Exhibit 2.1
AMENDMENT NO. 2 TO
AGREEMENT AND PLAN OF MERGER
This Amendment No. 2 to the
Agreement and Plan of Merger (this “ Amendment
No. 2 ”) is made and entered into as of this 27th
day of September, 2007 (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
(the “ Merger Agreement ”), dated as of
June 1, 2007, as amended on August 1, 2007 (“
Amendment No. 1 ”);
B. On June 1, 2007, the
Company acquired a 50% membership interest in FX Luxury Realty,
LLC, and undertook to distribute to its stockholders 25% of the
shares of common stock of the successor corporation to FX Luxury
Realty, LLC. FX Real Estate and Entertainment Inc. (“
FXRE ”) has been formed as the successor corporation
to FX Luxury Realty, LLC, and pursuant to that certain Contribution
and Exchange Agreement (as defined below), FX Luxury Realty, LLC
has become a wholly owned subsidiary of FXRE (subject to the Flag
Priority Interest (as such term is defined in the Contribution
Agreement). On September 26, 2007, pursuant to a Stock
Purchase Agreement between FXRE, the Company and Flag Luxury
Properties, LLC, the Company acquired an additional 0.742% of the
common stock of FXRE (after giving effect to the transactions
contemplated by such Stock Purchase Agreement.) The Company has
undertaken to distribute its shares of common stock of FXRE to its
stockholders, and has declared and transferred into trust for its
stockholders dividends consisting of shares of common stock of FXRE
subject to such distribution;
C. The parties hereto wish to
make certain further amendments to the Merger Agreement on the
terms and conditions set forth below;
D. The Special Committee
unanimously has recommended that the Board of Directors of the
Company approve and adopt this Amendment No. 2; and
E. 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. 2.
The
recitals set forth in this Amendment No. 2 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, as amended by Amendment No. 1.
2. Amendment to Certain
Section 1.1 Definitions . Section 1.1 of
the Merger Agreement is hereby amended by adding the following
definitions:
““
Amendment Date ” means the Effective Date of Amendment
No. 2 to this Agreement.
“
Contribution and Exchange Agreement ” means the
Contribution and Exchange Agreement, dated September 26, 2007,
between FXRE, the Company, Flag, Richard G. Cushing, as Trustee of
the CKX FXLR Stockholder Distribution Trust I and FX Luxury Realty,
LLC.
“
FXRE ” means FX Real Estate and Entertainment
Inc.
“
Reduction Amount ” means an amount per Merger Share
obtained by multiplying (x) 0.075, by (y) the average of the
last reported sales price per share of common stock of FXRE on the
NASDAQ Global Market (or such other national securities exchange
where shares of common stock of FXRE are listed) for each day of
the Measurement Period, provided that (i) in no event
shall the Reduction Amount be greater than $2.00 per Merger Share;
(ii) the Reduction Amount shall be 0 unless shares of FXRE
common stock are listed and trading on a national securities
exchange during the entire Measurement Period; and (iii) if,
prior to the Effective Time, FXRE completes the rights offering
contemplated in the Membership Interest Purchase Agreement with an
offering price of at least $10.00 per share of FXRE common stock
and pursuant to which FXRE receives gross proceeds of at least
$90,000,000, the Reduction Amount shall be no less than $0.75 per
Merger Share. The formula set forth above assumes that the
stockholders of the Company of record on the record date for the
Spin-Off will receive two shares of common stock of FXRE in the
Spin-Off for every 10 shares of common stock of the Company owned
on such record date (the “ Distribution Ratio
”). The formula shall be adjusted as necessary to account for
any change in the Distribution Ratio and/or the number of
outstanding shares of common stock of FXRE contemplated by the
Distribution Ratio by reason of any stock dividend, subdivision,
reclassification, recapitalization, split-up, combination, exchange
of shares or similar transaction that involves the common stock of
FXRE and takes place prior to the termination of the Measurement
Period.
“
Measurement Period ” means the period of 20
consecutive trading days to be established by the Special
Committee, provided that the Measurement Period may not
begin during the first 20 trading days after the date on which the
shares of FXRE subject to the Spin-Off commence trading on a
national stock exchange and the Measurement Period must terminate
at least 30 trading days prior to the Effective Time.
-2-
“
Membership Interest Purchase Agreement ” means the
Membership Interest Purchase Agreement, dated as of June 1,
2007, as amended on June 18, 2007 and September 27, 2007,
by and among the Company, FX Luxury and Flag.”
Section 1.1 of the Merger Agreement is hereby further amended
by deleting the definitions of “Excluded Party”,
“Flag Transaction Agreements”, “Outside
Date” and “Spin-Off” in their entirety and
replacing them with the following:
“
Excluded Party ” means any Person or group of related
Persons from whom the Company has received, after the Amendment
Date and prior to the Exclusivity Period Start Date, a written
indication of interest that the Board of Directors of the Company
(acting through the Special Committee) believes in good faith is
bona fide and could reasonably be expected to result in a Superior
Proposal.
“
Flag Transaction Agreements ” means the Membership
Interest Purchase Agreement and all of the related agreements
referenced therein, contemplated thereby, or necessary or desired
in connection therewith, including the Flag License Agreements, in
each case, to be executed and delivered by the Company, FX Luxury
Realty, LLC and/or Flag Luxury Properties, LLC, as amended to
date.
“
Outside Dat
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