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EXHIBIT 2.2.3
AMENDMENT NO. 2
TO
ASSET PURCHASE AGREEMENT
BETWEEN
COMMUNITY PACIFIC BROADCASTING COMPANY L.P.
AND
PACIFIC STAR COMMUNICATIONS, INC.
DATED AS OF
JULY 14, 1997
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AMENDMENT NO. 2, dated as of July 14, 1997, to the Asset Purchase
Agreement, dated as of December 26, 1996, as amended by an Amendment No. 1,
dated as of May 28, 1997, between Community Pacific Broadcasting Company L.P.,
a Delaware limited partnership ("Seller"), and Pacific Star Communications,
Inc. (formerly named Community Acquisition Company, Inc.), a Delaware
corporation ("Buyer").
RECITALS
A. On December 26, 1996, Buyer and Seller entered into an Asset
Purchase Agreement (the "Agreement") providing, among other things, for the
sale by the Seller to the Buyer of substantially all the assets used or useful
in the operation of the stations listed on Annex A to such Asset Purchase
Agreement. Such Asset Purchase Agreement was amended by an Amendment No.1,
dated as of May 28, 1997, and such Asset Purchase Agreement as so amended is
referred to herein as the "Agreement".
B. Buyer and Seller desire to amend the Agreement in accordance
with the provisions of Section 12.3 of the Agreement to change, among other
things, the amount of the Purchase Price referred to therein, and to replace
the forms of Employment Agreement and Indemnification Escrow Agreement which
appears as Exhibit D and Exhibit G, respectively, to the Agreement.
AGREEMENTS
NOW, THEREFORE, in consideration of the agreements contained herein
and other good and valuable consideration, the sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. SECTION 2.3. Section 2.3 of the Agreement is hereby amended
in its entirety to read as follows:
2.3 PURCHASE PRICE. Subject to the adjustments set forth
in Section 2.4 and 2.5(b), the Purchase Price for the Assets
is the sum of (a) Thirty-Four Million Dollars ($34,000,000),
and (b) the product obtained by multiplying the number of days
from but not including, June 30, 1997 to and including the
Closing Date by Eight Thousand Three Hundred Thirty-three
Dollars and Thirty-three cents ($8,333.33).
2. FORM OF EMPLOYMENT AGREEMENT. The form of Employment
Agreement between Buyer and Xxxxx X. Xxxxxxxx, III appearing as Exhibit D to
the Agreement is hereby deleted in its entirety and the form of Employment
Agreement appearing as Annex I to this Amendment is substituted therefor as a
new Exhibit D to the Agreement.
3. FORM OF INDEMNIFICATION ESCROW AGREEMENT. The form of
Indemnification Escrow Agreement appearing as Exhibit G to the Agreement is
hereby deleted in its entirety and the form of Indemnification Escrow Agreement
appearing as Annex II to this Amendment is substituted therefor as a new
Exhibit G to the Agreement.
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4. SCHEDULES. Schedule 3.1(k) and Schedule 3.1(p) to the
Agreement are hereby deleted in their entirety and the Schedule 3.1(k) and
3.1(p) attached hereto are substituted therefor.
5. LOCAL MARKETING AGREEMENT. In accordance with the provisions
of Section 3 of the Local Marketing Agreement, dated February 28, 1997 (the
"LMA"), between Seller and Buyer, the LMA shall terminate on the Closing Date.
As provided in the LMA, the Operating Expense Payment and the LMA Fee Payment
referred to in the LMA shall be prorated on a daily basis during the month in
which the Closing Date occurs. On the Closing Date, Seller shall reimburse
Buyer for any portion of the LMA Fee Payment previously paid for such month in
excess of the pro-rated amount that shall have accrued for such month on or
prior to the Closing Date. An adjustment for any previously paid Operating
Expense Payment for such month shall be made when the adjustments and
prorations contemplated by Section 2.4 of the Agreement are made.
6. GENERAL. This Amendment (a) may be executed and delivered
(including by facsimile transmission) in two or more counterparts, each of
which will be deemed an original, but all of which shall constitute one and the
same instrument, and (b) shall be governed by the laws of the State of
Delaware. The captions of this Amendment shall not affect its interpretation
in any respect. Except to the extent herein amended, the Agreement is in all
respects hereby ratified, confirmed and approved. Whenever reference is made
to the Agreement in any certificate, letter, notice or other instrument, such
reference shall be interpreted as being a reference to the Agreement as amended
by this Amendment and by any subsequent amendment entered into pursuant to the
applicable provisions of the Agreement.
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IN WITNESS WHEREOF, Seller and Buyer have caused this Amendment to be
signed, all as of the date first written above.
SELLER:
COMMUNITY PACIFIC BROADCASTING
COMPANY L.P.
By: Broadcast Management Corporation,
its general partner
/s/ XXXXX X. XXXXXXXX, III
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By: Xxxxx X. Xxxxxxxx, III
Its: President
BUYER:
PACIFIC STAR COMMUNICATIONS, INC.
/s/ XXXXXXX X. XXXXXXXX, XX.
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By: Xxxxxxx X. Xxxxxxxx, Xx.
Its: Vice President
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