Exhibit 2.1
AMENDMENT NO. 4
TO
AGREEMENT AND PLAN OF MERGER
AMONG
SFX ENTERTAINMENT, INC.,
SFX ACQUISITION CORP.
AND
THE MARQUEE GROUP, INC.
AMENDMENT NO. 4 TO AGREEMENT AND PLAN OF MERGER dated as of
January 24, 1999, among SFX Entertainment, Inc., a Delaware corporation
("SFX"), SFX Acquisition Corp., a Delaware corporation and a wholly-owned
subsidiary of SFX ("Acquisition Sub"), and The Marquee Group, Inc., a Delaware
corporation ("Marquee").
WHEREAS, SFX, Acquisition Sub and Marquee have entered into
an Agreement and Plan of Merger, dated as of July 23, 1998 (as amended, the
"Merger Agreement"), pursuant to which, among other things, the parties agreed
to the merger of Acquisition Sub with and into Marquee, upon the terms and
subject to the conditions set forth in the Merger Agreement;
WHEREAS, SFX, Acquisition Sub and Marquee have entered into
Amendments Nos. 1, 2 and 3 to the Merger Agreement;
WHEREAS, the parties to the Merger Agreement desire to
further amend the Merger Agreement as set forth herein;
WHEREAS, the Board of Directors of Marquee (including the
Marquee Independent Committee) (a) has determined that the Merger (giving
effect to this Amendment No. 4) is advisable and in the best interests of
Marquee and its stockholders, (b) has approved this Amendment and the
Transactions and (c) has recommended the adoption of the Merger Agreement and
the Merger by, and directed that the Merger Agreement and the Merger be
submitted to a vote of, the stockholders of Marquee;
WHEREAS, the Board of Directors of SFX (including the SFX
Independent Committee) has determined that the Merger (giving effect to this
Amendment No. 4) is in the best interests of SFX and its stockholders and has
approved this Amendment and the Transactions; and
WHEREAS, capitalized terms used but not defined herein have
the meanings ascribed to them in the Merger Agreement;
NOW, THEREFORE, the parties to the Merger Agreement further
agree as follows:
1. Section 2.01(b) is hereby deleted in its entirety and
replaced by the following:
(b) 'Exchange Ratio' shall have the following meaning,
subject to adjustment pursuant to Section 2.01(c):
(i) if the SFX Class A Common Stock Price (as
defined hereinafter) is less than or equal to $42.75, then
'Exchange Ratio' shall mean 0.1111 of a share of SFX Class A
Common Stock;
(ii) if the SFX Class A Common Stock Price is
greater than $42.75 but less than or equal to $60.00, then
'Exchange Ratio' shall
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mean a number of shares of SFX Class A Common Stock equal to
the quotient obtained by dividing $4.75 by the SFX Class A
Common Stock Price;
(iii) if the SFX Class A Common Stock Price is
greater than $60.00 but less than or equal to $66.00, then
'Exchange Ratio' shall mean a number of shares of SFX Class A
Common Stock equal to the difference between (A) 0.1000 less
(B) the quotient obtained by dividing 1.25 by the SFX Class A
Common Stock Price; and
(iv) if the SFX Class A Common Stock Price is
greater than $66.00, then 'Exchange Ratio' shall mean a
number of shares of SFX Class A Common Stock equal to the
quotient obtained by dividing $5.35 by the SFX Class A Common
Stock Price.
As used in this Agreement, the term 'SFX Class A Common Stock Price'
means the average of the last reported sale price of the SFX Class A
Common Stock for the fifteen consecutive trading days ending on the
fifth trading day prior to the Effective Time on the primary exchange
on which the SFX Class A Common Stock is traded, including the Nasdaq
National Market.
2. Marquee hereby represents to SFX that it has received the
written opinion of the Marquee Banker on the date of this Amendment to the
effect that, as of the date hereof, the Merger Consideration (giving effect
hereto) is fair, from a financial point of view, to the holders of Marquee
Common Stock. This opinion supersedes the opinions delivered pursuant to
Section 3.14 of the Merger Agreement and Section 2 of Amendment No. 3 to the
Merger Agreement.
