Exhibit 2.2
FORM OF AGREEMENT OF MERGER
MERGING
NEXSTAR BROADCASTING GROUP, L.L.C.
AND
NEXSTAR FINANCE HOLDINGS II, L.L.C.
(each a Delaware limited liability company)
AND
NEXSTAR BROADCASTING OF NORTHEASTERN PENNSYLVANIA, INC.
NEXSTAR BROADCASTING OF JOPLIN, INC.
NEXSTAR BROADCASTING OF ERIE, INC.
KBTV BROADCASTING INC.
KFDX BROADCASTING INC.
NEXSTAR BROADCASTING OF ROCHESTER, INC.
KTAB BROADCASTING INC.
ERC HOLDINGS, INC.
NEXSTAR MIDWEST HOLDINGS, INC.
NEXSTAR BROADCASTING OF CHAMPAIGN, INC.
NEXSTAR BROADCASTING OF PEORIA, INC.
KMID BROADCASTING INC.
KTAL BROADCASTING INC.
NEXSTAR ALABAMA HOLDINGS, INC.
AND
NEXSTAR ARKANSAS HOLDINGS, INC.
(each a Delaware corporation)
INTO
NEXSTAR BROADCASTING GROUP, INC.
(a Delaware corporation)
AGREEMENT OF MERGER (this "Agreement") is adopted on November , 2003
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pursuant to Section 18-209 of the Delaware Limited Liability Company Act (the
"Act") by each of NEXSTAR BROADCASTING GROUP, L.L.C. ("Group LLC") and NEXSTAR
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FINANCE HOLDINGS II, L.L.C. ("Holdings II" and, together with Group LLC, the
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"Merging LLCs"), each a limited liability company of the State of Delaware, and
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by resolution of its manager adopted on said date, and pursuant to Section 264
of the General Corporation Law of the State of Delaware (the "GCL") by each of
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NEXSTAR BROADCASTING OF NORTHEASTERN PENNSYLVANIA, INC., NEXSTAR BROADCASTING OF
JOPLIN, INC., NEXSTAR BROADCASTING OF ERIE, INC., KBTV BROADCASTING INC., KFDX
BROADCASTING INC., NEXSTAR BROADCASTING OF ROCHESTER, INC., KTAB BROADCASTING
INC., ERC HOLDINGS, INC., NEXSTAR MIDWEST HOLDINGS, INC., NEXSTAR BROADCASTING
OF CHAMPAIGN, INC., NEXSTAR BROADCASTING OF PEORIA, INC., KMID BROADCASTING
INC., KTAL BROADCASTING INC., NEXSTAR ALABAMA HOLDINGS, INC. and NEXSTAR
ARKANSAS HOLDINGS, INC., each a business corporation duly incorporated in the
State of Delaware (collectively, the "Merging Corporations"), and by resolution
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of its board of directors adopted on said date, and by NEXSTAR BROADCASTING
GROUP, INC., a corporation duly incorporated in the State of
Delaware ("Nexstar" and, together with the Merging LLCs and the Merging
Corporations, the "Parties"), and by resolution of its board of directors
adopted on said date. Each capitalized term that is used and not otherwise
defined in this Agreement has the meaning set forth in Section 6 hereof.
