FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This First Amendment to Agreement and Plan of Merger (this
"Amendment") is entered into as of January 7, 1997 by and among (i) Media
General, Inc., a Virginia corporation ("Parent"); (ii) MG Acquisitions, Inc., a
Delaware corporation and wholly owned subsidiary of Parent ("Sub"); and (iii)
Park Acquisitions, Inc., a Delaware corporation (the "Company").
W I T N E S E T H :
WHEREAS, Parent, Sub and Company are parties to that certain
Agreement and Plan of Merger dated as of July 19, 1996 (the "Merger Agreement");
WHEREAS, the Closing Date (as defined under the Merger
Agreement) will occur after January 1, 1997; and
WHEREAS, notwithstanding the actual Closing Date, the parties
desire to provide that, for purposes of determining the Total Consideration and
all adjustments thereto, the Closing will be effective as of December 31, 1996
and to make certain other amendments to the Merger Agreement;
NOW THEREFORE, in consideration of the premises herein
contained, and for other good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Capitalized terms used herein and not otherwise defined
herein shall have the meanings attributed to such terms in the Merger
Agreement.
2. Amendments of the Merger Agreement. As of the Amendment Date (as defined in
Section 3), the Merger Agreement shall be amended as follows:
(a) Section 3.1(j)(i) shall be amended to change "60 days" to "90
days".
(b) Section 3.5 shall be added, to read in its entirety as follows:
3.5 Effective Closing Date. (a) Notwithstanding anything
else in this Agreement, if the Closing shall occur on or before
January 7, 1997 (the "Cutoff Date"), then for purposes of
determining the Total Consideration and all adjustments thereto
in accordance with Section 3.1 hereof (but for no other purposes)
the Closing Date shall be deemed to occur as of December 31, 1996
(the "Effective Closing Date"), and the Estimated Closing
Statement and the Final Closing Statement shall each be prepared
as of 11:59 p.m. on the Effective Closing Date; provided that:
(1) notwithstanding the use of the Effective Closing Date for
purposes of determining the Total Consideration and adjustments thereto as
provided for herein (i) any costs or expenses of the Company or the Stockholders
for which the Company is liable incurred in connection with the transactions
contemplated by this Merger Agreement that have not been paid by the actual
Closing Date shall be taken into account for purposes of computing the Total
Consideration and all adjustments thereto irrespective of the Effective Closing
Date or the actual Closing Date; and (ii) those certain proposed payments to
employees described on Exhibit A hereto shall be taken into account for purposes
of computing the Total Consideration and all adjustments thereto irrespective of
the Effective Closing Date or the actual Closing Date;
(2) for purposes of computing the Working Capital and/or for
purposes of computing Total Consideration, the parties agree as follows,
notwithstanding any other provision of the Merger Agreement:
(i) no amount resulting from any potential tax
deduction in respect of the proposed payments to employees
described on Exhibit A shall be taken into account;
(ii) the sum of $2,638,000 shall be used in respect
of computing capital expenditures under Section 6.3 of the
Merger Agreement to be added to Total Consideration;
(iii) no adjustment to Working Capital will be made
in respect of any potential tax benefit of interest paid in
1996 on certain paid-in-kind notes of the Company or its
subsidiaries;
(iv) no adjustment will be made in respect of two
adjustments recorded by the Company (or its subsidiaries) on
their books and records in respect of a writedown of broadcast
film rights ($882,000) or liabilities to Xxxx Xxxxxxxx
($147,000);
(v) cash resulting from the sale of certain real
estate described on Exhibit B in the amount of $316,175 shall
not be taken into account;
(vi) certain automobiles described on Exhibit C have
been sold to the Shareholders for the net book value thereof,
pursuant to the adjustment made on the Estimated Closing
Statement and no further adjustment (other than as shown on
the Estimated Closing Statement) will be made in respect
thereof;
(vii) no amount resulting from the assumption of a
liability ($168,000) in connection with a commercial insert
machine at WHOA-TV shall be taken into account; and
(viii) for purposes of the calculation of the Total
Consideration, because the closing of the WHOA Acquisition
took place on January 3, 1997, after the December 31
calculation of Working Capital provided for herein, Total
Consideration has been decreased by the amount of $1,200,000
paid to the Sellers (as defined in the WHOA Agreement) on
January 3, 1997.
