EXHIBIT 10.21.1
AMENDED AND RESTATED EXCHANGE AGREEMENT
THIS AMENDED AND RESTATED EXCHANGE AGREEMENT (this "Agreement"), dated
as of April 30, 2002, is made and entered into by and among Hicks, Muse, Xxxx &
Xxxxx Equity Fund III, L.P., a Delaware limited partnership ("HMTF"), and HM3
Coinvestors, L.P., a Delaware limited partnership ("HM3" and, together with
HMTF, "Sellers"), and LIN TV Corp., a Delaware corporation ("Buyer").
RECITALS:
A. Pursuant to the Purchase Agreement (the "Purchase Agreement") dated
as of March 28, 2002 among PS Texas Investments LLC ("PS Texas"), HMTF and XX0,
XXXX and HM3, upon the satisfaction of the conditions contained therein, have
agreed to acquire from PS Texas (i) 250,000 shares (together with any and all
shares of Preferred Stock (as defined below) issued or issuable in respect of
such shares as in-kind dividends, the "Shares") of the 14% Redeemable Preferred
Stock, par value $0.01 per share (the "Preferred Stock"), of STC Broadcasting,
Inc., a Delaware corporation and subsidiary of Sunrise Television Corp., a
Delaware corporation ("Sunrise"), (ii) a Senior Subordinated Promissory Note,
dated December 30, 1999, in the original principal amount of $21,749,383,
payable by Sunrise to HMTF, as subsequently transferred to PS Texas, and (iii) a
Senior Subordinated Promissory Note, dated December 30, 1999, in the original
principal amount of $750,617, payable by Sunrise to HM3, as subsequently
transferred to PS Texas (collectively, the "Notes").
B. The Buyer and Sellers previously entered into that certain Exchange
Agreement dated as of February 19, 2002 (the "Original Agreement") and desire to
amend and restate the Original Agreement upon the terms and conditions set forth
herein.
C. The Buyer desires to purchase from Sellers, and Sellers desire to
sell to the Buyer, the Shares and Notes pursuant to the terms and conditions
hereof.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants contained herein, the parties hereto hereby agree to amend and restate
the Original Agreement in its entirety as follows:
1. Purchase and Sale of Shares and Notes. Subject to the terms and
conditions hereof, Sellers severally agree to sell, and the Buyer shall
purchase, the Shares and the Notes.
2. Purchase Price; Exchange.
(a) The purchase price per Share shall be $100.00, plus accumulated
and unpaid dividends to, but not including, the Closing Date (as
defined in Section 4)(such aggregate price being referred to herein as
the "Shares Purchase Price").
(b) The purchase price for the Notes shall be the principal balance
of the Notes then outstanding on the Closing Date, plus accrued and
unpaid interest to, but not including, the Closing Date (together with
the Shares Purchase Price, the "Purchase Price").
(c) At the Closing (as defined in Section 4), the Buyer shall issue
to HMTF and HM3, the number of shares (rounded to the nearest whole
share) of its Class B Common Stock, par value $0.01 per share, as is
determined by dividing the Purchase Price payable to each of HMTF and
HM3 by the Fair Market Value of a share of Class A Common Stock, par
value $0.01 per share, of the Buyer. For purposes hereof, "Fair Market
Value" shall mean (x) in the event that
LIN has consummated an initial public offering of its Class A Common
Stock (an "IPO"), the public offering price per share, less
underwriting discounts and commissions, of such a share in the IPO and
(y) in the event that LIN has not consummated an initial public
offering of its Class A Common Stock, unless otherwise determined by
mutual agreement of the Buyer and Sellers, the midpoint of the range of
the proposed public offering price per share of such a share in the
IPO, less the proposed underwriting discount and commission, as set
forth in the latest prospectus relating to the IPO.
(d) The Purchase Price shall be allocated in accordance with Exhibit
A.
3. Other Actions at the Closing. At the Closing: (a) Sellers shall
deliver to the Buyer certificates representing the Shares duly endorsed to the
Buyer or accompanied by stock powers duly executed by Sellers, in form and
substance reasonably satisfactory to the Buyer, and (b) Sellers shall deliver to
the Buyer the Notes duly endorsed to the Buyer.