3. SFX hereby represents to Marquee that it has received the
written opinion of the SFX Banker to the effect that the Merger Consideration
(giving effect to this Amendment No. 4) to be offered by SFX in the Merger is
fair, from a financial point of view, to SFX as of the date hereof. This
opinion supersedes the opinions delivered pursuant to Section 4.11 of the
Merger Agreement and Section 3 of Amendment No. 3 to the Merger Agreement.
4. The parties hereby amend the Merger Agreement to add the
following Section 6.16:
SECTION 6.16. FINANCING MATTERS. SFX hereby agrees to provide
financing to Marquee, on mutually acceptable terms and in an amount
not to exceed US$5.0 million in the aggregate, solely for purposes of
permitting Marquee to make the acquisition described on Schedule 6.16
hereof. If this Agreement is terminated for any reason, the amount of
such financing, together with interest thereon at the rate stated
therein, shall be repaid by Marquee to SFX within one year of such
termination.
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5. The parties hereby amend the Merger Agreement to include
Schedule 6.16 hereto as Schedule 6.16 thereof.
6. Marquee has all necessary corporate power and authority to
execute and deliver this Amendment and, with respect to the Merger, upon the
approval and adoption of the Merger Agreement by Marquee's stockholders in
accordance with the Merger Agreement and Delaware Law, to perform its
obligations hereunder and to consummate the Transactions. The execution and
delivery of this Amendment by Marquee and the consummation by Marquee of the
Transactions have been duly and validly authorized by all necessary corporate
action, and no other corporate proceedings on the part of Marquee are necessary
to authorize this Amendment or to consummate the Transactions (other than, with
respect to the Merger, the approval and adoption of the Merger Agreement by the
stockholders of Marquee as set forth in Section 3.15 of the Merger Agreement
and the filing of an appropriate Certificate of Merger with the Secretary as
required by Delaware Law). This Amendment has been duly and validly executed
and delivered by Marquee and, assuming the due authorization, execution and
delivery of this Amendment by SFX and Acquisition Sub, constitutes a legal,
valid and binding obligation of Marquee, enforceable against Marquee in
accordance with its terms.
7. Each of SFX and Acquisition Sub has all necessary
corporate power and authority to execute and deliver this Amendment, to perform
its obligations hereunder and to consummate the Transactions. The execution and
delivery of this Amendment by SFX and Acquisition Sub and the consummation by
SFX and Acquisition Sub of the Transactions have been duly and validly
authorized by all necessary corporate action, and no other corporate
proceedings on the part of SFX or Acquisition Sub are necessary to authorize
this Amendment or to consummate the Transactions (other than, with respect to
the issuance of SFX Class A Common Stock pursuant to the Merger, the applicable
rules and regulations of the Nasdaq Stock Market, and with respect to the
Merger, the filing of an appropriate Certificate of Merger with the Secretary
as required by Delaware Law). This Amendment has been duly and validly executed
and delivered by SFX and Acquisition Sub and, assuming the due authorization,
execution and delivery of this Amendment by Marquee, constitutes a legal, valid
and binding obligation of each of SFX and Acquisition Sub enforceable against
each of SFX and Acquisition Sub in accordance with its terms.
8. Except to the extent expressly set forth in this Amendment
No. 4 to Agreement and Plan of Merger, no terms and conditions of the Merger
Agreement are amended or modified hereby, and all such terms and conditions
shall remain in full force and effect.
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IN WITNESS WHEREOF, SFX, Acquisition Sub and Marquee have
caused this Amendment No. 4 to Agreement and Plan of Merger to be signed by
their respective officers thereunto duly authorized, all as of the date first
written above.
SFX ENTERTAINMENT, INC.
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Xxxxxx X. Xxxxx
Executive Vice President and Secretary
SFX ACQUISITION CORP.
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Xxxxxx X. Xxxxx
Executive Vice President and Secretary
THE MARQUEE GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxxxx
President and Chief Executive Officer
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