WHEREAS, each of the Merging LLCs is a limited liability company of the
State of Delaware with its registered office therein located at 0000 Xxxxxxxxxxx
Xxxx, Xxxxx 000, Xxxx xx Xxxxxxxxxx, Xxxxxx of New Castle;
WHEREAS, each of the Merging Corporations and Nexstar is a business
corporation of the State of Delaware with its registered office therein located
at 0000 Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxx xx Xxxxxxxxxx, Xxxxxx of New Castle;
WHEREAS, the respective manager or board of directors (as applicable) of
each of the Merging LLCs, the Merging Corporations and Nexstar has approved and
declared advisable and fair to and in the best interests of its members or
shareholders (as applicable) a merger of each of the Merging LLCs and each of
the Merging Corporations with and into Nexstar (the "Merger") upon the terms and
subject to the conditions set forth in this Agreement, with Nexstar surviving
the Merger;
WHEREAS, the Merger is subject to approval by the requisite members or
stockholders (as applicable) of each of the Merging LLCs, the Merging
Corporations and Nexstar; and
WHEREAS, the Parties intend that on the day following the Merger, the
Surviving Corporation will issue shares of its Common Stock in an initial public
offering.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained and intending to be legally bound hereby, the
Parties hereby agree as follows:
1. The Merger. At the Effective Time (as such term is defined in Section 2
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hereof) and upon the terms and subject to the conditions set forth in this
Agreement and the applicable provisions of the Act and the GCL, each of the
Merging LLCs and the Merging Corporations will be merged with and into
Nexstar and the separate legal existence of each of the Merging LLCs and
the Merging Corporations will thereupon cease. Nexstar will be the
surviving corporation after the Merger (in that capacity, the "Surviving
Corporation").
2. Effective Time. Pursuant to the provisions of this Agreement, the Parties
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shall cause the Merger to be consummated by filing certificates of merger
with the Secretary of the State of Delaware in accordance with the relevant
provisions of the Act and the GCL. The Merger will become effective at the
time the certificates of merger are duly filed with the Secretary of the
State of Delaware (the "Effective Time").
3. Effects of the Merger.
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(a) Generally. The Merger will have the effects specified in the Act and
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the GCL and, without limitation, all property, rights, privileges,
powers and franchises of each of the Merging LLCs and the Merging
Corporations will vest in the Surviving Corporation, and all debts,
liabilities and duties of each of the Merging LLCs and the Merging
Corporations will become the debts, liabilities and duties of the
Surviving Corporation.
(b) Governing Documents. From and after the Effective Time, the
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certificate of incorporation and bylaws of Nexstar, as in effect
immediately prior to the Effective Time, will be the certificate of
incorporation and bylaws, respectively, of the Surviving Corporation.
(c) Directors and Officers. From and after the Effective Time, the
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officers and directors of the Surviving Corporation will be the
persons who are the officers and directors, respectively, of Nexstar
immediately prior to the Effective Time, unless and until any such
person thereafter ceases to hold such position.
(d) Characterization. The Parties intend that the Merger be treated as a
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reorganization within the meaning of Section 368(a) of the Internal
Revenue Code of 1986, as amended. No person shall take a position
inconsistent with the treatment of the Merger as such a reorganization
unless required to do so pursuant to a final determination.
4. Effect of the Merger on Membership Interests and Capital Stock. As a result
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of the Merger and without any other action by any person, the following
will occur:
(a) All of the Group LLC Interests that were issued and outstanding
immediately prior to the Effective Time will be canceled and
extinguished and automatically converted into shares of Common Stock
of the Surviving Corporation. The number of shares of Common Stock
that each holder of Group LLC Interests will receive as a result of
the Merger will equal the number of shares of Common Stock that such
holder would receive in a liquidating distribution of Group LLC
pursuant to Article IV of the LLC Agreement if such distribution were
to occur on November 26, 2003. Pursuant thereto, each Group LLC
Interest will be converted into the number of shares of Common Stock
set forth below.
(i) Each Class A Interest of Group LLC issued and outstanding
immediately prior to the Effective Time will be canceled and
extinguished and automatically converted into [ ] shares of
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Class B Common Stock of the Surviving Corporation.
(ii) Each Class D-1 Interest of Group LLC issued and outstanding
immediately prior to the Effective Time, all of which are held
by Nexstar, will be canceled and extinguished and automatically
converted into [ ] shares of Class A Common Stock of the
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Surviving Corporation.
(iii) Each Class D-2 Interest of Group LLC issued and outstanding
immediately prior to the Effective Time will be canceled and
extinguished
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and automatically converted into [ ] shares of Class C Common
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Stock of the Surviving Corporation.
(iv) Each Class B-1 Interest of Group LLC issued and outstanding
immediately prior to the Effective Time will be canceled and
extinguished and automatically converted into [ ] share of
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Class B Common Stock of the Surviving Corporation.
