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EXHIBIT 2.2
FIRST AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
THIS FIRST AMENDMENT (the "First Amendment") to the Agreement and Plan
of Merger ("Merger Agreement"), dated as of July 23, 1996, by and among OCC
Acquisition Company, Inc. ("Mergeco"), Xxxxxx Communications Corporation
("Xxxxxx"), and OCC Holding Corporation ("OCC Holding") is entered into as of
February 20, 1997, by and among Mergeco, Xxxxxx, OCC Holding, and Commodore
Media, Inc. ("CMI").
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 Xxxxxx;
WHEREAS, the parties to the Merger Agreement desire to amend the
Merger Agreement as provided herein pursuant to Section 10.3 of the Merger
Agreement;
WHEREAS, among other things, the parties to the Merger Agreement
desire, and CMI desires, to replace OCC Holding with CMI as a party to the
Merger Agreement for all purposes; 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. Section 1.4(a) of the Merger Agreement is hereby amended and
restated to read in its entirety as follows:
"(a) At the Effective Time, the Certificate of
Incorporation of Xxxxxx, as in effect immediately prior to the
Effective Time, shall be the Certificate of Incorporation of the
Surviving Corporation."
2. Section 7.2(e) of the Merger Agreement is hereby amended and
restated to read in its entirety as follows:
"(e) Subscription. Prior to the Effective Time,
Xxxxx X. Xxxxxx shall have entered into a Subscription Agreement in
substantially the form of Exhibit
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C attached hereto and thereby subscribed for 1,636,361 shares of
common stock, par value $0.01 per share, of Capstar Broadcasting
Partners, Inc., a Delaware corporation, in exchange for 117,073 shares
of Common Stock held of record by Xx. Xxxxxx. The Closing
contemplated by the Subscription Agreement shall have occurred
immediately prior to the Effective Time."
3. As of and after the date hereof, OCC Holding shall not be a
party to the Merger Agreement. All references in the Merger Agreement, to OCC
Holding, as Parent or otherwise, shall hereby be deemed, as of and after the
date hereof, to refer to CMI for all purposes.
4. CMI, in its capacity as the sole stockholder of Mergeco, by
its execution and delivery of this First Amendment, approves and adopts this
First Amendment, the Merger Agreement and the transactions contemplated hereby
and thereby.
5. Exhibit A (Restated Certificate of Incorporation of Xxxxxx
Communications Corporation) of the Merger Agreement is hereby deleted in its
entirety.
6. Exhibit B (Employment Agreement) of the Merger Agreement is
hereby amended and restated to read in its entirety as Exhibit 1 attached
hereto.
7. Exhibit C (Subscription Agreement for OCC Holding Corporation)
of the Merger Agreement is hereby amended and restated to read in its entirety
as Exhibit 2 attached hereto.
8. Except as herein specifically amended or supplemented, the
Merger Agreement shall continue in full force and effect in accordance with its
terms.
9. This First Amendment may be executed and delivered (including
by facsimile transmission) in one or more counterparts, all of which shall be
considered one and the same agreement and shall become effective when one or
more counterparts have been signed by each of the parties and delivered to the
other parties, it being understood that all parties need not sign the same
counterpart.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first written above.
MERGECO:
OCC ACQUISITION COMPANY, INC.
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By: Xxxx X. Xxxxxx
Its: President
XXXXXX:
XXXXXX COMMUNICATIONS CORPORATION
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By: Xxxxx X. Xxxxxx
Its: President
OCC HOLDING:
OCC HOLDING CORPORATION
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By: Xxxx X. Xxxxxx
Its: President
CMI:
COMMODORE MEDIA, INC.
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By: R. Xxxxxx Xxxxx
Its: Chief Executive Officer
