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On April 27, 1998, representatives of Times Mirror, TMD,
Bender, REUS, REBV, MB Parent, and MergerSub executed an
agreement entitled “Amended and Restated Agreement and Plan of
Merger” (the Bender agreement). Through the Bender agreement,
MergerSub replaced CBM Acquisition Corp. as a party to the Bender
transaction. The Bender agreement superseded the Agreement and
Plan of Merger in its entirety.
The recitals to the Bender agreement stated, in pertinent
part, the following:
WHEREAS, the TM Parties [Times Mirror, TMD, and
Bender, collectively], Acquiror [REUS and REBV,
collectively], MB Parent, and CBM Acquisition Corp.
have entered into an Agreement and Plan of Merger dated
as of April 26, 1998 (the “Existing Merger Agreement”);
WHEREAS, the TM Parties and the Reed Parties
[REUS, REBV, MB Parent, and MergerSub, collectively]
desire to amend and restate the Existing Merger
Agreement on the terms and subject to the conditions
set forth in this Agreement;
WHEREAS, in anticipation of the Merger (as defined
in Section 1.1), MB Parent will file a Restated
Certificate of Incorporation of MB Parent * * * with
the Secretary of State of the State of Delaware;
WHEREAS, in anticipation of the Merger, MergerSub
will file a Restated Certificate of Incorporation of
MergerSub * * * with the Secretary of State of the
State of New York;
WHEREAS, immediately prior to the Effective Time
(as defined below), in consideration of an amount in
cash equal to $1,375,000,000 less the net proceeds
received by MergerSub from the MergerSub Debt (as
defined below) from REUS and REBV, MergerSub will issue
to REUS (i) seven hundred and ninety-two (792) shares
of Common Stock, par value $.01 per share, of MergerSub
(“MergerSub Common Stock”), which MergerSub Common
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