Exhibit 2.1
AMENDMENT NO. 4 TO
AGREEMENT AND PLAN OF MERGER
This Amendment No. 4 to the
Agreement and Plan of Merger (this “ Amendment
No. 4 ”) is made and entered into as of this 27th
day of May, 2008 (the “ Effective Date ”), 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,
dated as of June 1, 2007, as amended on August 1, 2007,
September 27, 2007 and January 23, 2008 (as amended, the
“ Merger Agreement ”);
B. The parties hereto wish to
make certain further amendments to the Merger Agreement on the
terms and conditions set forth below;
C. The Special Committee
unanimously has recommended that the Board of Directors of the
Company approve and adopt this Amendment No. 4; and
D. The Board of Directors of the
Company (except for directors affiliated with Parent or Merger Sub
who abstained) has approved and adopted this Amendment
No. 4.
The
recitals set forth in this Amendment No. 4 shall be
incorporated into and shall form part of the Merger Agreement, as
amended.
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 definitions
of “Amendment Date”, “Exclusivity Period Start
Date”, “Marketing Period”, “Material
Adverse Effect on the Company”, “Outside Date”
and “Requisite Stockholder Vote” in their entirety and
replacing them with the following:
““
Amendment Date ” means the Effective Date of Amendment
No. 4 to this Agreement.
“
Exclusivity Period Start Date ” means the earlier of
(i) July 26, 2008, or (ii) the date that is
15 days prior to the scheduled date of the Company Stockholder
Meeting as set forth in the definitive Company Proxy Statement for
such meeting that is mailed to stockholders of the Company,
provided that if the date 15 days prior to the
scheduled Company Stockholder Meeting is earlier than July 11,
2008, then the Exclusivity Period Start Date shall be July 11,
2008, and provided further that the Company
Stockholder Meeting shall not take place prior to July 11,
2008.
“
Marketing Period ” shall mean the first period of 30
consecutive days after the date hereof (but excluding the period
from August 22, 2008 through and including September 4,
2008) throughout which (a) Parent shall have the Required
Financial Information that the Company is required to provide to
Parent pursuant to Section 6.4(b), and (b) the conditions
set forth in Section 7.1 shall be satisfied and nothing has
occurred and no condition exists that would cause any of the
conditions set forth in Section 7.2 or Section 7.3 to
fail to be satisfied assuming the Closing were to be scheduled for
any time during such 30 consecutive day period, provided ,
that (A) Parent shall use commercially reasonable efforts to cause
the Marketing Period to end as promptly as reasonably practicable
after the Requisite Stockholder Vote; (B) if the financial
statements included in the Required Financial Information that is
available to Parent on the first day of such 30-day period would
not be sufficiently current on any day during such 30-day Period to
permit (i) a registration statement using such financial statements
to be declared effective by the SEC on the last day of such 30-day
period, or (ii) the Company’s independent accounting
firm to issue a customary comfort letter to Parent (in accordance
with its normal practices and procedures) on the last day of the
30-day period, then a new 30-day period shall commence upon Parent
receiving updated Required Financial Information that would be
sufficiently current to permit the actions described in clauses
(i) and (ii) above on the last day of such 30-day period;
and (C) the Marketing Period shall not be deemed to have
commenced if, prior to the completion of the Marketing Period, any
applicable auditor shall have withdrawn its audit opinion with
respect to any financial statements contained in the Company SEC
Reports or has indicated to the Company in writing that any such
opinion may not be relied upon.
“
Material Adverse Effect on the Company ” means any
fact, change, circumstance, development, event, effect or
occurrence that has had or would reasonably be expected to have a
materially adverse effect on the business, financial condition or
results of operations of the Company and its Subsidiaries, taken as
a whole; provided, however, that the following shall not be deemed
to be a Material Adverse Effect on the Company: (a) any fact,
change, circumstance, development, event, effect or occurrence
(i) generally relating to the U.S. or global economy or
securities, credit or financial markets, which does not have a
materially disproportionate effect on the Company and its
Subsidiaries, taken as a whole (relative to most industry
participants), (ii) caused by or resulting from the
announcement of this Agreement or the transactions contemplated
hereby, including (x) the loss of any key employee and
(y) any fees or expenses incurred in connection with the
transactions contemplated by this Agreement, (iii) caused by
or resulting from the identity of the Parent, Merger Sub or any of
their respective Affiliates as the acquiror of the Company, (iv)
caused by or resulting from any action required or contemplated in
this Agreement, (v) relating to the industries in which the
Company and
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its
Subsidiaries operate, which does not have a materially
disproportionate effect on the Company and its Subsidiaries, taken
as a whole (relative to most industry participants), (vi) relating
to changes in any Laws or applicable accounting regulations or
principles after the date hereof, or (vii) caused by or
resulting from any action of, or omission by, any one or more
members of the Executive Management Team or by any other Person at
the direction of any such member or members, or (b) any
failure to meet internal or published projections, forecasts or
revenue or earnings predictions for any period (provided that the
underlying causes of such failure shall be considered in
determining whether there is a Material Adverse Effect on the
Company).
