactions
contemplated by the North Dakota Sale Agreement have
not consummated as of the Effective Time, the Exchange
Ratio shall be deemed to be 10.5634.
(b) Each share of Class B common stock, par
value $0.01 per share, of Sunrise ("Sunrise Class B
Common Stock" and, together with the Sunrise Class A
Common Stock, the "Sunrise Common Stock"), issued and
outstanding immediately prior to the Effective Time
(other than shares of Sunrise Class B
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Common Stock held by Hicks, Muse, Xxxx & Xxxxx Equity
Fund III, L.P., HM3 Coinvestors, L.P., or their
respective affiliates (collectively, "HMTF") or as
treasury shares by Sunrise) shall by virtue of the
Merger and without any action on the part of LIN,
Sunrise, or the holder thereof, cease to exist and be
converted into the right to receive 20.2784 validly
issued, fully paid, and non-assessable shares of New
LIN Class A Common Stock; provided, however, that if
the transactions contemplated by the North Dakota Sale
Agreement have not consummated as of the Effective
Time, the Exchange Ratio shall be deemed to be
10.5634.
(c) Each share of Class B Common Stock held by
HMTF and issued and outstanding immediately prior to
the Effective Time shall by virtue of the Merger and
without any action on the part of LIN, Sunrise, or the
holder thereof, cease to exist and be converted into
the right to receive 20.2784 validly issued, fully
paid, and non-assessable shares of Class B common
stock, par value $0.01 per share, of LIN having the
rights, powers, privileges, qualifications,
limitations, and restrictions set forth in the Second
Amended and Restated Charter ("New LIN Class B Common
Stock" and, together with the New LIN Class A Common
Stock, the "New LIN Common Stock") provided, however,
that if the transactions contemplated by the North
Dakota Sale Agreement have not consummated as of the
Effective Time, the Exchange Ratio shall be deemed to
be 10.5634.
(d) As used herein, the term (i) "Determination
Date" means May 31, 2002, provided that in the event
that the Extension Fee (as defined in the North Dakota
Sale Agreement) is paid in accordance with Section
13.1.2 of the North Dakota Sale Agreement, then June
30, 2002; (ii) "Exchange Ratio" means the ratio of the
New LIN Common Stock to be issued in exchange for each
whole share of Sunrise Common Stock, (iii) "Merger
Consideration" means the shares of New LIN Common Stock
to be issued to the holders of Sunrise Common Stock in
accordance with this Section 2.1 and any cash in lieu
of fractional shares of New LIN Common Stock to be paid
in accordance with Section 2.6, and (iv) "North Dakota
Sale Agreement" means the Amended and Restated Asset
Purchase Agreement dated as of March 28, 2002, among
STC and STC License Company, as sellers, and Xxxxx
Television of North Dakota, Inc. and Xxxxx Television
of North Dakota License Holdings, Inc., as purchasers."
(c) The following new Section 2.1(g) of the Merger Agreement
is hereby added to the Merger Agreement:
"(g) In the event the Effective Time occurs prior to
the Determination Date and the transactions contemplated by
the North Dakota Sale Agreement have not be consummated prior
to the Effective Time, LIN shall reserve for issuance pursuant
to the terms and subject to the conditions of this Section
2.1(g) that number of shares of New LIN Common Stock equal to
the difference between the aggregate number of shares that
would be issuable to all former holders of Sunrise Common
Stock under the 20.2784 Exchange Ratio and the aggregate
number of shares issuable to all former holders of Sunrise
Common Stock under the 10.5634 Exchange Ratio (the "LIN
Reserved Shares"). In the event that the transactions
contemplated by the North Dakota Sale Agreement shall be
consummated after the Effective Time but on or prior to the
Determination Date, LIN shall issue to each holder of New LIN
Common Stock who was a holder of Sunrise
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Common Stock immediately prior to the Effective Time that
number of shares of New LIN Common Stock equal to the
difference between (i) the number of shares of New LIN Common
Stock issued to such holder under the 10.5634 Exchange Ratio
and (ii) the number of shares of New LIN Common Stock that
would have been issued to such holder in the event that the
Exchange Ratio had been 20.2784. In the event that the
transactions contemplated by the North Dakota Sale Agreement
shall not have been consummated as of the Determination Date,
LIN shall have no obligations under this Section 2.1(g),
including in respect of the LIN Reserved Shares."
