Exhibit 2.1
FOURTH AMENDMENT TO AGREEMENT AND PLAN OF
MERGER
THIS
FOURTH AMENDMENT TO AGREEMENT AND PLAN OF MERGER (the
“Amendment”), is dated as of April 14, 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
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A.
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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, that certain Second Amendment to Agreement and Plan of
Merger, dated as of March 24, 2009 (the “ Second
Amendment ”), and that certain Third Amendment to
Agreement and Plan of Merger, dated as of April 8, 2009 (as
amended, the “ Merger Agreement ”).
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B.
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Parent, Merger Sub and the Company
desire to amend the Merger Agreement in the manner more
particularly described below.
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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 following definitions shall be inserted into
Section 1.01 in alphabetical order:
“ Fifth Payment Deadline ”
has the meaning set forth in Section 3.09 .
“ Full Release of Deposit ”
has the meaning set forth in Section 3.08(b)
.
“ Full Release Deadline ” has
the meaning set forth in Section 3.08(b).
1.1.2 The definition of “Business Interruption
Fee” is hereby amended by deleting such definition in its
entirety and replacing it with the following:
1
“ 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(a) , then the Business
Interruption Fee shall mean One Million Five Hundred Thousand
Dollars ($1,500,000); and
(b) upon the Full Release of Deposit by
Parent pursuant to Section 3.08(b) hereof, then the
Business Interruption Fee shall mean Zero Dollars ($0.00);
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 Three Million Dollars ($3,000,000).
1.1.3 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 3.10 , the Sixth Deposit, less the Partial
Release of Deposit released by Parent pursuant to
Section 3.08(a) and the Full Release of Deposit
released by Parent pursuant to Section 3.08(b)
.
1.2 Release of Deposit . Section 3.08 of the Merger
Agreement of the Merger Agreement is hereby amended by deleting
such section in its entirety and replacing it with the
following:
(a) “ Partial Release of
Deposit. In consideration for the Company entering into,
a
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