EXHIBIT
10.1
AMENDMENT NO. 2 TO AGREEMENT AND
PLAN OF MERGER
AND INTERESTS PURCHASE
AGREEMENT
This Amendment (this “ Amendment
”) is entered into as of August 1, 2008, by and among
FORTISSIMO ACQUISITION CORP., a Delaware corporation (“
Parent ”); FAC ACQUISITION SUB CORP., a New York
corporation and a wholly-owned subsidiary of Parent (“
Merger Sub ”); PSYOP, INC., a New York corporation
(the “ Company ”); PSYOP SERVICES, LLC, dba
Blacklist (“ Blacklist ”); JUSTIN
BOOTH-CLIBBORN, HEJUNG MARIE HYON, JUSTIN LANE, KYLIE MATULICK,
EBEN MEARS, ROBERT TODD MUELLER, SAMUEL SELINGER, MARCO SPIER
AND CHRISTOPHER STAVES (individually, a “ Stockholder
” and collectively, the “ Stockholders ”);
and JUSTIN BOOTH-CLIBBORN (the “ Stockholders’
Representative ”) as agent and attorney-in-fact for each
Stockholder.
WHEREAS, the parties to this Amendment are
parties to the Agreement and Plan of Merger and Interests Purchase
Agreement, dated as of January 15, 2008, by and among Parent,
Merger Sub, the Company, Blacklist, the Stockholders and the
Stockholders’ Representative, as amended by Amendment No. 1
thereto dated as of May 12, 2008 (together, the “ Merger
Agreement ”);
WHEREAS, the parties to this Amendment wish to
make certain modifications to the Merger Agreement as set forth
herein;
NOW, THEREFORE, in consideration of the
premises, covenants and representations set forth herein, and for
other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereby agree to amend
the Merger Agreement as set forth below:
1.
Definitions
. Unless otherwise specified,
capitalized terms used and not otherwise defined in this Amendment
shall have the same meanings as set forth in the Merger
Agreement.
2.
Interpretation
. The rules of construction set
forth in Section 1.02 of the Merger Agreement shall apply
mutatis mutandis to this Amendment as if
set forth in full in this Section 2.
3.
Amendment to Section 1.01;
Definition of Combined Financial Statements . The definition of “Combined Financial
Statements” is hereby deleted from Section 1.01 of the Merger
Agreement.
4.
Amendment to Section 1.01;
Definition of Consolidated Financial Statements
. The definition of
“Consolidated Financial Statements” is hereby deleted
from Section 1.01 of the Merger Agreement.
5.
Amendment to Section 1.01;
Definition of Financial Statements. The following definition of “Financial
Statements” is hereby inserted immediately after the
definition of “Expenses” and immediately prior to the
definition of “GAAP” in Section 1.01 of the Merger
Agreement:
“Financial
Statements” has the meaning set forth in Section
3.07(a).
6.
Amendment to Section
2.13 . A new Section
2.13(d) is hereby added to the Merger Agreement, to read as
follows:
(d)
Notwithstanding anything to the
contrary in this Section 2.13 or elsewhere in this Agreement,
including Exhibit A hereto, Samuel Selinger shall not receive any
Contingent Consideration with respect to the Annual Contingent
Consideration Period ending December 31, 2010 and the Stock
Contingent Consideration and Cash Contingent Consideration that he
otherwise would be entitled to receive with respect to such Annual
Contingent Consideration Period shall be allocated among the other
Stockholders pro rata in accordance with their stock ownership
percentages set forth in Table D of Exhibit A, which allocation is
reflected in Tables B and C of Exhibit A with respect to such
Annual Contingent Consideration Period.
7.
Amendment to Section
3.07 . Section 3.07 of
the Merger Agreement is hereby replaced in its entirety with the
following:
(a)
The Company has delivered to the
Parent copies of (i) the audited consolidated and combined balance
sheet of the Company (including the Company Subsidiary) and
Blacklist at December 31, 2007, together with the related
statements of operations, stockholders’ equity and cash flows
for the year then ended and the notes thereto and (ii) the
unaudited consolidated and combined balance sheet of the Company
(including the Company Subsidiary) and Blacklist at March 31, 2008,
together with the related statements of operations,
stockholders’ equity and cash flows for the three months then
ended and the notes thereto (collectively, the “
Financial Statements ”). The Financial
Statements (x) were prepared in accordance with GAAP (except, with
respect to such thereof that are unaudited, for the absence of
notes thereto and for year-end adjustments) applied on a consistent
basis throughout the periods covered thereby; (y) present fairly
the financial position, results of operations and cash flows of the
Company (including the Company Subsidiary) and Blacklist as of such
dates and for the periods then ended; and (z) are correct and
complete in all material respects and can be reconciled with the
books of account and records of the Company (including the Company
Subsidiary) and Blacklist. Each of the Company (including the
Company Subsidiary) and Blacklist maintains and will continue to
maintain an adequate system of internal controls established and
administered in accordance with GAAP.
(b)
Except as and to the extent set
forth or reserved against on the audited balance sheet of the
Company at December 31, 2007, none of the Company, Blacklist or the
Company Subsidiary has any liabilities or obligations of any nature
(whether accrued, absolute, contingent or otherwise) that would be
required to be reflected on a balance sheet