(ix) a tax benefit of $55,000, in respect of the
items listed on Exhibit D hereto shall be taken into account
in computing Working Capital.
Assuming the accuracy of the financial information provided by the Company, both
parties agree not to seek to renegotiate items (2)(i)-(ix) above in connection
with the preparation of the Final Closing Statement.
In respect of the $139,000 item shown on the Estimated Closing Statement
relating to Xxxx Xxxxxxxx, the parties agree that if Parent, in settlement of
any claims with Xxxx Xxxxxxxx, pays (or permits its subsidiaries to pay) in
excess of $139,000, the Shareholders reserve the right to contest any excess
payment as not a current liability of the Company.
If the Closing shall not occur on or before the Cutoff Date, the Closing Date
shall be the date of the Closing, determined in accordance with Section 1.2
hereof.
(b) From and after the Effective Closing Date through
and including the Cutoff Date, except with respect to
authorization of the proposed payments to employees described
on Exhibit A hereto, the Company shall take no actions outside
the ordinary course of business, nor any actions in the
ordinary course of business not consistent with its past
practices, in either case that would cause the calculation of
the adjustments specified in Section 3.1 hereof as of the
Effective Closing Date to be different than if the calculation
of such adjustments had been made on the Closing Date. Without
limiting the generality of the foregoing sentence, from and
after the Effective Closing Date through and including the
Cutoff Date, the Company shall continue to pay all bills that
are due and payable in a timely manner.
(c) Section 8.3 shall be amended by deleting the word "and" after the
word "below" in the penultimate line thereof, and replacing it with ";", and by
adding the following provision at the end of such Section:
; and (vi) the Company shall have performed in all material
respects its agreements contained in Section 3.5 hereof and
Parent and Sub shall have received a certificate of the Chief
Executive Officer or a Vice President of the Company to that
effect.
3. Amendment Date. This Amendment shall become effective as of the date first
above written (the "Amendment Date") upon execution by each of Parent, Sub
and Company of this Amendment.
4. Ratification. The Merger Agreement, as amended hereby, is hereby ratified,
approved and confirmed in all respects.
5. Reference to Merger Agreement. From and after the Amendment Date, each
reference in the Merger Agreement to "this Agreement", "hereof", or
"hereunder" or words of like import, and all references to the Merger
Agreement in any and all agreements, instruments, documents, notes,
certificates and other writings of every kind and nature shall be deemed to
mean the Merger Agreement, as amended by this Amendment.
6. Governing Law. This Amendment shall be governed in all respects by the laws
of the State of Delaware (without giving effect to the provisions thereof
relating to conflicts of law).
7. Execution in Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
taken together shall constitute a single agreement.
IN WITNESS WHEREOF, Parent, Sub and the Company have caused
this First Amendment to Agreement and Plan of Merger to be signed by their
respective officers thereunder duly authorized all as of the date first written
above.
MEDIA GENERAL, INC.
By: ______________________________
Name: J. Xxxxxxx Xxxxx III
Title: Chairman and President
MG ACQUISITIONS, INC.
By: _______________________________
Name: J. Xxxxxxx Xxxxx III
Title: President
PARK ACQUISITIONS, INC.
By: _________________________________
Name: Xxxx X. Xxxxx
Title: Chairman of the Board
By: _________________________________
Name: Xxxxxx X. Xxxxxx, Xx.
Title: President
Exhibit List
Exhibit A Employee List
Exhibit B Real Estate Sales
Exhibit C Automobile List
Exhibit D Miscellaneous List
