SECOND AMENDMENT TO MASTER CONTRIBUTION AGREEMENT
Exhibit
2.3
SECOND
AMENDMENT TO
This
Second Amendment to the Master Contribution Agreement (this “Amendment”)
is
entered into as of April 26, 2006 by and among Genius Products, Inc., a Delaware
corporation (“Genius”),
The
Xxxxxxxxx Company LLC, a Delaware limited liability company (“TWC”),
The
Xxxxxxxxx Company Holdings LLC, a Delaware limited liability company
(“TWC
Holdings”),
and
The Xxxxxxxxx Company Funding LLC, a Delaware limited liability company
(“TWC
Funding”),
and
amends that certain Master Contribution Agreement entered into by and among
the
parties dated December 5, 2005 (as amended, the “Agreement”).
Capitalized terms and matters of construction deemed or established in the
Agreement shall be applied in this Amendment as defined or established in the
Agreement.
RECITAL
WHEREAS,
as of the date hereof, all of the membership interests in TWC Funding are held
by TWC Holdings and W-G Holding Corp., a Delaware corporation and a wholly
owned
direct subsidiary of TWC Holdings (“W-G Holding”);
WHEREAS,
the parties desire to amend certain portions of the Agreement to provide that
TWC Funding shall become the “Distributor” from and after the Closing of the
transactions contemplated by the Agreement.
AGREEMENT
In
consideration of the foregoing and the representations, warranties, covenants
and agreements contained in this Amendment and the Agreement, and intending
to
be legally bound hereby, the parties hereby agrees as follows:
1. The
Agreement is amended to add a new Section 1.6 as follows:
1.6
Contribution
to TWC Funding as Distributor.
Notwithstanding anything to the contrary contained herein or in the Agreement,
but subject to TWC’s right to make the New Distributor Election pursuant to
Section 1.5 of the Agreement, prior to the Closing, TWC shall enter into the
Video Distribution Agreement with TWC Funding. At the Closing, Genius shall
make
the contributions described in Section 1.1 of the Agreement to TWC Funding,
and,
following the Closing, TWC Funding shall operate as the “Distributor,” and
ownership of TWC Funding will be as provided in Section 1.3 of the Agreement,
provided,
that,
(a) TWC
Holdings will own Class W Units representing a sixty-nine percent (69%) interest
in TWC Funding as of Closing, and (b) W-G Holding will own Class W Units
representing a one percent (1%) interest in TWC Funding as of Closing. Such
changes shall be made to the Agreement as the context shall require (and the
parties will cooperate to take such actions as are necessary to implement such
changes) in order to implement the transactions contemplated by this Section
1.6.
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2. Definition
of Distributor.
The
term “Distributor” as defined in the Agreement, including without limitation all
exhibits thereto, shall refer to and mean TWC Funding for all purposes thereof,
and shall not be deemed to mean or include TWC Holdings in any respect. All
representations, warranties, indemnities, terms and conditions applicable to
TWC
Holdings as “Distributor” prior to this Amendment shall instead be applicable to
TWC Funding as “Distributor,” including but not limited to the provisions of
Section 1.2 of the Agreement.
3. Consent
to Assignment.
In
connection with the transactions contemplated by Section 1.6 of this Amendment,
each of the parties hereto hereby consent to TWC Funding’s transfer and
assignment of the Agreement (including but not limited to this Amendment and
all
prior amendments to the Agreement), and all of its rights and obligations
arising thereunder, to TWC Holdings, for all purposes for which such consent
may
be required under the Agreement.
4. Effect
of Amendment.
Except
as expressly provided in this Amendment, the Agreement shall remain unchanged
and shall continue in full force and effect.
5. Counterparts.
This
Amendment may be signed by the parties in counterparts, which together shall
constitute on and the same agreement among the parties.
[Signature
pages to follow]
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IN
WITNESS WHEREOF, each of the parties has caused this Second Amendment to the
Master Contribution Agreement to be executed on its behalf as of the date first
written above.
| GENIUS PRODUCTS, INC. | THE XXXXXXXXX COMPANY LLC | ||
| By: | /s/ Xxxxxx Xxxxxxxxxx | By: | /s/ Xxxxx Xxxxxx |
| Name: |
Xxxxxx Xxxxxxxxxx |
Name: |
Xxxxx Xxxxxx |
| Title: | Chief Executive Officer | Title: | Executive Vice President and CFO |
|
THE XXXXXXXXX COMPANY
HOLDINGS LLC
|
THE XXXXXXXXX COMPANY FUNDING LLC | ||
| By: | /s/ Xxxxx Xxxxxx | By: | /s/ Xxxxx Xxxxxx |
| Name: |
Xxxxx Xxxxxx |
Name: |
Xxxxx Xxxxxx |
| Title: | Executive Vice President and CFO | Title: | Executive Vice President and CFO |
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