AMENDMENT NO. 2 TO REPURCHASE AGREEMENT
Exhibit 2.3
AMENDMENT NO. 2 TO REPURCHASE AGREEMENT
THIS AMENDMENT NO. 2 (this “Amendment”), dated September 27, 2007, to the REPURCHASE
AGREEMENT (the “Agreement”), dated as of June 1, 2007 and amended by Amendment No. 1 to
Repurchase Agreement, dated as of June 18, 2007, is by and among, FX LUXURY REALTY, LLC, a Delaware
limited liability company (the “Company”), CKX, Inc., a Delaware corporation
(“CKX”), Flag Luxury Properties, LLC, a Delaware limited liability company
(“Flag”), FX Real Estate and Entertainment Inc., a Delaware corporation (“FXREE”),
Xxxxxx F.X. Sillerman (“Sillerman”), Xxxxx Torino (“Torino”), Xxxx X. Xxxxxxx
(“Xxxxxxx” and together with Flag (but subject to Section 4(d)(iii) of the Agreement),
Sillerman and Torino, collectively, the “Flag Parties”). Reference is made to that certain
Membership Interest Purchase Agreement (the “Purchase Agreement”), dated as of June 1, 2007
and amended by Amendments Nos. 1 and 2 to Membership Interest Purchase Agreement, dated as of June
18, 2007 and September 27, 2007, respectively, by and among the Company, CKX, and Flag.
Capitalized terms used herein, but not defined herein, shall have the meanings ascribed to them in
the Purchase Agreement.
WHEREAS, CKX, Flag and the Company previously entered into Amendment No. 1, dated as of June
18, 2007, to the Purchase Agreement (“Amendment No. 1”) and, pursuant to Amendment No. 1
(i) CKX formed NEWCO Inc. (which is now named FX Real Estate and Entertainment Inc. and is herein
referred to as “FXREE”) and, in connection therewith, contributed to the capital of FXREE
an aggregate 15.5% Membership Interest in the Company; (ii) CKX, as the sole stockholder of FXREE
as of the time of its formation, transferred and assigned all of the equity interests in FXREE to
Xxxxxxx X. Xxxxxxx, as Trustee of the CKX FXLR Stockholder Distribution Trust II, a conventional
trust formed pursuant to the CKX FXLR Stockholder Distribution Trust II Agreement dated the date
hereof (the “Conventional Trust”); and (iii) CKX transferred and assigned an aggregate 9.5%
Membership Interest in the Company to Xxxxxxx X. Xxxxxxx, as Trustee of the CKX FXLR Stockholder
Distribution Trust I, a grantor trust formed pursuant to the CKX FXLR Stockholder Distribution
Trust I Agreement dated the date hereof (the “Grantor Trust”); and
WHEREAS, pursuant to the Purchase Agreement, CKX, Flag and the Grantor Trust have effected the
Reorganization and, in connection therewith and in exchange for shares of common stock of FXREE,
CKX, Flag and the Grantor Trust contributed to FXREE Membership Interests constituting 25%, 50% and
9.5%, respectively, of the outstanding Membership Interest in the Company; and
WHEREAS, following the Reorganization, FXREE became the sole owner of all of the interests in
the Company (except for the Flag Priority Interest), and each of CKX, Flag and the Grantor Trust
were issued shares of common stock of FXREE in such amounts as resulted in the outstanding equity
of FXREE being owned 25% by CKX, 50% by Flag, and 25% in the aggregate by the Grantor Trust and the
Conventional Trust together; and
WHEREAS, pursuant to that certain Stock Purchase Agreement (the “Stock Purchase
Agreement”), dated September 26, 2007, by and among FXREE, CKX and Flag, CKX purchased
additional shares of common stock of FXREE representing a .742% equity interest
therein (after giving effect to the transactions contemplated in such Stock Purchase Agreement);
and
WHEREAS, as of the date hereof, CKX shall transfer and assign shares of common stock of FXREE
representing an aggregate 23.50% equity interest in FXREE to Xxxxxxx X. Xxxxxxx, as Trustee of the
CKX FXLR Stockholder Distribution Trust III, a conventional trust formed pursuant to and in
accordance with the CKX FXLR Stockholder Distribution Trust III Agreement (“Trust 3” and
such transfer and assignment is referred to herein as the “First Transfer”); and
WHEREAS, following the date hereof, and in no event later than concurrent with the Stockholder
Distribution, CKX shall transfer and assign to or for the benefit of CKX stockholders of record on
the record date to be determined by CKX for purposes of the of Stockholder Distribution shares of
common stock of FXREE representing an aggregate 2% equity interest in FXREE (the “Second
Transfer”); and
WHEREAS, it is contemplated that as of the date hereof and following the Initial Transfer the
outstanding equity of FXREE shall be owned 23.50% by Trust 3, 49.75% by Flag, 2% by CKX and 24.75%
in the aggregate by the Grantor Trust and the Conventional Trust together; and
WHEREAS, it is contemplated that following the Second Transfer the outstanding equity of FXREE
shall be owned 25.50% in the aggregate by Trust 3 and certain transferee(s) in connection with the
Second Transfer, 49.75% by Flag, and 24.75% in the aggregate by the Grantor Trust and the
Conventional Trust together; and
WHEREAS, the parties hereto desire to enter into this Amendment to permit the First Transfer
and Second Transfer.
