AMENDMENT NO. 4 TO RIGHTS AGREEMENT
Exhibit 4.1
AMENDMENT NO. 4 TO RIGHTS AGREEMENT
This Amendment No. 4 to Rights Agreement (this “Amendment”) is entered into as of November 20,
2008 (to become effective on the date set forth in Section 7.0 of this Amendment), between Image
Entertainment, Inc., a Delaware corporation (the “Company”), and Computershare Trust Company, N.A.,
a Delaware corporation, as Rights Agent (the “Rights Agent”), and amends the Rights Agreement dated
as of October 31, 2005, between the Company and the Rights Agent, as amended by Amendment No. 1 to
the Rights Agreement dated as of March 29, 2007, Amendment No. 2 to the Rights Agreement dated as
of June 25, 2007 and Amendment No. 3 to the Rights Agreement dated as of February 2, 2008 (the
“Rights Agreement”).
WHEREAS, the Company desires to amend the Rights Agreement to prevent certain Persons acting
with the approval of the Board of Directors of the Company who propose to acquire all of the equity
interests in the Company from becoming Acquiring Persons, and to prevent the execution, delivery or
performance of the Merger Agreement (as such term is defined below) or the Voting Agreements (as
such term is defined below) from resulting in a Section 11(a)(ii) Event, a Section 13 Event, a
Distribution Date or a Share Acquisition Date; and
WHEREAS, this Amendment is entered into pursuant to Section 27 of the Rights Agreement prior
to the time that any Person, to the knowledge of the Company, has become an Acquiring Person.
NOW, THEREFORE, in consideration of the premises and the mutual agreements herein set forth,
the parties hereto agree as follows:
1.0 Defined Terms. Terms defined in the Rights Agreement and used and not otherwise defined herein
shall have the meanings given to them in the Rights Agreement.
2.0 Definition of Merger Agreement. The definition of “Merger Agreement” in Section 1 of the
Rights Agreement is hereby amended and restated in its entirety to read in full as follows:
“Merger Agreement” shall mean the Agreement and Plan of Merger made and entered into as of
November 20, 2008, by and among Parent, Merger Sub and the Company, as amended from time to time in
accordance with its terms.
3.0 Definition of Support Agreements. The definition of “Support Agreements” in Section 1 of the
Rights Agreement is hereby deleted in its entirety.
4.0 Additional Definitions. Section 1 of the Rights Agreement is hereby amended to add the
following definitions, which shall be inserted into Section 1 in alphabetical order:
“Merger Sub” shall mean The Conceived Group, Inc., a Delaware corporation and a wholly-owned
subsidiary of Parent.
“Parent” shall mean Nyx Acquisitions, Inc., a Delaware corporation.
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“Voting Agreements” shall mean the Voting Agreements dated as of November 20, 2008 by and
between Parent and certain stockholders of the Company, as amended from time to time in accordance
with their terms.
5.0 Amendment of Section 7. Paragraph (a) of Section 7 of the Rights Agreement is hereby amended
by:
| 5.1 | deleting the word “and” immediately preceding clause (iii) thereof and by
adding a “,” immediately preceding clause (iii) thereof; and |
||
| 5.2 | by adding the following immediately following clause (iii) thereof: “or (iv)
immediately prior to the Effective Time (as such term is defined in the Merger
Agreement). The Company hereby agrees to promptly notify the Rights Agent, in writing,
upon the occurrence of the Effective Time (as such term is defined in the Merger
Agreement), which notice shall specify (i) that the Effective Time (as such term is
defined the Merger Agreement) has occurred, and (ii) the date upon which the Rights
established hereby expired and this Agreement terminated.” |
6.0 Amendment of Section 27. Section 27 of the Rights Agreement is hereby amended by adding the
following clause to the end of the last sentence: “provided that such supplement or amendment does
not adversely affect the rights, duties or obligations of the Rights Agent under this Agreement.”
7.0 Addition of a New Section 35. The Rights Agreement is hereby amended by adding a Section 35
thereof which shall read as follows:
“Section 35. Exception For Merger Agreement. Notwithstanding any
provision of this Agreement to the contrary, neither a Section
11(a)(ii) Event, a Section 13 Event, a Distribution Date, nor a
Share Acquisition Date shall be deemed to have occurred, none of
Parent, Merger Sub or any of their Affiliates or Associates shall be
deemed to have become an Acquiring Person, and no holder of any
Rights shall be entitled to exercise such Rights under, or be
entitled to any rights pursuant to, any of Sections 3(a), 7(a),
11(a) or 13 of this Agreement, in any such case by reason of (a) the
announcement of the Merger (as such term is defined in the Merger
Agreement), (b) the approval, execution or delivery of the Merger
Agreement or any amendments thereof, (c) the execution and delivery
of the Voting Agreements or any amendments thereof, (d) the
commencement or, the consummation of, any of the transactions
contemplated by the Merger Agreement, including the Merger (as such
term defined in the Merger Agreement) or (e) the commencement or,
the consummation of, any of the transactions contemplated by the
Voting Agreements.”
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8.0 Addition of a New Section 36. The Rights Agreement is hereby amended by adding a Section 36
thereof which shall read as follows:
“Section 36. Force Majeure. Notwithstanding anything contained herein to
the contrary, the Rights Agent shall not be liable for any delays or
failures in performance resulting from acts beyond its reasonable control
including, without limitation, acts of God, terrorist acts, shortages of
supply, breakdowns or malfunctions, interruptions or malfunction of computer
facilities, or loss of data due to power failures or mechanical difficulties
with information storage or retrieval systems, labor difficulties, war or
civil unrest.”
9.0 Effectiveness. This Amendment shall be deemed effective as of the time immediately prior to
the signing of the Merger Agreement. Except as amended hereby, the Rights Agreement shall remain
in full force and effect and shall be otherwise unaffected hereby.
10.0 Miscellaneous. This Amendment shall be deemed to be a contract made under the laws of the
State of Delaware and for all purposes shall be governed by and construed in accordance with the
laws of such state. This Amendment may be executed in any number of counterparts, each of such
counterparts shall for all purposes be deemed an original and all such counterparts shall together
constitute but one and the same instrument. If any term, provision, covenant or restriction of
this Amendment is held by a court of competent jurisdiction or other authority to be invalid,
illegal, or unenforceable, the remainder of the terms, provisions, covenants and restrictions of
this Amendment shall remain in full force and effect and shall in no way be affected, impaired or
invalidated.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 4 to the Rights
Agreement to be duly executed as of the day and year first above written.
| IMAGE ENTERTAINMENT, INC. |
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| By: | /s/ XXXXXXX XXXXX | |||
| Name: | Xxxxxxx Xxxxx | |||
| Title: | Associate General Counsel and Vice President of Business & Legal Affairs | |||
| COMPUTERSHARE TRUST COMPANY, N.A. |
||||
| By: | /s/ XXXXXX XXXXX | |||
| Name: | Xxxxxx Xxxxx | |||
| Title: | Vice President | |||
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