“
Outside Date ” means October 31, 2008.
“Requisite Stockholder Vote ” means the
affirmative vote to adopt this Agreement and approve the Merger by
the holders of not less than 73% of the issued and outstanding
shares of Common Stock, Series B Preferred Stock and
Series C Preferred Stock, voting as a single class (with (x)
each share of Series B Preferred Stock being entitled to that
number of votes equal to the largest number of whole shares of
Common Stock into which such shares could be converted and
(y) each share of Series C Preferred Stock being entitled
to one vote).”
3. Amendment to
Section 2. 2(c) of the Merger Agreement
. Section 2.2(c) of the Merger Agreement is hereby
amended by deleting such Section in its entirety and replacing it
with the following:
“Each share of Common Stock
issued and outstanding immediately prior to the Effective Time
(other than shares of Common Stock to be canceled pursuant to
Section 2.2(a) and Dissenting Shares (as hereinafter
defined)), automatically shall be canceled and converted into the
right to receive $12.00 in cash, without interest (the “
Merger Consideration ”), payable to the holder thereof
upon surrender of the stock certificate formerly representing such
share of Common Stock in the manner provided in Section 2.3.
Such shares of Common Stock (other than those canceled pursuant to
Section 2.2(a), together with such shares canceled pursuant to
Section 2.3(g) below), sometimes are referred to herein as the
“ Merger Shares ”.”
4. Amendment to
Section 4. 2(a) of the Merger Agreement
. Section 4.2(a) of the Merger Agreement is hereby
amended by deleting such Section in its entirety and replacing it
with the following:
“(a) The execution, delivery
and performance by the Company of this Agreement and the
consummation by the Company of the Merger and the other
transactions contemplated hereby have been duly and validly
authorized by the Board of Directors of the Company (including the
Special Committee) and, other than obtaining the Requisite
Stockholder Vote and the filing of the Certificate of Merger along
with any document in connection therewith in accordance with the
DGCL, no other corporate proceeding on the part of the Company is
necessary for the consummation by the Company of the Merger or the
other transactions contemplated hereby.”
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5. Amendment to
Section 4. 2(d) of the Merger Agreement
. Section 4.2(d) of the Merger Agreement is hereby
amended by deleting such Section in its entirety and replacing it
with the following:
“(d) Houlihan Lokey Howard
& Zukin Financial Advisors, Inc. (the “ Financial
Advisor ”) has delivered to the Special Committee and the
Board of the Directors of the Company its opinion dated
May 27, 2008, to the effect that, as of the date such opinion
was delivered, the consideration to be received in the Merger is
fair, from a financial point of view, to the holders of shares of
Common Stock other than the Voting Group (the “ Fairness
Opinion ”). As of the Amendment Date, the Company has
been authorized by the Financial Advisor to permit the inclusion in
full of the Fairness Opinion in the Company Proxy Statement. As of
the Amendment Date, the Fairness Opinion has not been withdrawn,
revoked or modified.”
6. Amendment to
Section 6.4 of the Merger Agreement . Section 6.4
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) Parent and Merger Sub shall
use all commercially reasonable efforts to obtain debt and equity
financing 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 ”).
(b) Prior to the Effective Time,
the Company and its Subsidiaries shall use their commercially
reasonable efforts, to provide and to cause their respective
officers, employees, representatives and advisors, including legal
and accounting advisors to provide, to Parent all cooperation
reasonably requested by Parent that is necessary, proper or
advisable in connection with the Financing (in each case, provided
that such requested cooperation does not unreasonably interfere
with the ongoing operations of the Company and its Subsidiaries)
including using commercially reasonable efforts with respect to
(i) participation in a reasonable number of meetings, drafting
sessions, presentations, road shows, due diligence sessions and
sessions with rating agencies, (ii) assisting with the preparation
of materials for rating agency presentations, offering documents,
business projections, private placement memoranda, bank information
memoranda, prospectuses and si
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