SECOND AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
This Second
Amendment to Agreement and Plan of Merger (this “
Amendment ”) is dated as of June 1, 2009, by and among
PlanetOut Inc. , a Delaware corporation (“
Company ”), Here Media Inc., a Delaware
corporation (“ Parent ”), HMI Merger Sub
, a Delaware corporation that is a wholly-owned subsidiary of
Parent (“ Merger Sub ”), the HMI Owners and the
HMI Entities signatory hereto.
Whereas , Company, Parent, Merger Sub,
the HMI Owners and the HMI Entities (collectively, the “
Parties ”) are parties to that certain Agreement and
Plan of Merger, dated as of January 8, 2009, as amended
April 27, 2009 (the “ Merger Agreement ”),
providing for, among other things, the merger of Merger Sub with
and into Company and the contribution of the ownership interests in
the HMI Entities to Parent; and
Whereas , the Parties wish to amend the
Merger Agreement pursuant to Section 8.4 thereof, as further
provided herein.
Now Therefore , in
consideration of the foregoing and the representations, warranties,
covenants and agreements set forth herein, and for other good and
valuable consideration, and intending to be legally bound, the
Parties agree as follows:
1.
Certain Terms . Capitalized terms used herein bu
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