1
EXHIBIT 10.75
Amendment No. 1, dated as of September 3, 1996,
to the Agreement and Plan of Merger by and among
CMI Acquisition Company, Inc., Commodore
Media, Inc. and the stockholders and other
signatories thereto dated as of June 21, 1996.
2
FIRST AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT (the "First Amendment") to the Agreement and Plan
of Merger (the "Merger Agreement") dated as of June 21, 1996, by and among CMI
Acquisition Company, Inc. ("Mergco"), Commodore Media, Inc. ("Commodore"), and
the stockholders and other signatories named therein, is entered into as of
September 3, 1996, by and among Mergeco, Commodore, Xxxxx X. Xxxxxxxx, as the
indemnitor representative (the "Indemnitor Representative"), and Hicks, Muse,
Xxxx & Xxxxx Equity Fund III, L.P. ("Fund III").
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; 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. Schedule 3.1(f) to the Merger Agreement is hereby amended by
deleting the radio broadcast station WHRD (AM), Huntington, West Virginia, and
the respective description of the pending FCC application therefor, from the
section entitled "Pending Applications as of 6/1/96."
2. The defined term "Huntington Acquisition," as such term is
defined in Section 4.1(i) of the Merger Agreement, shall not include the radio
broadcast station WHRD (AM), Huntington, West Virginia.
3. Section 6.2 of the Merger Agreement is hereby amended and
restated to read as follows:
6.2 Commitment Letter. Mergeco shall deliver to Commodore
(i) on or before September 9, 1996, a binding commitment letter or
binding commitment letters from Fund III and/or one or more other
financing sources to provide financing in an amount of $70 million and
(ii) on or before September 17, 1996, a binding commitment letter or
binding commitment letters from Fund III and/or one or more other
financing sources to provide additional financing in an amount of $40
million,
3
in each case to provide Mergeco a portion of the funds necessary to
enable Mergeco to consummate the transactions contemplated hereby.
Fund III shall at such time(s) have subscription commitments for
unallocated capital equal to at least its committed amount and
there shall be no restrictions on Fund III's ability to call such
capital.
4. 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]
2
4
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.
/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
FUND III:
HICKS, MUSE, XXXX & XXXXX EQUITY FUND III, L.P.
By: HMG/GP Partners, L.P.,
its General Partner
By: Xxxxx, Muse GP Partners III, L.P.,
its General Partner
By: Xxxxx, Muse Fund III Incorporated,
its General Partner
/s/ Xxxxxxxx X. Xxxxxx, Xx.
---------------------------------
By: Xxxxxxxx X. Xxxxxx, Xx.
Its: Executive Vice President
3
