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EXHIBIT 2.2
AMENDMENT NO. 1 TO PURCHASE AND EXCHANGE AGREEMENT
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This Amendment No. 1, dated as of May 4, 2000 (this "Amendment Agreement"),
is made and entered into by and among Nassau Broadcasting Partners, L.P., a
Delaware limited partnership ("Buyer"), the parties hereto listed as "Sellers"
on the signature pages hereof (collectively, "Sellers"), BancAmerica Capital
Investors SBIC I, L.P., as agent for the Sellers ("Sellers' Agent"), and Nassau
Broadcasting Partners, Inc., a Delaware corporation and the managing general
partner of Buyer ("NBP"), for the purpose of amending the Purchase and Exchange
Agreement, dated as of March 24, 2000 (the "Purchase and Exchange Agreement"),
by and among the foregoing parties.
RECITALS:
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WHEREAS, the parties hereto entered into the Purchase and Exchange
Agreement for the purposes specified therein;
WHEREAS, the parties hereto desire to amend certain portions of the
Purchase and Exchange Agreement;
WHEREAS, in order to carry out the foregoing objectives, the parties hereto
desire to enter into this Amendment Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants and
agreements contained herein and in the Purchase and Exchange Agreement and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Section 1. Defined Terms. All initially capitalized terms used herein
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and not otherwise defined shall have the respective meanings ascribed thereto in
the Purchase and Exchange Agreement.
Section 2. Certain Definitions. The following definitions shall be
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added to Section 1.1 of the Purchase and Exchange Agreement:
"Mezzanine Investors" means Merrill Lynch Capital Corporation, OZ Master
Fund, Ltd., Caisse de Depot et Placement du Quebec, The Bank of Nova Scotia,
Bank of Montreal and any other holders of any Nassau Equity Interests which have
been issued in accordance with the provisions of the Units Purchase Agreement
dated
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as of May 4, 2000, between Buyer, Merrill Lynch Capital Corporation and the
other purchasers named therein (the "Units Purchase Agreement").
"Mezzanine Registration Rights Agreement" means the Common Stock
Registration Rights Agreement dated as of May 4, 2000 entered into between Buyer
and Merrill Lynch Capital Corporation and certain other persons.
"Original Investors" means Spectrum Equity Investors, L.P., Spectrum Equity
Investors II, L.P., Grotech Partners IV, L.P., Toronto Dominion (U.S.A.), Inc.,
Nassau Holdings, Inc., Noel P. Rahn and Nassau Broadcasting Company.
"Original Investors' Registration Rights Agreement" means the Registration
Rights Agreement to be dated on or about the date of this Agreement, entered
into between Buyer and the Original Investors.
"Permitted Distribution" means the Second Contingent Amount as defined in
the Third Restated Agreement of Limited Partnership of Buyer, to be made by
Buyer to Louis F. Mercatanti Jr. upon the issuance of the Nassau Mezzanine
Notes.
Section 3. Antidilution. Buyer confirms that the issuance of Nassau
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Equity Interests (including without limitation the "Initial LP Units," the
"Incremental LP Units" and the "Antidilutive Initial LP Units" as such terms are
defined in the Units Purchase Agreement) to the Mezzanine Investors pursuant to
the Units Purchase Agreement shall not in any manner whatsoever affect, as
applicable, (i) the minimum percentage of the aggregate Nassau Equity Interests
issuable to the Continuing Sellers pursuant to Section 2.4(e)(i) of the Purchase
and Exchange Agreement or (ii) the minimum percentage of the aggregate Nassau
Partnership Interests issuable to the Continuing Sellers pursuant to Section
2.4(f)(i) of the Purchase and Exchange Agreement and the minimum percentage of
NBP Common Stock issuable to the Continuing Sellers pursuant to Section 2.5 of
the Purchase and Exchange Agreement. Buyer further confirms that Buyer will
issue Antidilutive Aurora LP Investor Units (as such term is defined in the
Units Purchase Agreement) to the Continuing Sellers pursuant to and in
accordance with Section 2.01 of the Units Purchase Agreement in order to
maintain the minimum percentages described in the immediately preceding clauses
(i) and (ii).