NOW, THEREFORE, in consideration of these premises and the mutual covenants and agreements set
forth herein, the parties hereto agree as follows:
1. NEWCO Inc. All references in the Agreement to NEWCO Inc. or NEWCO shall hereafter
be references to FXREE, as applicable.
2. Section 2(a) of the Agreement. Section 2(a) of the Agreement is amended and
restated in its entirety as follows:
(a) In the event that no Termination Event (as defined below) shall have occurred prior to the
second anniversary of the date upon which the Stockholder Distribution occurs (the “Anniversary
Date”), then each of the Flag Parties shall offer, and FXREE shall purchase (the
“Repurchase”), on a pro rata basis based on the Flag Parties’ respective ownership
percentages, an aggregate number of Interests or shares of common stock of FXREE (the “FXREE
Stock”), as the case may be, for an amount equal to $0.01 per share, such that, following such
repurchase, the aggregate value of the Interests acquired pursuant to the Purchase Agreement or
resulting FXREE Stock, as the case may be (the “Purchased Securities”), shall not be less
than $100,000,000 (the “Fair Market Value”), based on the average closing price per share
of such FXREE Stock for the 30-day period prior to the Anniversary
Date or if FXREE Stock is not publicly traded, the fair market value of such Purchased Securities as determined in writing
(the
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“Appraisal Report”) by a nationally recognized independent appraisal firm to be
selected by the parties to this Agreement (the “Appraiser”); provided,
however, that in the event that the proposed transaction between 19X Acquisition Corp., a
Delaware corporation (“19X”), and CKX, whereby 19X shall merge with and into CKX, with CKX
being the surviving corporation in the merger (the “Merger”), shall become effective (or
any similar transaction shall become effective), then (i) the Fair Market Value for all purposes of
this Agreement shall be reduced to $50,000,000; and (ii) the Purchased Securities shall include
only the Interests acquired pursuant to the Purchase Agreement or resulting FXREE Stock, as the
case may be, that are the subject of the Stockholder Distribution. Notwithstanding the foregoing,
each of the Flag Parties shall have the option, in their sole and absolute discretion, to
contribute cash to FXREE in lieu of redeeming FXREE Stock as set forth above.
3. Section 13 of the Agreement. Section 13 of the Agreement is amended and restated
in its entirety as follows:
“13. Successors and Assigns; Third Party Beneficiaries. This Agreement
shall inure to the benefit of, and be binding upon, the successors and assigns of
the parties hereto. Each of Trust 3, the Conventional Trust, the Grantor Trust and
the holders of shares of FLXRE stock who are entitled to or received such stock as a
distribution or dividend from CKX (or from Trust 3, the Conventional Trust or the
Grantor Trust pursuant to the terms thereof) is intended as a third party
beneficiary of this Agreement; provided that such benefit shall be limited
solely to such holder’s right to (i) seek and enforce a remedy of specific
performance to compel FXREE and the board of directors of FXREE to enforce and
perform the provisions of this Agreement in accordance with the terms hereof or (ii)
in the event that such remedy of specific performance is determined by a court of
competent jurisdiction to be unavailable or is contested by the board of directors
of FXREE, then seek monetary damages from FXREE.”
4. Entire Agreement. This Amendment, the Agreement, the Exhibits and Schedules to the
Agreement constitute the entire agreement among the parties relating to the subject matter hereof
and supersede any and all prior agreements or understandings with respect to the subject matter
hereof.
5. No Other Amendments or Modifications. Except as expressly provided in this
Amendment, the Agreement shall remain unmodified and in full force and effect in accordance with
its terms.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment effective as of the date
first above written.
| FX LUXURY REALTY, LLC |
||||
| /s/ Xxxx X. Xxxxxxx | ||||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Chairman and Chief Executive Officer | |||
| CKX, INC. |
||||
| /s/ Xxxxxx X. Xxxxxx | ||||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| FLAG LUXURY PROPERTIES, LLC |
||||
| /s/ Xxxx X. Xxxxxxx | ||||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Chairman and Chief Executive Officer | |||
| FX REAL ESTATE AND ENTERTAINMENT INC. |
||||
| /s/ Xxxx X. Xxxxxxx | ||||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | President | |||
| /s/ Xxxxxx F.X. Xxxxxxxxx | ||||
| Xxxxxx F.X. Sillerman | ||||
| /s/ Xxxxx Torino | ||||
| Xxxxx Torino | ||||
| /s/ Xxxx X. Xxxxxxx | ||||
| Xxxx X. Xxxxxxx | ||||
