THIRD AMENDMENT TO AGREEMENT AND
PLAN OF MERGER
THIS THIRD AMENDMENT TO AGREEMENT AND PLAN OF
MERGER (the “ Amendment ”), is dated as of
April 8, 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).
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A.
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Parent, Merger Sub and the Company
are parties 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, and as further amended by that certain
Second Amendment to Agreement and Plan of Merger, dated as of
March 24, 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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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 definition of “ Fifth Deposit
” is hereby deleted in its entirety.
1.1.2 The following definition shall be inserted into
Section 1.01 in alphabetical order:
“‘
Fifth Payment ’ shall have the meaning set forth in
Section 3.09 .”
1.1.3 The definition of “Business Interruption
Fee” is hereby amended by deleting such definition in its
entirety and replacing it with the following:
“‘ 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 , then the Business
Interruption Fee shall mean One Millio
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