SECOND AMENDMENT OF AGREEMENT OF MERGER
SECOND AMENDMENT OF AGREEMENT OF MERGER, dated March 19, 1997, by
and among SFX Broadcasting, Inc. ("SFX"), NOC Acquisition Corp., CADCO
Acquisition Corp., QN Acquisition Corp., NOC, Inc. (formerly Nederlander of
Connecticut, Inc.) ("NOC"), Connecticut Amphitheater Development Corporation
("CADCO"), QN Corp. ("QN"), Connecticut Performing Arts, Inc. ("CPA"),
Connecticut Performing Arts Partners ("CPAP") and the Stockholders of NOC, CADCO
and QN listed on the signature pages annexed hereto (collectively, the
"Stockholders").
WITNESSETH:
WHEREAS, the parties hereto have entered into that certain Agreement
of Merger, dated February 12, 1997 by and among the parties signature hereto as
amended by Amendment of Merger Agreement, dated February 14, 1997 and by letter
dated March 4, 1997 (the "Merger Agreement"); and
WHEREAS SFX and the SFX Subs and the Stockholders hereby acknowledge
(i) that the pending litigation entitled Triangle Associates v. Connecticut
Performing Arts Partners and the Hartford Redevelopment Agency, filed in
Superior Court, the Judicial District of Hartford/New Britain at Hartford,
Docket Number CV-96-0562583S (the "Triangle Litigation") remains outstanding and
has not been settled by CPAP, (ii) certain
investigations have been commenced by the State Ethics Commission of the State
of Connecticut (the "Ethics Commission") with respect to compliance with
reporting requirements applicable to the distribution of complimentary tickets
(the "Ethics Investigation"), (iii) the Companies have entered into a
stipulation of settlement with the Ethics Commission relating to the Ethic
Investigation (the "Settlement Stipulation") and (iv) in consideration of the
granting by the Connecticut Development Authority ("CDA") of the consent
required pursuant to Section 2.22 of the Merger Agreement, the Stockholders have
agreed to certain compensation to be paid to the CDA as more particularly set
forth in the letter agreement annexed as Exhibit A hereto (the "CDA Consent
Agreement");
WHEREAS, the parties have agreed to amend the Merger Agreement with
respect to the Triangle Litigation, the Ethics Investigation and certain other
matters as more particularly described below on the terms and conditions set
forth herein.
NOW THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties hereto for themselves and their respective
successors and assigns, agree that the Merger Agreement shall be amended as
follows:
1. All capitalized terms used herein, unless otherwise defined,
shall have the meanings ascribed thereto in the Merger Agreement.
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2. The Stockholders hereby agree that the indemnification of the SFX
Indemnities set forth in Section 12.1 of the Merger Agreement shall be deemed to
include any Losses incurred by or asserted against the SFX Indemnitees in
respect of (i) the Triangle Litigation, (ii) any claims asserted against the
Companies relating to an asserted violation of the State Ethics Code which were
not settled or resolved by the Settlement Stipulation, (iii) the failure of the
Companies to pay or cause to be paid any personal property taxes assessed
against the assets of the Companies and attributable to the period prior to the
Effective Date, including, without limitation, any fines, penalties or
additional amounts due in respect of personal property taxes for the calendar
year 1995 which are presently subject to appeal by the Companies, and (iv) any
breach of the representation contained in Section 2.27 hereof. Notwithstanding
anything contained in the Merger Agreement to the contrary, the indemnification
set forth in subparagraphs (i), (ii), (iii) and (iv) above shall not be subject
to the Threshold Amount set forth in Section 12.1 of the Merger Agreement, the
indemnification set forth in subparagraph (i) and (ii) above shall not be
limited to claims made within one (1) year following the Effective Date and the
indemnification set forth in (ii) and (iv) above shall not be subject to the
Maximum Amount set forth in Section 12.1 of the Merger Agreement.
3. SFX and the SFX Subs hereby consent to the provisions of the CDA
Consent Agreement and agree that, on the
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Effective Date, SFX shall cause such number of SFX Shares as shall equal the
Consent Consideration (as defined in the CDA Consent Agreement) to be delivered
to the CDA in accordance with the terms and conditions of the CDA Consent
Agreement. SFX, the SFX Subs and the Stockholders each hereby agree to deliver
copies of any notices given or received by any such party in connection with the
exercise of the registration rights by the Stockholders pursuant to Section 6.7
of the Merger Agreement or the exercise of the "put" or "call" option pursuant
to Section 10 of the Merger Agreement. Copies of any such notices shall be
delivered to the CDA by (i) hand delivery, or (ii) prepaid certified mail
(return receipt requested) to the following address: Connecticut Development
Authority, 000 Xxxxx Xxxxxx, Xxxxx Xxxx, Xxxxxxxxxxx 00000, Attention: Chairman.
4. Notwithstanding anything to the contrary contained in the Merger
Agreement, (i) all apportionments under the Merger Agreement to be made as of
the Effective Date shall be made as of February 28, 1997, and (ii) Nederlander
of Connecticut, Inc. may amend its Articles of Incorporation prior to the
Effective Date in order to change its name to "NOC, Inc." or any variation
thereof without obtaining the prior consent of SFX or the SFX Subs.
5. The following representations and warranties shall be deemed
added to Section 2 of the Merger Agreement:
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2.26. Treasury Stock. As of the date hereof there are no treasury
shares of either CADCO or NOC. Except for the preferred stock of CPA held by QN,
there are no treasury shares of QN.