(d) Section 6.1(b)(vii) of the Merger Agreement is hereby
amended by deleting Section 6.l(b)(vii) in its entirety and by
substituting in lieu thereof the following provision:
"(vii) in respect of the North Dakota Sale Agreement
decrease the amount of the total consideration, including the
amount thereof that is cash consideration, provided therein or
extend the timing of payment thereof; or"
(e) The last sentence of Section 5.6 of the Merger Agreement
is hereby amended by deleting such sentence in its entirety and by
substituting in lieu thereof the following sentence:
"Notwithstanding any other provision of this
Agreement to the contrary, in the event that (i) LIN shall
update the LIN Disclosure Letter in respect of the
consummation of the transactions contemplated by the Asset
Purchase, Agreement, dated as of January 25, 2002, between LIN
Television Corporation and Super Towers, Inc. relating to
LIN's sale of WNAC-IIIV, such updates shall not be deemed to
constitute a breach of any representation or warranty of LIN
contained in Article IV, or (ii) Sunrise shall update the
Sunrise Disclosure Letter in respect of the consummation of
the transactions contemplated by the North Dakota Sale
Agreement, such updates shall not be deemed to constitute a
breach of any representation or warranty of Sunrise contained
in Article III."
(f) Section 7.1(e) of the Merger Agreement is hereby amended
by deleting Section 7.1(e) in its entirety and by substituting in lieu
thereof the following provision:
"(e) Advisory Committee Approvals. Any required
approval of the Advisory Committee of each of Hicks, Muse,
Xxxx & Xxxxx Equity Fund III, L.P. and Hicks, Muse, Xxxx &
Xxxxx Equity Fund IV, L.P. in respect of the transactions
contemplated hereby shall have been obtained."
(g) Section 7.1(f) of the Merger Agreement is hereby amended
by deleting Section 7.1(f) in its entirety and by substituting in lieu
thereof the following provision:
"(f) Payoff of Credit Agreement. In the event the
transactions contemplated by the North Dakota Sale Agreement
shall have been consummated prior to the Closing, all
indebtedness under the Amended and Restated Credit Agreement
dated as of June 2, 1998, among Sunrise, STC, JPMorgan Chase
Bank, as administrative agent. Bank of America, N.A., as
documentation agent, and Citicorp USA, Inc., as syndication
agent, as amended (the "Credit Agreement"), shall be
discharged in full."
(h) The last sentence of Item 2 of Section 3.3 -- (No
Conflicts) of the Sunrise Disclosure Letter is hereby deleted in its
entirety.
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(i) Items 2 and 3 of Section 3.17 (Employee Arrangements and
Benefit Plans) of the Sunrise Disclosure Letter are hereby deleted in
their entirety and by substituting in lieu thereof the following Items:
"2) Non-Qualified Stock Option Letter Agreement of
Sunrise Television Corp. and Xxxxxxx Xxxxxxxxxx, effective
February 8, 2002, as amended by the First Amendment to
Non-Qualified Stock Option Letter Agreement dated as of March
28, 2002.
3) Non-Qualified Stock Option Letter Agreement of
Sunrise Television Corp. and Xxxxxxx X. Xxxxxxxx, Xx.,
effective February 8, 2002, as amended by the First Amendment
to Non-Qualified Stock Option Letter Agreement dated as of
March 28, 2002."
2. Certain Definitions. Capitalized terms used without definition in
this Amendment have the meanings set forth in the Merger Agreement (as amended
hereby).
3. Counterparts. This Amendment may be executed in any number of
counterparts, each of which will be deemed to be an original, but all of which
will constitute one and the same instrument, and the signature of any party to
any counterpart shall be deemed a signature to, and maybe appended to, any other
counterpart.
4. Effect: Governing Law. Except as specifically amended by this
Amendment, the Merger Agreement shall remain in full force and effect. This
Amendment shall be binding upon and shall inure to the benefit of the parties
hereto and their successors and permitted assigns. This Amendment shall be
governed by and construed in accordance with the laws of the State of
Delaware,
regardless of the laws that might otherwise govern under applicable principles
of conflicts of laws thereof.
5. Consent to Amend Asset Purchase Agreement. LIN hereby, pursuant to
Section 6.1(b)(vii) of the Merger Agreement (prior to its amendment hereby)
gives its consent to the amendment of the Asset Purchase Agreement dated as of
February 8, 2002, among STC and STC License Company, as sellers, and Xxxxx
Television of North Dakota, Inc. and Xxxxx Television of North Dakota License
Holdings, Inc., as purchasers, as reflected by the Amended and Restated Asset
Purchase Agreement dated as of March 28, 2002.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day and year first above written.
LIN TV CORP.
By: /s/ XXXX X. XXXXXXX
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Name: Xxxx X. Xxxxxxx
Title: Chairman of the Board, President
and Chief Executive Officer
SUNRISE TELEVISION CORP.
By: /s/ XXXXX X. XXXX
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Name: Xxxxx X. Xxxx
Title: Executive Vice President and
Chief Financial Officer
