April 17, 2009 VIA ELECTRONIC MAIL Nyx Acquisitions, Inc. c/o Q-Black, LLC 43 Norfolk San Francisco, CA 94110 Attention: Joe Q. Bretz
Exhibit 99.1
April 17, 2009
Nyx Acquisitions, Inc.
c/o Q-Black, LLC
00 Xxxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxx X. Xxxxx
c/o Q-Black, LLC
00 Xxxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxx X. Xxxxx
Re: Nyx Acquisitions Inc.—Image Entertainment, Inc.
Dear Xx. Xxxxx:
Reference is made to that certain Agreement and Plan of Merger, dated as of November 20, 2008,
as amended on February 27, 2009, March 24, 2009 and April 8, 2009 (as amended, the “Merger
Agreement”), among Image Entertainment, Inc. (“Image”), Nyx Acquisitions, Inc. and The
Conceived Group, Inc. (collectively, “Nyx”). Capitalized terms not otherwise defined in
this letter shall have the meanings ascribed to them in the Merger Agreement.
Pursuant to the Merger Agreement, Nyx had the option to extend the Scheduled Closing Date set
forth in Section 2.01(b) of the Merger Agreement from April 6, 2009 to April 20, 2009 if,
pursuant to Section 3.09 of the Merger Agreement, Nyx, among other things, paid an
additional amount of One Million Dollars ($1,000,000) in immediately available funds (the Fifth
Payment”) to an account designated by Image for receipt of such funds by 12:00 p.m. local time
on April 17, 2009. Nyx failed to deliver the Fifth Payment in accordance with Section
3.09. Therefore, Nyx is in breach of its obligation consummate the Merger no later than the
Scheduled Closing Date, April 6, 2009.
In accordance with its rights under Section 9.01(e) of the Merger Agreement, Image
hereby terminates the Merger Agreement, effective as of 12:01 p.m. Pacific Standard Time today.
Accordingly, we respectfully remind Nyx that pursuant to Section 3.09 of the Merger
Agreement and those certain Fourth Amended and Restated Irrevocable Trust Instructions, dated April
8, 2009 (the “Trust Instructions”), among Image, Nyx and Manatt, Xxxxxx & Xxxxxxxx, LLP,
special legal counsel to Image (“Manatt”), Nyx authorized the release of the remaining One
Million Five Hundred Thousand Dollars ($1,500,000) (the “Full Release Amount”) held in
trust for the benefit of the Company to secure the Business Interruption Fee (the “Full Release
of Deposit”), transferred and assigned to the Company all right, title and interest in and to
the Full Release Amount, irrevocably authorized and instructed Manatt to take instruction solely
from the Company with respect to the Full Release Amount, and agreed to release and waive all
claims against the Company with respect to the Full Release Amount.
00000 XXXXXXXX XXXXXX • SUITE 200 • CHATSWORTH, CA 00000-0000 • TEL 000.000.0000
xxx.xxxxx-xxxxxxxxxxxxx.xxx
Nothing herein should be construed as limiting or waiving any additional rights or remedies at
law or equity available to Image, all of which are hereby reserved.
Sincerely, |
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/s/ XXXX X. XXXXXX | ||||
Xxxx X. Xxxxxx | ||||
President | ||||
cc:
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Image Board of Directors Xxxxx X. Xxxxxxxx, Esq. Xxxxxx Xxxxxxx, Esq. |