FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
Exhibit 2.3
FIRST AMENDMENT TO AGREEMENT
AND PLAN OF MERGER AND REORGANIZATION
AND PLAN OF MERGER AND REORGANIZATION
This FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “First
Amendment”) is entered into June 22, 2007, by and among DG FastChannel, Inc., a Delaware
corporation (the “Purchaser”), POINT.360, a California corporation (the “Company”),
and New 360, a California corporation and a wholly-owned subsidiary of the Company (the “PPB
Sub”), for the purpose of amending the Agreement and Plan of Merger and Reorganization, dated
as of April 16, 2007, by and among the Purchaser, the Company and the PPB Sub (the “Merger
Agreement”). All capitalized terms used herein and not defined herein shall have the meanings
assigned to such terms in the Merger Agreement.
WHEREAS, the parties hereto desire to amend certain provisions of the Merger Agreement as
provided herein;
NOW, THEREFORE, in consideration of the mutual covenants set forth herein, and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
SECTION 1. The Spin-Off and the Post-Spin-Off Contribution.
(a) The eighth recital to the Merger Agreement is deleted in its entirety and the following is
substituted therefor:
WHEREAS, immediately following the Contribution but prior to the consummation of the Offer,
the Company shall distribute (the “Spin-Off”) to its shareholders pro rata all of
the capital stock then outstanding of the PPB Sub, and immediately thereafter, the Purchaser
shall contribute (the “Post-Spin-Off Contribution”) to the PPB Sub all of the
Purchaser’s shares of the capital stock of the PPB Sub for no consideration;
(b) Section 6.13 of the Merger Agreement is amended by adding the following sentence at the
end thereof:
Immediately following the completion of the Spin-Off but prior to the consummation of the
Offer, the Purchaser shall consummate the Post-Spin-Off Contribution.
(c) A new Section 7.1(h) is added to the Merger Agreement to provide as follows:
Post-Spin-Off Contribution. The Purchaser shall have consummated the Post-Spin-Off
Contribution; provided, however, that this condition shall be deemed to have
been satisfied with respect to the obligation of the Purchaser to effect the Merger if the
Purchaser fails to consummate the Post-Spin-Off Contribution in violation of the terms of
this Agreement.
SECTION 2. Additional Term Defined Elsewhere.
(a) Section 9.6 of the Merger Agreement is amended by adding the following new entry:
Post-Spin-Off Contribution
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Recitals |
SECTION 3. Construction of the Merger Agreement
(a) The Merger Agreement shall be read together and shall have the same force and effect as if
the provisions of the Merger Agreement and this First Amendment were contained in one document.
Except as expressly amended by this First Amendment, the Merger Agreement shall remain in full
force and effect in accordance with its terms.
SECTION 4. Counterparts.
(a) This First Amendment may be executed manually or by facsimile by the parties hereto, in
any number of counterparts, each of which shall be considered one and the same agreement and shall
become effective when a counterpart hereof shall have been signed by each party and delivered to
the other party.
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IN WITNESS WHEREOF, the Purchaser, the Company and the PPB Sub have caused this First
Amendment to be signed by their respective officers thereunto duly authorized as of the date first
written above.
DG FASTCHANNEL, INC. |
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By: | /s/ Xxxxx X. Xxxxxxxx | |||
Name: | Xxxxx X. Xxxxxxxx | |||
Title: | Chairman and CEO | |||
POINT.360 |
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By: | /s/ Xxxx X. Steel | |||
Name: | Xxxx X. Steel | |||
Title: | Chief Financial Officer | |||
NEW 360 |
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By: | /s/ Xxxx X. Steel | |||
Name: | Xxxx X. Steel | |||
Title: | Chief Financial Officer | |||
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