Exhibit 2.2
AMENDMENT NO. 1 TO THE MERGER AGREEMENT
This AMENDMENT NO. 1 TO THE MERGER AGREEMENT, dated as of September 5,
2000 (this "Amendment No. 1"), by and among Cordiant Communications Group plc, a
company organized under the laws of England and Wales ("Parent"), Lighthouse
Acquisition, Inc., a Delaware corporation and a wholly owned subsidiary of
Parent ("Merger Sub"), and Lighthouse Global Network, Inc., a Delaware
corporation (the "Company").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company entered into that certain Merger Agreement, dated
as of July 4, 2000 (the "Merger Agreement"), among Parent, Merger Sub and the
Company; and
WHEREAS, in accordance with Section 12.5 of the Merger Agreement, the
parties hereto desire to amend the Merger Agreement as set forth herein.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein, and other good and valuable consideration, the sufficiency and receipt
of which is acknowledged, intending to be legally bound, the parties hereto
agree as follows:
A. Amendments to the Merger Agreement.
1. Section 4.4(a) of the Company Disclosure Letter is hereby
amended to include the following:
"18. The Letter Agreement, dated July 4, 2000, by and among
the Company and certain employees of Financial Dynamics Limited
relating to certain payments to be made to certain Financial
Dynamics Limited employees, provides for the payment of such
amounts upon the Closing; provided, unless otherwise agreed,
Stockholders of the Company are required to make such payments
on behalf of the Company.
19. The Agreement, dated July 4, 2000, by and among the
Company, Lighthouse Holdings (UK) Limited, EFG Reads Trustees
Limited, Financial Dynamics Holdings Limited, Financial Dynamics
Limited, Parent and the persons set forth on Schedule 1 attached
thereto, provides for the acceleration of Contingent Payments at
the Effective Time.
20. The Directors & Officers, Fiduciary, and Miscellaneous
Insurance policies issued to the Company by Reliance Universal
Insurance Company, Illinois National Insurance Company, Gulf
Insurance Company and Federal Insurance Company will terminate
at Closing."
2. Section 4.6 of the Company Disclosure Letter is hereby
amended to include the following:
"47. Amendments to the Second Amended and Restated Certificate
of Incorporation, as amended, disclosed on Section 6.1(c) of the
Company Disclosure Letter."
3. Section 4.16(a) of the Company Disclosure Letter is hereby
amended to include the following:
"6. Three employees (Brad Fish, Dick McCann and Bob Croasdale)
of Communicator Sports & Entertainment, Inc. (California) have
indicated their intention to terminate their employment."
4. Item 12 of Section 6.1 of the Company Disclosure Letter is
hereby amended to insert after "options" and before "." the following:
"and to remove the requirement that Julian Hanson-Smith
immediately exercise all options granted pursuant to his Option
Agreement (as such term is defined therein) and sell the shares
underlying such options in connection with a change of control"
5. Section 6.1(c) of the Company Disclosure Letter is hereby
deleted and replaced in its entirety to read as follows:
"1. Granting five votes per share to the holders of the 6%
Preferred.
2. The removal of the rights of redemption and 35 day
notification of the holders of 8% Preferred in a change of
control situation.
3. Granting one vote per share to the holders of the Class B
common stock.
4. Removing the automatic conversion of Class B common stock
into Class A common stock upon a change of control or other
circumstances and references to Investor Agreement.
5. Increasing the number of votes of the holders of the Class A
common stock to 5,000 votes per share."
6. Section 4.22 of the Merger Agreement is hereby deleted and
replaced in its entirety with the following:
"Section 4.22 Acquisition Agreement Payments. Except as set
forth in that certain Agreement, dated July 4, 2000, by and
among the Company, Lighthouse Holdings (UK) Limited, EFG Reads
Trustees Limited, Financial Dynamics Holdings Limited, Financial
Dynamics Limited, Parent and the persons set forth on Schedule 1
attached thereto, the consummation of the transactions
contemplated by this Agreement will not result in an
acceleration of the Contingent Payments."
7. The third and fourth sentences of Section 2.9(a) of the
Merger Agreement are hereby revised to insert after "Parent Share Value" and
before "." in the third sentence, and after "Common Stock Exchange Ratio" and
before "." in the fourth sentence, the following:
"; provided, that the mechanism or steps for receiving such
Parent Shares shall be as set forth in the Election Notice"
8. Notwithstanding anything to the contrary contained in Section
2.9 of the Merger Agreement, the parties hereby agree that the forms of the
Election Notice shall be mutually agreed upon by the Company and the Parent
prior to Closing. Notwithstanding anything to the contrary contained in Section
2.9 of the Merger Agreement, the Parent or its designee shall distribute and
collect the Election Notices.
9. The second sentence of Section 4.21(a) of the Merger
Agreement is hereby revised to insert after "part of the insurance carriers" and
before "." the following:
", except as provided in Item 20 of Section 4.4(a) of the
Company Disclosure Letter".