Section 4. Registration Rights Agreement. Section 4.2(b) of the
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Registration Rights Agreement contained in Exhibit C of the Purchase and
Exchange Agreement is hereby amended in its entirety to read as follows:
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"If, in the opinion of the managing underwriter or underwriters
selected by the Company, it is appropriate to limit the amount of
Registrable Securities to be included in the offering, then the Company
shall be required to include in the registration only that amount of
Registrable Securities, if any, which the managing underwriter or
underwriters reasonably believe should be included therein. In such event:
(1) in cases only involving the registration for sale of securities for the
Company's own account (which may include securities included pursuant to
the exercise of piggy-back rights herein and in other contractual
commitments of the Company), securities shall be registered in such
offering in the following order of priority: (i) first, the securities
which the Company proposes to register, (ii) second, provided that no
securities sought to be included by the Company have been excluded from
such registration, the securities which have been requested to be included
in such registration by the Securityholders pursuant to this Agreement on a
pari passu basis with (x) any securities of the Company as to which the
Mezzanine Investors may be entitled to exercise "piggy-back" registration
rights pursuant to the Mezzanine Registration Rights Agreement and (y) any
securities of the Company as to which the Original Investors may be
entitled to exercise "piggy-back" registration rights pursuant to the
Original Investors' Registration Rights Agreement (such securities for the
account of the Securityholders, the Mezzanine Investors and the Original
Investors to be allocated among such Securityholders, the Mezzanine
Investors and the Original Investors pro rata based on the amount of
securities sought to be registered by the Securityholders, the Mezzanine
Investors and the Original Investors) and (iii) third, provided that no
securities sought to be included by the Company, the Securityholders, the
Mezzanine Investors or the Original Investors have been excluded from such
registration, the securities of any other Persons entitled to exercise
"piggy-back" registration rights pursuant to contractual commitments of the
Company (pro rata based on the amount of securities sought to be registered
by such Persons); and (2) in cases not involving the registration for sale
of securities for the Company's own account only, securities shall be
registered in such offering in the following order of priority: (i) first,
securities to be sold for the account of the Company and the securities of
any Person whose exercise of a "demand" registration right pursuant to a
contractual commitment of the Company is the basis for the registration,
(ii) second, provided that no securities of the Company or
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such Person referred to in the immediately preceding clause (i) have been
excluded from such registration, the securities requested to be included in
such registration by the Securityholders (excluding those of any
Securityholder who is also a Person referred to in the immediately
preceding clause (i)) pursuant to this Agreement on a pari passu basis with
(x) any securities of the Company as to which the Mezzanine Investors may
be entitled to exercise "piggy-back" registration rights pursuant to the
Mezzanine Registration Rights Agreement and (y) any securities of the
Company as to which the Original Investors may be entitled to exercise
"piggy-back" registration rights pursuant to the Original Investors'
Registration Rights Agreement (such securities for the account of the
Securityholders, the Mezzanine Investors and the Original Investors to be
allocated among the Securityholders, the Mezzanine Investors and the
Original Investors pro rata based on the amount of securities sought to be
registered by the Securityholders, the Mezzanine Investors and the Original
Investors) and (iii) third, provided that no securities of the Company or
such Person referred to in the immediately preceding clause (i) or of the
Securityholders, the Mezzanine Investors or the Original Investors referred
to in the immediately preceding clause (ii) have been excluded from such
registration, securities of any other Persons entitled to exercise "piggy-
back" registration rights pursuant to contractual commitments (pro rata
based on the amount of securities sought to be registered by such
Persons)."
Section 5. Restated Securityholders' Agreement. The Purchase and
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Exchange Agreement is hereby amended as follows:
(a) the reference in the Table of Contents of the Purchase and Exchange
Agreement to "Exhibit E Second Amended and Restated Securityholders' Agree
ment," is hereby replaced with the reference "Exhibit E Third Amended and
Restated Securityholders' Agreement";
(b) all references to "Second Amended and Restated Securityholders'
Agreement" are hereby changed to "Third Amended and Restated Securityholders'
Agreement"; and
(c) Exhibit E is hereby replaced in its entirety with Exhibit E contained
in Exhibit A to this Amendment Agreement.