2.27. No Prior Bankruptcy. CPA has not filed any petition seeking
relief from creditors under the United States Bankruptcy Code or similar any
state statute. CPA is not and has never been affiliated with the American
Shakespeare Theater a/k/a Connecticut Center for the Performing Arts, Inc. (now
known as Connecticut Performing Arts, Inc.).
2.28 Lobbyist Registration. As of the date hereof, neither CPAP nor
CPA are registered lobbyists under Connecticut law and neither CPAP nor CPA have
engaged or paid for a lobbyist since January 1, 1997.
6. Effective as of the Effective Date, (i) the certificate of
incorporation of CADCO shall be as set forth in Exhibit B, (ii) the certificate
of incorporation of NOC shall be as set forth in Exhibit C, and (iii) the
certificate of incorporation of QN shall be as set forth in Exhibit D.
7. SFX and the Stockholders acknowledge that the Nations Bank Loan
has not been satisfied in full on or before the Effective Date. In connection
with the foregoing, (x) SFX and the Stockholders will, on the Effective Date,
apportion the
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outstanding balance of the Nations Bank Loan in accordance with Section 1.11 of
the Merger Agreement by reducing the number of SFX Shares to be delivered on the
Effective Date, (y) the Merger Consideration shall be reduced by $140,000 by
reducing the number of SFX Shares to be delivered on the Effective Date, and (z)
SFX shall, on the Effective Date, cause the Nations Bank Loan in the outstanding
amount of $586,520.57 as of March 17, 1997 (as more particularly described in
the payoff letter issued by Nations Bank, dated March 17, 1997, a copy of which
is annexed hereto as Exhibit E) to be paid in full and to provide evidence of
such payment to the Stockholders. SFX hereby indemnifies and agrees to hold
harmless each of the Stockholders from and any and all claims, actions,
liabilities, losses, damages and expenses, including, reasonable attorney's
fees, which may be asserted against or incurred by any Stockholder arising from
the failure the Companies and/or SFX to cause the Nations Bank Loan to be
satisfied in full as provided herein.
8. On the Effective Date, SFX shall: (x) cause the Companies to
deliver the substitute letter of credit referred to in Section 1.3(i) of the
Merger Agreement to the CDA in accordance with the terms and conditions of the
CDA Consent and the Loan Documents (as defined in the CDA Consent), and (y)
request the CDA to return the letter of credit delivered to the CDA by the
Stockholders to the Paying Agent.
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9. Anything contained in the Merger Agreement to the contrary
notwithstanding, any claim asserted by SFX or the SFX Subs in connection with
the Additional Unwind Warranties must be made on or before April 14, 1997.
10. SFX, the SFX Subs and the Stockholders hereby acknowledge and
agree that, for the purposes of computing the Merger Consideration to be
delivered on the Effective Date, the Closing Value shall be $33.65 and the
Adjusted Closing Value shall be $30.00.
11. Schedules 2.2 and 2.3 of the Merger Agreement shall be deemed
deleted and Schedules 2.2 and 2.3 annexed hereto as Exhibit F shall be
substituted therefor. The undated consent letter received from the City of
Hartford and delivered on the Effective Date was delivered to the Companies on
March 5, 1997.
12. This Agreement contains the entire understanding of the parties
with respect to the subject matter hereof and shall supersede any and all other
agreements between the parties with respect to the subject matter hereof. This
Agreement may not be changed or modified orally but only by written instrument
signed by the parties hereto. This Agreement may be executed in any number of
counterparts, each of which shall constitute one and the same instrument.
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13. This Agreement shall be binding on the parties hereto, their
respective successors and assigns.
14. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
15. Except as expressly modified by this Agreement, the Merger
Agreement is and shall remain in full force and effect.
[Signature pages follow this page]
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IN WITNESS WHEREOF, the parties have executed and delivered this
Second Amendment of Merger Agreement on the day and year first above written.
SFX BROADCASTING, INC. NOC, INC.
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxxxxxxx
-------------------------------- ------------------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxxxxxxxx
Title: Executive Vice President Title: President
NOC-ACQUISITION CORP. CONNECTICUT AMPHITHEATER
DEVELOPMENT CORPORATION
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxx Xxxxxx
-------------------------------- ------------------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxx Xxxxxx
Title: Executive Vice President Title: President
CADCO ACQUISITION CORP. QN CORP.
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxxxxxxx
-------------------------------- ------------------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxxxxxxxx
Title: Executive Vice President Title: President
QN-ACQUISITION CORP. CONNECTICUT PERFORMING ARTS,
INC.
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxxxxxxx
-------------------------------- ------------------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxxxxxxxx
Title: Executive Vice President Title: President
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CONNECTICUT PERFORMING ARTS PARTNERS
By: NOC, Inc.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: President
By: Connecticut Amphitheater
Development Corporation
By: /s/ Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
Title: President
STOCKHOLDERS OF NOC: STOCKHOLDERS OF CADCO:
/s/ Xxxxxx X. Xxxxxxxxxxx /s/ Xxxxx X. Xxxxxx
-------------------------------------- --------------------------------------
Xxxxxx X. Xxxxxxxxxxx Xxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxxxxxxx /s/ Xxxxxx Xxxxxx
-------------------------------------- --------------------------------------
Xxxxxx X. Xxxxxxxxxxx, Xx. Xxxxxx Xxxxxx
/s/ Xxxx Xxxxxxxxxxx STOCKHOLDERS OF QN CORP.:
--------------------------------------
Xxxx X. Xxxxxxxxxxx RER Corp.
/s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxxxx
-------------------------------------- ----------------------------------
Xxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxxxxxx
Title: President
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