AMENDMENT NO. 3 TO MERGER AGREEMENT
EXHIBIT
2.1
AMENDMENT
NO. 3 TO
This
Amendment No. 3 (this “Amendment”), dated as of June 19, 2009, to the Merger
Agreement (as defined below) is made by and among Alyst Acquisition Corp., a
Delaware corporation (including its successors and assigns, the “Parent”), China
Networks Media Limited, a British Virgin Islands corporation (including its
successors and assigns, the “Company”), MediaInv
Ltd., a British Virgin Islands Business Company and Xxxxx Xxxxxxx (each a “Principal
Shareholder,” and together with their successors and assigns from the
date hereof until the Business Combination Effective time (as defined below),
collectively the “Principal
Shareholders”) and each of the other signatories hereto. Any capitalized
term not defined herein shall have the meaning for such term specified in the
Merger Agreement.
WHEREAS, Parent, the Company,
the Principal Shareholders and the other signatories hereto entered into an
Agreement and Plan of Merger dated as of August 13, 2008; and
WHEREAS, Parent, the Company,
the Principal Shareholders and the other signatories hereto entered into
Amendment No. 1 to such Agreement and Plan of Merger dated as of January 28,
2009 and Amendment No. 2 to such Agreement and Plan of Merger dated as of
February, 2009 (as so amended, the “Merger Agreement”); and
WHEREAS, Parent, the Company, the Principal
Shareholders and each of the other signatories to the Merger Agreement desire to
effect certain transactions to obtain a favorable vote of the stockholders of
Parent approving the Merger Agreement, including entering into agreements that
would provide for the repurchase of Surviving Corporation Shares by the
Surviving Corporation or its subsidiaries or the cancellation of Surviving
Corporation Shares purchased and held by the Company, after or in connection
with the Closing (such repurchased or cancelled shares being referred to herein
as “Repurchased
Shares”);
WHEREAS, it is anticipated that certain
holders of common stock of Parent will elect to convert their shares to cash
pursuant to their conversion rights under Parent’s certificate of incorporation
in connection with the closing of the Merger Agreement (such shares being
referred to herein as “Converted
Shares”);
WHEREAS, Parent, the Company, the Principal
Shareholders and each of the other signatories to the Merger Agreement desire to
modify the terms of the Merger Agreement to (x) reduce the cash consideration
paid to the holders of Company Shares and (y) provide that the amount of
Surviving Corporation Shares to be received by holders of Company Shares shall
be increased by one share for each Repurchased Share repurchased by the
Surviving Corporation or its subsidiaries after or in connection with the
Closing and each Converted Share converted into cash in connection with the
Closing;
NOW THEREFORE, in consideration of the foregoing
and the representations, warranties, covenants and agreements herein contained
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto hereby agree as follows:
1. Section
2.7(a) of the Merger Agreement is hereby amended by deleting the existing
Section 2.7(a) in its entirety and replacing it with the following:
“(a) Conversion
of Company Securities. At the Business Combination Effective
Time, (i) each Company Share issued and outstanding immediately prior to the
Business Combination Effective Time (other than those described in Section 2.13 below)
shall be converted automatically into (A) a number of Surviving Corporation
Shares determined as follows: (x) 1,900,000 plus the amount of Converted Shares
divided by (y) the
total number of Company Shares issued and outstanding immediately prior to the
Business Combination Effective Time, plus (B) the
additional consideration described in Sections 2.7(f), (g), (h), and (j) (the
“CS Per Share
Amount”), and (ii) each Preferred Share issued and outstanding
immediately prior to the Business Combination Effective Time shall be converted
automatically into (A) a number of Surviving Corporation Shares determined as
follows: (x) the number of Preferred Shares issued in the Financing to the
bridge investors divided
by (y) the total number of Preferred Shares issued and outstanding
immediately prior to the Business Combination Effective Time (collectively, the
“Business Combination
Conversion Ratio”), subject to any adjustments made pursuant to Section
2.7(c) plus (B)
the right to receive a cash amount equal to $7.143, plus (C) the
additional consideration described in Section 2.7(f) and (h), (the “PS Per Share
Amount”). At the Business Combination Effective Time, all
Company Securities shall cease to be outstanding and shall automatically be
canceled and retired and shall cease to exist. The holders of
certificates previously evidencing the Company Securities outstanding
immediately prior to the Business Combination Effective Time shall cease to have
any rights with respect to such Company Securities, except as provided herein or
by law. Each certificate previously evidencing Company Securities
shall be exchanged for such number of Surviving Corporation Shares calculated by
multiplying the applicable Business Combination Conversion Ratio by the number
of Company Securities previously evidenced by the canceled certificates and cash
in an amount equal to the CS Per Share Amount or the PS Per Share Amount, as the
case may be, upon the surrender of such certificate in accordance with the terms
hereof.”