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Section 6. Amendment to Restated Investment Agreement. The Purchase
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and Exchange Agreement is hereby amended to remove Exhibit F, Form of Amendment
to Restated Investment Agreement, and all references in the Purchase and
Exchange Agreement to Exhibit F are hereby deleted.
Section 7. Restated Agreement of Limited Partnership. The Purchase and
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Exchange Agreement is hereby amended as follows:
(a) the reference in the Table of Contents of the Purchase and Exchange
Agreement to "Exhibit G Fourth Restated Agreement of Limited Partnership," is
hereby replaced with the reference "Exhibit G Form of Fifth Restated Agreement
of Limited Partnership";
(b) all references to "Fourth Restated Agreement of Limited Partnership"
are hereby changed to "Fifth Restated Agreement of Limited Partnership"; and
(c) Exhibit G is hereby replaced in its entirety with Exhibit G contained
in Exhibit B to this Amendment Agreement.
Section 8. Additional Covenants of Buyer/Dividends. Section
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5.3(a)(vii) of the Purchase and Exchange Agreement is hereby amended in its
entirety to read as follows:
"Buyer will not declare or pay any dividends on or make any other
distributions (whether in cash, stock or property) in respect of any of its
equity securities, or split, combine or reclassify any of its equity
securities; provided, that (1) Buyer may make the Permitted Distribution
and (2) any Nassau Company may pay such dividends or make such
distributions to another Nassau Company."
Section 9. Interpretation. When a reference is made in this Amendment
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Agreement to an Article, Section, Schedule or Exhibit, such reference shall be
to an Article or Section of, or Schedule or an Exhibit to, the Purchase and
Exchange Agreement unless otherwise indicated.
Section 10. Counterparts. This Amendment Agreement may be executed in
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two or more counterparts, each of which shall be deemed an original and which
together constitute the same agreement.
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Section 11. Governing Law. This Amendment Agreement shall be governed
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by and construed and enforced in accordance with the laws of the State of
Delaware (without reference to such State's conflicts of law rules).
[Signatures on following pages]
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IN WITNESS WHEREOF, the parties have duly executed this Amendment Agreement as
of the date first above written.
BUYER:
NASSAU BROADCASTING PARTNERS, L.P.
By: Nassau Broadcasting Partners, Inc., as
Managing General Partner
By:
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Name:
Title:
SELLERS:
BANCAMERICA CAPITAL INVESTORS SBIC I, L.P., AS A SELLER AND AS
SELLERS' AGENT
By: BANCAMERICA CAPITAL
MANAGEMENT SBIC I, LLC, its general partner
By: BANCAMERICA CAPITAL MANAGEMENT I, L.P., its sole
member
By: BACM I GP, LLC, its general partner
By:
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Name: Robert H. Sheridan III
Title: Managing Director
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FRANK D. OSBORN
ALLISON WAITE OSBORN
CAROLINE LADNER OSBORN
ELIZABETH ANDREW OSBORN
FRANK WILLIAM OSBORN
KATHERINE NELSON OSBORN
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Frank D. Osborn, on behalf of himself and
as Attorney-in-Fact
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Frank G. Washington
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Vincent M. Cremona
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HELLER FINANCIAL, INC.
By:
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Name:
Title:
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ALLIED CAPITAL CORPORATION
By:
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Name:
Title:
ALLIED INVESTMENT CORPORATION
By:
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Name:
Title:
UNIONBANCAL VENTURE CORPORATION
By:
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Name:
Title:
By:
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Name:
Title:
AURORA MANAGEMENT GROUP, LLC
By:
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Frank D. Osborn
Authorized Person
NASSAU BROADCASTING PARTNERS, INC.
By:
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Name:
Title:
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AURORA COMMUNICATIONS, LLC,
solely with respect to its rights, duties, obligations
and with agreements set forth in Section 8.2 of the
Purchase and Exchange Agreement
By: AURORA MANAGEMENT, INC.,
its sole Manager
By:
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Name:
Title:
