AMENDMENT NO. 1
Exhibit 2.1
EXECUTION COPY
AMENDMENT NO. 1
This Amendment No.1 (this “Amendment”) to the Agreement and Plan of Merger (as amended
from time to time, the “Merger Agreement”), dated as of May 10, 2011, among Colonel
Holdings, Inc., a Delaware corporation (“Parent”), Colonel Merger Sub, Inc., a Delaware
corporation and an indirect wholly-owned subsidiary of Parent (“Merger Sub”), and CKx,
Inc., a Delaware corporation (the “Company”), shall
be effective as of May 17, 2011.
RECITALS
WHEREAS, Parent, Merger Sub and the Company desire to amend the Merger Agreement upon the
terms and conditions hereinafter set forth; and
WHEREAS, pursuant to Section 8.4 of the Merger Agreement, Parent, Merger Sub and the Company
may amend the Merger Agreement by action taken or authorized by their respective Boards of
Directors.
NOW, THEREFORE, the Merger Agreement is hereby amended as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Defined Terms. Capitalized terms used in this Amendment and not otherwise defined herein
shall have the meanings given to such terms in the Merger Agreement.
ARTICLE II
AMENDMENTS TO MERGER AGREEMENT
Section 2.1 Amendments to the Recitals.
(a) The sixth recital to the Merger Agreement is hereby deleted and replaced with the
following:
“WHEREAS, (i) concurrently with the execution and delivery of this Agreement, Apollo Investment
Fund VII, L.P., certain of its affiliated investment funds and Parent have entered into an equity
commitment letter, dated as of the date hereof (the “Equity Commitment Letter”), and (ii) Xxxxxxx
Xxxxx Bank USA and Parent have entered into an amended and restated debt commitment letter,
effective as of the date hereof (the “Debt Commitment Letter” and together with the Equity
Commitment Letter, the “Commitment Letters”); and”.
(b) The seventh recital to the Merger Agreement is hereby deleted and replaced with the
following:
“WHEREAS, concurrently with the execution and delivery of this Agreement, and as a condition and
inducement to the willingness of Parent and Merger Sub to enter into this Agreement, one or more
stockholders of the Company have delivered to Parent a support agreement (collectively, as each
such support agreement may be amended, modified or supplemented from time to time with the
Company’s prior written consent, the “Support Agreements”) in respect of the Common Shares
(if any) held by them (the “Support Agreement Shares”) and the Series B Preferred Shares
and Series C Preferred Shares (each as hereinafter defined) held by them, pursuant to which such
stockholders shall, among other things, (i) agree not to tender Support Agreement Shares held by
them (if any) into the Offer, (ii) support the Merger and the other transactions contemplated
hereby and (iii) prior to the Effective Time, transfer or exchange the Support Agreement Shares (if
any) and the Series B Preferred Shares and the Series C Preferred Shares held by them to or with
Parent or an Affiliate of Parent, in each case, on the terms and subject to the conditions set
forth in the Support Agreements.”
Section 2.2 Amendment to Section 1.1(b).
(a) On line ten of Section 1.1(b) of the Merger Agreement, the words “fifth (5th) Business Day
prior to” are hereby inserted immediately before the words “the Merger Outside Date”.
(b) On line sixteen of Section 1.1(b) of the Merger Agreement, the words “, or otherwise
subject to voting arrangements consistent with,” are hereby inserted after the words “in accordance
with”.
Section 2.3 Amendment to Section 1.4(a). On line twelve of Section 1.4(a) of the Merger
Agreement, the words “, or otherwise subject to voting arrangements consistent with,” are hereby
inserted after the words “in accordance with”.
Section 2.4 Amendments to Section 1.5.
(a) On line five of Section 1.5(a) of the Merger Agreement, the words “, or otherwise subject
to voting arrangements consistent with,” are hereby inserted after the words “in accordance with”.
(b) On line five of Section 1.5(c) of the Merger Agreement, the words “, or otherwise subject
to voting arrangements consistent with,” are hereby inserted after the words “in accordance with”.
Section 2.5 Amendments to Section 3.1.
(a) Section 3.1(a) of the Merger Agreement is hereby deleted in its entirety and replaced with
the following:
“Each Common Share issued and outstanding immediately prior to the Effective Time (other than (i)
Dissenting Shares, and (ii) Common Shares to be cancelled pursuant to 3.1(c)), shall thereupon be
cancelled and converted automatically into, and shall thereafter only represent the right to
receive, the Offer Price per Common Share in cash, without interest, and subject to
deduction for any required withholding Taxes as described in Section 3.4 (the “Per Share Merger
Consideration”).”
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(b) Section 3.1(c) of the Merger Agreement is hereby deleted in its entirety and replaced with
the following:
“Each Common Share, Series B Preferred Share and Series C Preferred Share (collectively, the
“Shares”) held in the treasury of the Company or owned, directly or indirectly, by Parent
or Merger Sub immediately prior to the Effective Time shall automatically be cancelled and retired
and shall cease to exist, and no consideration shall be delivered in exchange therefor.”
Section 2.6 Amendment to Exhibit A. On line four of subparagraph (a) of Exhibit A to
the Merger Agreement, the words “, or otherwise subject to voting arrangements consistent with,”
are hereby inserted after the words “in accordance with”.
ARTICLE III
MISCELLANEOUS
Section 3.1 Effect on the Merger Agreement. This Amendment shall be deemed incorporated into the
Merger Agreement and shall be construed and interpreted as though fully set forth therein. Except
as amended and modified herein, the Merger Agreement remains in full force and effect.
Section 3.2 Miscellaneous. Article IX of the Merger Agreement shall apply mutatis
mutandis to this Amendment.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed as of the date first
written above by their respective officers thereunto duly authorized.
| COLONEL HOLDINGS, INC. |
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| By: | /s/ Xxxxxx Xxxxx | |||
| Name: | Xxxxxx Xxxxx | |||
| Title: | President | |||
| COLONEL MERGER SUB, INC. |
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| By: | /s/ Xxxxxx Xxxxx | |||
| Name: | Xxxxxx Xxxxx | |||
| Title: | President | |||
| CKX, INC. |
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| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Senior Executive Vice President, Director of Legal and Governmental Affairs |
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[Signature
Page to Amendment No. 1 to the Agreement and Plan of Merger]
