AMENDMENT TO AGREEMENT AND PLAN OF MERGER
Exhibit 2.1
AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER
This Amendment to the Agreement and Plan of Merger (this “Amendment”) is made and entered into
as of this 1st day of August, 2007, by and among CKX, Inc., a Delaware corporation (the “Company”),
19X, Inc., a Delaware corporation (“Parent”), and 19X Acquisition Corp., a Delaware corporation and
a wholly owned subsidiary of Parent (“Merger Sub”).
RECITALS
A. The Company, Parent and Merger Sub entered into that certain Agreement and Plan of Merger
(the “Merger Agreement”), dated as of June 1, 2007;
B. Pursuant to Section 6.4 of the Merger Agreement, Parent and Merger Sub were required to
deliver to the Company within 60 days of the date of the Merger Agreement Financing Letters,
reflecting debt and equity commitments from financial institutions and equity investors sufficient
for the Financing of the Merger;
C. The parties desire to extend the date for the delivery of such Financing Letters and to
amend certain other terms of the Merger Agreement;
C. Pursuant to Section 9.3 of the Merger Agreement, the parties hereto wish to make such
amendments to the Merger Agreement on the terms and conditions set forth below;
NOW THEREFORE, in consideration of the mutual promises and agreements hereinafter set forth
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Definitions. All capitalized terms used herein, and not expressly defined herein,
shall have the respective meanings given to such terms in the Merger Agreement.
2. Amendment to Certain Section 1.1 Definitions. Section 1.1 of the Merger Agreement
is hereby amended by deleting the definition of “Outside Date” in its entirety and replacing it
with the following:
““Outside Date” means April 25, 2008; provided that the Outside Date shall be extended
to June 24, 2008 in the event that as of April 25, 2008 all the conditions to closing set forth in
Article VII hereof shall have been satisfied or waived other than the condition set forth in
Section 7.2(g).”
3. Amendment to Sections 6.4(a) of the Merger Agreement. Section 6.4(a) of the Merger
Agreement is hereby amended by deleting such Section in its entirety and replacing it with the
following:
“SECTION 6.4 FINANCING
(a) Within 120 days after the date hereof, Parent and Merger Sub shall deliver to the Company
true and complete copies of (i) a fully executed commitment letter (the “Debt Commitment Letter”),
except for any fee letters, pursuant to which the financial institutions party to such Debt
Commitment Letter shall have committed upon the terms and subject to the conditions set forth
therein, to provide, or cause to be provided, debt financing in the amount set forth therein in
connection with the Merger and (ii) a fully executed commitment letter (the “Equity Commitment
Letter”, and together with the Debt Commitment Letter, the “Financing Letters”), pursuant to which
the investors party thereto shall have committed, upon the terms and subject to the conditions set
forth therein, to provide, or cause to be provided, equity financing in the aggregate amount set
forth therein in connection with the Merger. The Financing Letters shall reflect debt and equity
commitments from such equity investors and financial institutions, which together with any equity
to be issued in connection with the Contribution and Exchange Agreements or to be issued in
exchange for securities of Parent, shall be sufficient to pay the full Merger Consideration (and
all other cash amounts payable pursuant hereto), and all of the related fees and expenses payable
by Parent or Merger Sub (or, after the Closing, the Surviving Corporation) in connection with the
Merger (the funds necessary to pay the foregoing amounts, the “Financing”). Notwithstanding
anything in this Agreement to the contrary, one or more Financing Letters may be superseded at the
option of Parent and Merger Sub prior to the Effective Time by instruments (the “New Financing
Letters”) which replace existing Financing Letters and/or contemplate co-investment by or financing
from one or more other or additional parties; provided that the terms of the New Financing
Letters shall not (a) expand upon the conditions precedent to the Financing as set forth in the
Financing Letters in any respect that would make such conditions less likely to be satisfied, (b)
reasonably be expected to delay the Closing or (c) otherwise have an adverse impact on the Company
at any time that is prior to the Closing. In such event, the term “Financing Letters” as used
herein shall be deemed to include the Financing Letters that are not so superseded at the time in
question and the New Financing Letters to the extent then in effect.”
4. Effective Date. The amendments to the Merger Agreement set forth above
shall be
effective and binding on all parties as of July 31, 2007.
5. Effect of Amendment. Except as expressly set forth herein, the Merger Agreement
shall be and remain in full force and effect as originally written, and shall constitute the legal,
valid, binding and enforceable obligations of the parties thereto.
6. Couterparts; Effectiveness; Third Party Beneficiaries. This Amendment may be
executed by facsimile signatures and in any number of counterparts, each of which shall be deemed
to be an original, with the same effect as if the signatures thereto and hereto were upon one and
the same instrument. This Amendment shall become effective only when actually signed by each party
hereto and each such party has
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received counterparts hereof signed by all of the other parties hereto. No provision of this
Amendment is intended to or shall confer upon any Persons, other than the parties hereto, any
rights or remedies hereunder or with respect hereto.
7. Successors and Assigns. The provisions of this Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and assigns, provided
that no party may assign, delegate or otherwise transfer any of its rights or obligations under
this Amendment without the prior written consent of the other parties hereto. Any purported
assignment in violation of these provisions shall be null and void.
8. Further Assurances. The parties agree to take such futher action as reasonably
necessary to evidence and implement the amendments set forth herein.
9. Governing Law. This Amendment shall be governed by and construed in accordance
with the Laws of the State of Delaware, without giving effect to the conflicts or choice of Law
principles thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their
respective authorized officers (or other authorized signatory) as of the day and year first above
written.
CKX, INC. |
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By: | /s/ Xxxxxxx X. Xxxxxx | |||
Name: | Xxxxxxx X. Xxxxxx | |||
Title: | President | |||
19X, INC. |
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By: | /s/ Xxxxxx F.X. Sillerman | |||
Name: | Xxxxxx F.X. Sillerman | |||
Title: | President | |||
19X ACQUISITION CORP. |
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By: | /s/ Xxxxxx F.X. Sillerman | |||
Name: | Xxxxxx F.X. Sillerman | |||
Title: | President | |||
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