10. The first clause of the second sentence of Section 4.2(a) of
the Merger Agreement, beginning with the words "As of the date of this
Agreement" and ending with the words "nonassessable and free of preemptive
rights" is hereby amended and restated to read as follows:
"As of the date of this Agreement, (i) (a) 9,190,350.961 shares
of Class A Common Stock, (b) 1,119,015 shares of Class B Common
Stock and (c) 104,066.58684 shares of 8% Preferred Stock were
issued and outstanding, all of which were validly issued, fully
paid and nonassessable and free of preemptive rights".
11. The Merger Agreement is hereby amended to insert a Section
7.15 which shall read as follows:
"Section 7.15 Company 401(k) Plan. Upon the reasonable request
of Parent, the Company shall use its commercially reasonable
efforts to amend or terminate its 401(k) employee benefit plan
prior to the Closing; provided, however, the stockholders of the
Company shall have no liability with respect to such termination
or amendment to either Parent or any other Person and Parent
shall hold the stockholders of the Company harmless with respect
to any liability arising out of, or relating to, such amendments
or terminations."
12. Notwithstanding Section 9.3(d) of the Merger Agreement,
Parent shall file a registration statement on Form S-8 with the SEC, which
registration statement shall be effective on the date of the Effective Time,
with respect to the Parent Ordinary Shares to be issued upon the exercise of the
Stock Options after the Effective Time.
13. Clause (b) of Section 12.4 of the Merger Agreement is hereby
deleted and replaced in its entirety with the following:
(b) except as otherwise provided in Section 2.9(b), 7.10 and
7.15, is not intended to confer upon and Person other than the
parties any rights or remedies hereunder.
B. Parent Consent. Pursuant to Section 6.1 of the Merger Agreement,
Parent hereby consents and, if applicable, waives the prior written consent
requirement contained in Section 6.1 to the following:
1. The Company amending the Stock Option Agreement, dated August
15, 1999, among the Company and Michael Fetchko, so as to change the Grant Date
(as such term is defined therein) of such Stock Option Agreement to January 1,
1999.
2. The Company issuing options to purchase up to 6,000 shares of
Class B Common Stock at $19.00 per share.
3. The Company amending the following agreements in order to
eliminate any payments which may be considered "parachute payments" within the
meaning of Section 280G(b) of the Internal Revenue Code of 1986, as amended, and
subsequently submitting for approval to the Company's shareholders resolutions
approving the payment of such amounts:
a. Senior Management Agreement, dated October 1, 1999, by
and between the Company and Victoria Leavitt, as amended.
b. Senior Management Agreement, dated June 16, 1999, by and
between the Company and Timothy Donmoyer.
c. Change of Control Agreement, dated February 16, 2000, by
and between the Company and Julian Hanson-Smith.
4. Lighthouse Holdings (UK) Limited entering into an agreement
with Lake Creek Limited to transfer, at low or no cost, all of the personal
property located at 7 Albemarle Street, London and which is used in the ordinary
course of business, to Lake Creek Limited.
C. Parent Requests. Parent hereby confirms its prior request that the
Company approve the amendments to the Lighthouse Global Network, Inc. 401(k)
Profit Sharing Plan and Trust set forth in the two Actions by Written Consent of
the Board of Directors and the Executive Committee of Lighthouse Global Network,
Inc., each dated September 5, 2000.
D. Definitions. All capitalized terms used herein shall, unless
otherwise defined herein, have the respective meanings set forth in the Merger
Agreement.
E. Continuity. Except as amended by this Amendment No. 1, the Merger
Agreement shall continue to be and shall remain in full force and effect in
accordance with its terms. All references to the Merger Agreement from and after
the date hereof shall be deemed to include the Merger Agreement and this
Amendment No.1.
F. Counterparts. This Amendment No. 1 may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute but
one and the same instrument.
G. Effectiveness. The amendments contemplated by this Amendment No. 1
shall become effective as of the day and year first above written.
H. Captions. The headings of the sections of this Amendment No. 1 are
for convenience of reference only and shall not modify, define, expand or limit
any of the terms or provisions of this Amendment No. 1.
I. Severability. Any provision of this Amendment No. 1 which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
J. Governing Law. This Amendment No. 1 shall in all respects be
governed by, and construed in accordance with, the laws of the State of New
York, without giving effect to the conflict of laws provisions thereof.
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IN WITNESS WHEREOF, this Amendment No. 1 has been duly
executed and delivered by the undersigned as of the day and year first above
written.
CORDIANT GROUP COMMUNICATIONS PLC
By: /S/ Arthur D'Angelo
-------------------------------
Name: Arthur D'Angelo
Title: Chief Financial Officer
LIGHTHOUSE ACQUISITION, INC.
By: /S/ Arthur D'Angelo
-------------------------------
Named: Arthur D'Angelo
Title: President
LIGHTHOUSE GLOBAL NETWORK, INC.
By: /S/ Kathleen M. Johnston
-------------------------------
Name: Kathleen M. Johnston
Title: Vice President