2. Section
2.7 of the Merger Agreement is hereby amended by adding a new subsection (j)
providing as follows:
“(j) Adjustment
for Repurchased Shares. In the event that after or in
connection with the Closing, (i) the Surviving Corporation repurchases any
Surviving Corporation Shares pursuant to any agreement entered into in
connection with the Special Meeting, and/or (ii) the Surviving Corporation and
the Company agree to cancel any Surviving Corporation Shares held by the
Company, the Surviving Corporation shall issue to each Closing Holder an
additional number of Surviving Corporation Shares equal to the product of (i)
the quotient of (x) the sum of the number of Repurchased Shares repurchased by
the Surviving Corporation or its subsidiaries plus the number of Repurchased
Shares held by the Company and cancelled by agreement between the Surviving
Corporation and the Company, divided by (y) the total number of Company Shares
issued and outstanding immediately prior to the Business Combination Effective
Time; multiplied by (ii) the number of Company Shares held by such Closing
Holder at the Business Combination Effective Time. Such additional
Surviving Corporation Shares shall be issued within five Business Days of the
completion of any repurchase.”
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3. All
other provisions of the Merger Agreement shall remain unaffected by the terms
hereof.
4. This
Amendment may be signed in any number of counterparts, each of which shall be an
original and all of which shall be deemed to be one and the same instrument,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. A facsimile signature shall be deemed to be an original
signature for purposes of this Amendment.
5. This
Amendment is intended to be in full compliance with the requirements for an
Amendment to the Merger Agreement as required by Section 11.4 of the Merger
Agreement, and every defect in fulfilling such requirements for an effective
amendment to the Merger Agreement is hereby ratified, intentionally waived and
relinquished by all parties hereto.
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IN WITNESS WHEREOF, the
parties hereto have duly executed this Amendment as of the day and year first
above written.
| ALYST ACQUISITION CORP. | |||
|
|
By:
|
/s/ Xxxxxxx X. Xxxxxx | |
| Name: Xxxxxxx X. Xxxxxx | |||
| Title: Chief Financial Officer | |||
|
CHINA NETWORKS HOLDINGS
INTERNATIONAL
LTD.
|
|||
|
|
By:
|
/s/ Xxxxxxx X. Xxxxxx | |
| Name: Xxxxxxx X. Xxxxxx | |||
| Title: Sole Director | |||
|
CHINA NETWORKS MERGER CO.
LTD.
|
|||
|
|
By:
|
/s/ Xxxxxxx X. Xxxxxx | |
| Name: Xxxxxxx X. Xxxxxx | |||
| Title: Sole Director | |||
4
|
CHINA
NETWORKS MEDIA, LTD.
|
|||
|
|
By:
|
/s/ Li Shuangqing | |
| Name: Li Shuangqing | |||
| Title: CEO and Co-Chairman | |||
|
MEDIAINV
LTD.
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|||
|
|
By:
|
/s/ C.C.N. Ng | |
| Name: C.C.N. Ng | |||
| Title: Director | |||
|
XXXXX
XXXXXXX
|
|||
|
|
/s/ Xxxxx Xxxxxxx | ||
| Name: Xxxxx Xxxxxxx | |||
|
LI
SHUANGQING
|
|||
|
|
/s/ Li Shuangqing | ||
| Name: Li Shuangqing | |||