(v) Each Class B-2 Interest of Group LLC issued and outstanding
immediately prior to the Effective Time will be canceled and
extinguished and automatically converted into [ ] shares of
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Class B Common Stock of the Surviving Corporation.
(vi) Each Class C-1 Interest of Group LLC issued and outstanding
immediately prior to the Effective Time will be canceled and
extinguished and automatically converted into [ ] share of
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Class A Common Stock of the Surviving Corporation.
(vii) Each Class C-2 Interest of Group LLC issued and outstanding
immediately prior to the Effective Time will be canceled and
extinguished and automatically converted into [ ] share of
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Class A Common Stock of the Surviving Corporation.
(b) The Surviving Corporation shall immediately distribute (the
"Distribution") all of the shares of Class A Common Stock of the
Surviving Corporation that it receives upon such conversion to the
holders of the Old Class B Shares of Nexstar, pro rata based upon such
holders' ownership of Old Class B Shares, and all of the Old Class B
Shares will be canceled and extinguished.
(c) The Old Class A Share of Nexstar will be canceled and extinguished
without any conversion thereof or other consideration payable
therefor.
(d) All of the Common Stock of the Merging Corporations will be canceled
and extinguished without any conversion thereof or other consideration
payable therefor.
(e) All of the Class A Interests and Class B Interests of Holdings II will
be canceled and extinguished without any conversion thereof or other
consideration payable therefor.
5. Surrender and Issuance of Certificates.
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(a) Each holder of record (as of the Effective Time) of a certificate or
certificates that immediately prior to the Effective Time represented
Old Class B Shares (the "Certificates"), who received shares of Class
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A Common Stock of the Surviving Corporation in the Distribution, shall
surrender such Certificates to the Surviving Corporation. Upon
surrender of Certificates for cancellation to the Surviving
Corporation, the holders of such Certificates shall be entitled to
receive in
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exchange therefore certificates representing the number of whole
shares of Class A Common Stock of the Surviving Corporation that they
received in the Distribution. Until so surrendered, outstanding
Certificates will be deemed, from and after the Effective Time, for
all corporate purposes, to evidence only the ownership of the number
of full shares of Class A Common Stock of the Surviving Corporation
received in the Distribution. At the Effective Time, the stock
transfer books of Nexstar will be closed, and no further transfers of
the Old Class B Shares outstanding immediately prior to the Effective
Time shall thereafter be made.
(b) Each holder of Group LLC Interests whose interests are converted into
Common Stock of the Surviving Corporation shall receive a certificate
or certificates representing the number of whole shares of Common
Stock of the Surviving Corporation into which its interests were
converted at the Effective Time.
(c) No fractional shares of Common Stock of the Surviving Corporation will
be issued. The number of shares of Common Stock that each shareholder
of the Surviving Corporation is entitled to receive shall be rounded
down to the nearest whole interest.
6. Definitions. As used in this Agreement, the following terms have the
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respective meanings set forth in this Section 6:
(a) "Group LLC Interest" means any Class A Interest, Class B Interest,
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Class C Interest or Class D Interest of Group LLC, as such terms are
defined in the LLC Agreement.
(b) "LLC Agreement" means the Nexstar Broadcasting Group, L.L.C. Fifth
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Amended and Restated Limited Liability Company Agreement, dated
November 14, 2001.
(c) "Old Class A Share" means the share of Class A Common Stock, par value
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$0.01 per share, of Nexstar this is issued and outstanding immediately
prior to the Effective Time.
(d) "Old Class B Shares" means the shares of Class B Common Stock, par
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value $0.01 per share, of Nexstar that are issued and outstanding
immediately prior to the Effective Time.
7. Approval of Members and Shareholders. This Agreement herein made and
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adopted shall be submitted to the members or shareholders (as applicable)
of the Merging LLCs, the Merging Corporations and Nexstar for their
adoption or rejection in the manner prescribed by the Act or the GCL (as
applicable).
8. Taking of Necessary Action. In the event that this Agreement shall have
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been fully adopted by the requisite members or shareholders (as applicable)
of the Parties in accordance with the provisions of the Act or the GCL (as
applicable), the Parties agree that they will cause to be executed and
filed and recorded any document or documents
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prescribed by the laws of the State of Delaware, and that they will cause
to be performed all necessary acts within the State of Delaware and
elsewhere to effectuate the Merger.
