SECOND AMENDMENT TO AGREEMENT AND PLAN OF MERGER
Exhibit 2.1
SECOND AMENDMENT TO AGREEMENT AND PLAN OF MERGER
THIS SECOND AMENDMENT TO AGREEMENT AND PLAN OF MERGER (the “Amendment”), is dated as of March
24, 2009, by and among Nyx Acquisitions, Inc., a Delaware corporation (“Parent”), The
Conceived Group, Inc., a Delaware corporation and a wholly-owned subsidiary of Parent (“Merger
Sub”), and Image Entertainment, Inc., a Delaware corporation (the “Company”).
Capitalized terms used but not defined herein shall have the meanings ascribed to them in the
Merger Agreement (as defined below).
RECITALS
| A. | Parent, Merger Sub and the Company are party to that certain Agreement and Plan
of Merger, dated as of November 20, 2008, as amended by that certain First Amendment to
Agreement and Plan of Merger, dated as of February 27, 2009 (as amended, the
“Merger Agreement”). |
| B. | Parent and Merger Sub were not able to consummate the Closing contemplated by
the Merger Agreement on March 20, 2009. |
| C. | In exchange for the agreements and covenants of Parent and Merger Sub herein,
the Company is willing to extend the time for the Closing under the Merger Agreement as
provided in this Amendment in order to allow Parent and Merger Sub to have additional
time to arrange and obtain the Financing. |
| D. | Parent, Merger Sub and the Company desire to amend the Merger Agreement in the
manner more particularly described below. |
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements set
forth herein and for good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, Parent, Merger Sub and the Company have agreed to amend the Merger Agreement
as follows:
1.1 Certain Definitions. Section 1.01 of the Merger Agreement is hereby
amended and restated as follows:
1.1.1 The definition of “Additional Deposit” is hereby deleted in its entirety.
1.1.2 The following definitions shall be inserted into Section 1.01 in alphabetical
order:
“Fifth Deposit” shall have the meaning set forth in Section 3.09.
“Fourth Deposit” shall have the meaning set forth in Section 3.07(d).
“Partial Release Deadline” shall have the meaning set forth in Section
3.08.
“Partial Release of Deposit” shall have the meaning set forth in Section
3.08.
“Sixth Deposit” shall have the meaning set forth in Section 3.10.
1.1.3 The definition of “Business Interruption Fee” is hereby amended by deleting such
definition in its entirety and replacing it with the following:
“‘Business Interruption Fee’ means Two Million Five Hundred Thousand Dollars
($2,500,000); provided, however, that:
(a) upon the Partial Release of Deposit by Parent pursuant to Section 3.08, then the
Business Interruption Fee shall mean One Million Five Hundred Thousand Dollars ($1,500,000);
(b) if
Parent shall give written notice requesting the extension of the Scheduled Closing Date
pursuant to Section 3.09 hereof, then the Business Interruption Fee shall mean Three
Million Dollars ($3,000,000); and
(c) if
Parent shall give written notice requesting the extension of the Scheduled Closing Date
pursuant to Section 3.10 hereof, then the Business Interruption Fee shall mean Six Million
Dollars ($6,000,000).”
1.1.4 The definition of “Deposit” is hereby amended by deleting such definition in its
entirety and replacing it with the following:
“‘Deposit’ means (i) the sum of the Initial Deposit, the Second Deposit, the Third
Deposit, the Fourth Deposit and, if deposited pursuant to Section 3.09 and Section
3.10, respectively, the Fifth Deposit and Sixth Deposit, less the Partial Release of Deposit
released by Parent pursuant to Section 3.08”
1.2 The Merger. Section 2.01(b) of the Merger Agreement is hereby amended by
deleting such section in its entirety and replacing it with the following:
“Closing. The Closing shall take place at 8:00 a.m. local time on a date to be
specified by the parties hereto, which date shall be no later than April 6, 2009 (the
“Scheduled Closing Date”), at the offices of Manatt, Xxxxxx & Xxxxxxxx, LLP, 00000 Xxxx
Xxxxxxx Xxxx., Xxx Xxxxxxx, Xxxxxxxxxx 00000, unless another time, date or place is agreed to by
Parent and the Company. The Scheduled Closing Date may be extended pursuant to Section
3.09 and Section 3.10 below. The actual date on which the Closing occurs is referred
to in this Agreement as the “Closing Date.”
1.3 Deposit. Section 3.07 of the Merger Agreement is hereby amended by adding
the following new subsection (d), which shall be inserted at the end of such section:
“(d) by 5:00 p.m. local time on March 20, 2009, deposit the amount of Two Hundred Thousand
Dollars ($200,000) cash (the “Fourth Deposit”) to an account designated by
the Company, to be held in trust for the benefit of the Company, subject to the Trust
Instructions.”