4. Closing. Subject to the terms and conditions hereof, the
consummation of the transactions contemplated in this Agreement (the "Closing")
shall occur at the offices of Weil, Gotshal & Xxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, at 9:00 a.m., on the date (the "Closing Date") of the
consummation of the merger contemplated by the STC/LIN Merger Agreement (as
defined in Section 8(a)(iv)), unless otherwise agreed to by Buyer and Sellers.
Prior to the Closing Date, Sellers shall notify Buyer of the amount of the
Purchase Price and the portion of the Purchase Price payable to each Seller.
5. Representations and Warranties.
(a) Each Seller hereby severally, and not jointly, represents and
warrants to Buyer that upon the consummation of the transactions
contemplated by the Purchase Agreement:
(i) Such Seller has all necessary power and authority to enter
into this Agreement and to sell, assign, transfer and deliver to the
Buyer the Shares and the Note being transferred by it pursuant to
the terms and conditions of this Agreement;
(ii) This Agreement is a legal, valid and binding agreement of
such Seller enforceable against it in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency,
moratorium or other similar laws relating to creditors' rights
generally and except that the availability of equitable remedies,
including specific performance, is subject to the discretion of the
court before which any proceeding therefor may be brought;
(iii) Such Seller is the owner and holder of the Note being
transferred by it hereunder and such Seller has not previously
assigned or encumbered such claims to any third party;
(iv) Such Seller owns of record and beneficially all of the
Shares being transferred by it hereunder free and clear of all
liens, claims, encumbrances and security interests of any nature
whatsoever;
(v) Each Seller is an "accredited investor" as defined by Rule
501(a) of Regulation D under the Securities Act of 1933, as amended
(the "Securities Act");
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(vi) The shares of Class B Common Stock to be purchased by each
Seller hereunder, as applicable, will be acquired for such Seller's
own account and for investment purposes only, and not with a view
to, or for sale in connection with, any distribution of such shares
in violation of the Securities Act or any applicable state
securities laws;
(vii) Each Seller understands and acknowledges that (i) none of
the shares of Class B Common Stock to be issued hereunder has been
registered under the Securities Act or any applicable state
securities laws and, when issued, will be "restricted securities"
within the meaning of Rule 144 under the Securities Act; and (ii)
such shares cannot be sold, transferred or otherwise disposed of
unless such shares subsequently are registered under the Securities
Act and any applicable state securities laws, or exemptions from
registration thereunder are then available; and
(viii) Each Seller has been afforded an opportunity to ask
questions of, and receive answers from, the Chief Executive Officer
and other officers of the Buyer concerning the business, financial
condition and prospects (financial and otherwise) of the Buyer.
(b) The Buyer hereby represents and warrants to Sellers that:
(i) The Buyer has all necessary power and authority to enter
into this Agreement and to buy the Shares and the Notes from Sellers
pursuant to the terms and conditions of this Agreement; and
(ii) This Agreement is a legal, valid and binding agreement of
the Buyer enforceable against it in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency,
moratorium or other similar laws relating to creditors' rights
generally and except that the availability of equitable remedies,
including specific performance, is subject to the discretion of the
court before which any proceeding therefor may be brought.
6. Buyer's Conditions to Closing. The obligation of the Buyer to
purchase the Shares and the Notes under this Agreement is subject to the
following conditions: (a) no preliminary or permanent injunction or other decree
or ruling issued by a court of competent jurisdiction in the United States is in
effect that would prevent the sale or purchase of the Shares or the Notes, (b)
the representations and warranties of Sellers contained in Section 5(a) hereof
shall be true and correct as of the date hereof and true and correct at the time
of the Closing as if made on and as of such time, (c) Sellers shall have
performed their covenants contained in the Agreement in all material respects,
(d) the purchase of the Shares and the Notes shall have been consummated
pursuant to the Purchase Agreement, and (e) the merger contemplated by the
STC/LIN Merger Agreement shall have been consummated.