9. Further Action. The managers or board of directors (as applicable) and the
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proper officers of the Parties are hereby authorized, empowered, and
directed to do any and all acts and things, and to make, execute, deliver,
file, and record any and all instruments, papers, and documents which shall
be or become necessary, proper, or convenient to carry out or put into
effect any of the provisions of this Agreement or of the Merger.
10. Termination and Abandonment. This Agreement may be terminated and the
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transactions contemplated hereby may be abandoned at any time,
notwithstanding approval hereof by the members and stockholders (as
applicable) of the Parties.
11. Amendment and Modification. Subject to applicable law, this Agreement may
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be amended, modified and supplemented, in any and all respects, whether
before or after the vote of the members and stockholders (as applicable) of
the Parties to approve this Agreement, by the board of directors of Nexstar
(or by its officers authorized by such board of directors) at any time
prior to the Effective Time with respect to any of the terms contained in
this Agreement; provided, however, that after the approval of this
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Agreement by the members and stockholders (as applicable) of the Parties,
no such amendment, modification or supplement shall result in any reduction
or diminution in the aggregate value of the consideration to be received by
such members and stockholders in the Merger. The good faith determination
by the board of directors that an amendment to this Agreement complies with
the prior sentence shall be conclusive on all such members and
stockholders.
* * * * *
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IN WITNESS WHEREOF, this Agreement of Merger is hereby signed
upon behalf of each of the constituent limited liability companies and
corporations parties thereto.
NEXSTAR BROADCASTING GROUP, L.L.C.
By:
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Name: Xxxxxxx Xxxxx
Title: Secretary
NEXSTAR FINANCE HOLDINGS II, L.L.C.
By:
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Name: Xxxxxxx Xxxxx
Title: Secretary
NEXSTAR BROADCASTING OF NORTHEASTERN
PENNSYLVANIA, INC.
By:
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Name: Xxxxxxx Xxxxx
Title: Secretary
NEXSTAR BROADCASTING OF JOPLIN, INC.
By:
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Name: Xxxxxxx Xxxxx
Title: Secretary
NEXSTAR BROADCASTING OF ERIE, INC.
By:
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Name: Xxxxxxx Xxxxx
Title: Secretary
KBTV BROADCASTING INC.
By:
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Name: Xxxxxxx Xxxxx
Title: Secretary
KFDX BROADCASTING INC.
By:
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Name: Xxxxxxx Xxxxx
Title: Secretary
NEXSTAR BROADCASTING OF ROCHESTER, INC.
By:
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Name: Xxxxxxx Xxxxx
Title: Secretary
KTAB BROADCASTING INC.
By:
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Name: Xxxxxxx Xxxxx
Title: Secretary
ERC HOLDINGS, INC.
By:
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Name: Xxxxxxx Xxxxx
Title: Secretary
NEXSTAR MIDWEST HOLDINGS, INC.
By:
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Name: Xxxxxxx Xxxxx
Title: Secretary
NEXSTAR BROADCASTING OF CHAMPAIGN, INC.
By:
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Name: Xxxxxxx Xxxxx
Title: Secretary
NEXSTAR BROADCASTING OF PEORIA, INC.
By:
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Name: Xxxxxxx Xxxxx
Title: Secretary
KMID BROADCASTING INC.
By:
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Name: Xxxxxxx Xxxxx
Title: Secretary
KTAL BROADCASTING INC.
By:
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Name: Xxxxxxx Xxxxx
Title: Secretary
NEXSTAR ALABAMA HOLDINGS, INC.
By:
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Name: Xxxxxxx Xxxxx
Title: Secretary
NEXSTAR ARKANSAS HOLDINGS, INC.
By:
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Name: Xxxxxxx Xxxxx
Title: Secretary
NEXSTAR BROADCASTING GROUP, INC.
By:
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Name: Xxxxxxx Xxxxx
Title: Secretary