1.4 Additional Deposit. Section 3.08 of the Merger Agreement is hereby
amended by deleting such section in its entirety and replacing it with the following:
“Partial Release of Deposit. In consideration for the Company entering into, and as
an inducement and condition to the willingness of the Company to enter into, this Agreement, Parent
shall authorize the release of One Million Dollars ($1,000,000) of those amounts held in trust for
the benefit of the Company, subject to the Trust Instructions, in accordance with the Trust
Instructions (the “Partial Release of Deposit”), by 5:00 p.m. local time on March 25, 2009
(the “Partial Release Deadline”). Parent hereby acknowledges that amounts paid to the
Company pursuant to the Partial Release of Deposit will not be paid to the Paying Agent pursuant to
the Trust Instructions, will not form part of the Merger Consideration or Option Consideration
payable to stockholders upon Closing, and are not refundable to Parent under any circumstance.”
1.5 Fifth Deposit. The Merger Agreement is hereby amended by adding a Section
3.09 which shall read as follows:
“Fifth Deposit. If Parent (i) by 5:00 p.m. local time on April 2, 2009 delivers
written notice to the Company requesting an extension to the Scheduled Closing Date, and (ii) by
5:00 p.m. local time on April 6, 2009, deposits an additional amount of One Million Five Hundred
Thousand Dollars ($1,500,000) in immediately available funds (the Fifth Deposit”) to an
account designated by the Company, to be held in trust for the benefit of the Company, subject to
the Trust Instructions, then the Scheduled Closing Date shall be extended to April 20, 2009.”
1.6 Sixth Deposit. The Merger Agreement is hereby amended by adding a Section
3.10 which shall read as follows:
“Sixth Deposit. If Parent (i) by 5:00 p.m. local time on April 16, 2009 delivers
written notice to the Company requesting an extension to the Scheduled Closing Date, and (ii) by
5:00 p.m. local time on April 20, 2009, deposits an additional amount of Three Million Dollars
($3,000,000) in immediately available funds (the “Sixth Deposit”) to an account designated
by the Company, to be held in trust for the benefit of the Company, subject to the Trust
Instructions, then the Scheduled Closing Date shall be extended to May 4, 2009.”
1.7 Termination. Section 9.01(e) of the Merger Agreement is hereby amended by
deleting such section in its entirety and replacing it with the following:
“(e) by the Company, if (i) Parent shall not have released the Partial Release of Deposit on
or prior to the Partial Release Deadline or (ii) the Merger shall not have been consummated on or
prior to the Scheduled Closing Date, other than as a result of the Company’s refusal to close in
violation of this Agreement.”
1.8 References to the Merger Agreement. Subject to Section 1.9 of this
Amendment, after giving effect to this Amendment, each reference in the Merger Agreement to
“Agreement,”
“hereof,” “hereunder” or words of like import referring to the Merger Agreement shall refer to
the Merger Agreement as amended by this Amendment, all references in the Company Disclosure Letter
to “the Agreement” shall refer to the Merger Agreement as amended by this Amendment, and all
references in the Trust Instructions shall refer to the Merger Agreement as amended by this
Amendment.
1.9 Date References. All references in the Merger Agreement and the Company Disclosure
Letter to “the date hereof,” “the date of this Agreement” or words of like import shall remain as
references to November 20, 2008.
1.10 General Provisions. The provisions of Article VIII (General Provisions) of the
Merger Agreement shall apply mutatis mutandis to this Amendment, and to the Merger Agreement as
modified by this Amendment, taken together as a single agreement, reflecting the terms therein as
modified hereby.
1.11 No Further Amendment. Except as expressly amended hereby, all the terms,
conditions, representations, warranties, covenants and provisions of the Merger Agreement and the
Company Disclosure Letter shall remain in full force and effect in accordance with their respective
terms.
[signature page follows]
IN WITNESS WHEREOF, Parent, Merger Sub and the Company have caused this Agreement to be signed
by their respective officers thereunto duly authorized as of the date first written above.
| NYX ACQUISITIONS, INC. |
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| By: | /s/ XXX X. XXXXX | |||
| Name: | Xxx X. Xxxxx | |||
| Title: | Chief Executive Officer | |||
| THE CONCEIVED GROUP, INC. |
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| By: | /s/ XXX X. XXXXX | |||
| Name: | Xxx X. Xxxxx | |||
| Title: | Chief Executive Officer | |||
| IMAGE ENTERTAINMENT, INC. |
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| By: | /s/ XXXXXX X. XXXXXXXXX | |||
| Name: | Xxxxxx X. Xxxxxxxxx | |||
| Title: | Chairman of the Board | |||