7. Sellers' Conditions to Closing. The obligation of Sellers to sell
the Shares under this Agreement is subject to the following conditions: (a) no
preliminary or permanent injunction or other decree or ruling issued by a court
of competent jurisdiction in the United States is in effect that would prevent
the sale or purchase of the Shares or the Notes, (b) the representations and
warranties of the Buyer contained in Section 5(b) hereof shall be true and
correct as of the date hereof and true and correct at the time of the Closing as
if made on and as of such time, (c) the Buyer shall have performed its covenants
contained in this Agreement in all material respects, (d) the purchase of the
Shares and the Notes shall have been consummated pursuant to the Purchase
Agreement, and (e) the merger contemplated by the STC/LIN Merger Agreement shall
have been consummated.
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8. Termination.
(a) This Agreement may be terminated prior to the Closing:
(i) by mutual consent of the Buyer and Sellers;
(ii) by either the Buyer, on the one hand, or Sellers, on the
other hand, in the event of a breach by the other party of any
representation, warranty, covenant or other agreement contained in
this Agreement which (A) would give rise to the failure of a
condition set forth in Section 6(b) or (c) or Section 7(a) or (b),
as applicable, and (B) cannot be or has not been cured within 30
days after the giving of written notice to the breaching party of
such breach (a "Material Breach") (provided that the terminating
party is not then in Material Breach of any representation,
warranty, covenant or other agreement contained in this Agreement);
(iii) automatically, without further action by either the Buyer
or Sellers, if the Purchase Agreement is terminated for any reason
whatsoever; or
(iv) automatically, without further action by either the Buyer
or Sellers, if the Agreement and Plan of Merger dated as of February
19, 2002, as it may be amended from time to time (the "STC/LIN
Merger Agreement"), by and among Sunrise and LIN is terminated for
any reason whatsoever.
(b) Termination of this Agreement pursuant to Section 8(a) shall
terminate all rights and obligations of the parties hereunder and neither party
shall have any liability to the other party hereunder; provided that this
Section 8 and Sections 9, 10, 11, 12, 13, 14, 15 and 16 shall remain in effect;
and provided further that termination of this Agreement shall not relieve any
party from liability for any breach of this Agreement by such party prior to
such termination.
9. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered personally or
sent by registered or certified mail, postage prepaid, with return receipt
requested, as follows:
If to the Buyer, to:
LIN TV Corp.
Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attention: President
Facsimile: (000) 000-0000
with copies to (which shall not constitute notice):
LIN Television Corporation
Four Richmond Square
Providence, Rhode Island 02906
Attention: General Counsel
Facsimile: (000) 000-0000
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- and -
Xxxxxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx Xx.
Facsimile: (000) 000-0000
If to Sellers:
Hicks, Muse, Xxxx & Xxxxx Incorporated
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
with a copy to (which shall not constitute notice):
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxx X. Xxxx
Facsimile: (000) 000-0000
10. Waiver and Amendment. Any provision of this Agreement may be waived
at any time by the party that is entitled to the benefits thereof, and this
Agreement may be amended or supplemented at any time by the written consent of
the parties hereto.
11. No Prior Agreements. This Agreement (a) contains the entire
agreement, and supersedes all other prior agreements and understandings, both
written and oral, between the parties hereto with respect to the subject matter
hereof, and (b) is not intended to confer upon any other person any rights or
remedies hereunder.
12. Successors and Assigns. This Agreement shall be binding solely
upon, be enforceable solely by and inure solely to the benefit of each party
hereto and their respective successors, assigns and transferees, and nothing in
this Agreement, express or implied, is intended to confer upon any other person
any rights or remedies of any nature whatsoever under or by reason of this
Agreement.
13. Expenses. Each of the parties shall pay its own expenses in
connection with the negotiation, execution and performance of the Agreement. No
party has incurred any broker's or finder's fee in connection with this
Agreement that the other party will be obligated to pay.
14. Counterparts. This Agreement and any amendments hereto may be
executed and delivered (including by facsimile transmission) in two or more
counterparts, each of which shall be considered to be an original, but all of
which together shall constitute the same instrument.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas, without regard to its conflict
of laws doctrine. The parties hereto consent to being subject to the
jurisdiction of any federal or state court located in the State of Texas, and
proper venue shall lie in Dallas, Texas.
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16. Severability. If any term, provision or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
17. Effect of Headings. The section headings herein are for convenience
only and shall not affect the meaning or interpretation of this Agreement.
18. Survival. All representations, warranties, covenants and other
agreements and assignments of the parties hereto shall survive the Closing.
19. Interpretation. All references in this Agreement to Articles,
Sections, subsections, and other subdivisions refer to the corresponding
Articles, Sections, subsections, and other subdivisions of this Agreement unless
expressly provided otherwise. Titles appearing at the beginning of any Articles,
Sections, subsections or other subdivision of this Agreement are for convenience
only, do not constitute any part of such Articles, Sections, subsections, or
other subdivisions, and shall be disregarded in construing the language
contained therein. The words "this Agreement," "herein," "hereby," "hereunder,"
and "hereof," and words of similar import, refer to this Agreement as a whole
and not to any particular subdivision unless expressly so limited. The word
"including" (in its various forms) means "including without limitation."
Pronouns in masculine, feminine, or neuter genders shall be construed to state
and include any other gender and words, terms, and titles (including terms
defined herein) in the singular form shall be construed to include the plural
and vice versa, unless the context otherwise expressly requires. Unless the
context otherwise requires, all defined terms contained herein shall include the
singular and plural and the conjunctive and disjunctive forms of such defined
terms. The headings contained in this Agreement are for reference purposes only
and shall not affect in any way the meaning or interpretation of this Agreement.
20. No Affiliate Liability. Each of the following is herein referred to
as "Seller Affiliate:" (a) any direct or indirect holder of any equity interests
or securities of either Seller (whether such holder is a limited or general
partner, member, stockholder or otherwise), (b) any Affiliate (as defined below)
of either Seller, or (c) any director, officer, employee, representative or
agent of (i) either Seller, (ii) any Affiliate of either Seller or (iii) any
such holder of equity interests or securities referred to in clause (a) above.
No Seller Affiliate shall have any liability or obligation of any nature
whatsoever in connection with or under this Agreement or the transactions
contemplated hereby, and the Buyer hereby waives and releases all claims related
to any such liability or obligation. "Affiliate" means, with respect to any
person, any other person controlling, controlled by or under common control with
such person. For purposes of this definition and this Agreement, the term
"control" (and correlative terms) means the power, whether by contract, equity
ownership or otherwise, to direct the policies or management of a person.
21. Further Assurances. From time to time following the Closing, the
parties hereto shall execute and deliver such other instruments of assignment,
transfer and delivery and shall take such other actions as the other reasonably
may request in order to consummate, complete and carry out the transactions
contemplated by this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement to take
effect as of the date set forth above.
HICKS, MUSE, XXXX & XXXXX EQUITY FUND III, L.P.
By: HM3/GP Partners, L.P., its general partner
By: Xxxxx, Muse GP Partners III, its general
partner
By: Xxxxx, Muse Fund III Incorporated, its
general partner
By:
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Name:
------------------------------------------
Title:
-----------------------------------------
HM3 COINVESTORS, L.P.
By: Xxxxx, Muse GP Partners III, L.P., its
general partner
By: Xxxxx, Muse Fund III Incorporated, its
general partner
By:
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Name:
------------------------------------------
Title:
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LIN TV CORP.
By:
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Name:
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Title:
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EXHIBIT A
TO
AMENDED AND RESTATED EXCHANGE AGREEMENT
ALLOCATION OF PURCHASE PRICE
Allocation of Sellers' Amount Realized
For federal income tax purposes, the Sellers' amount realized on the sale of the
Shares and Notes pursuant to this Agreement shall be allocated in the following
order of priority:
1) first to the Notes, in an amount equal to the combined principal
balance and accrued but unpaid interest on the Notes to but not
including the Closing Date;
2) second to the Shares, in an amount equal to the accreted balance of the
Shares to but not including the Closing Date; and
3) third to the Notes.
