Unassociated Document


     

    EXHIBIT
      10.1

    
 

    AMENDMENT
      NO. 2 TO AGREEMENT AND PLAN OF MERGER

     

    AND
      INTERESTS PURCHASE AGREEMENT

     

    This
      Amendment (this “Amendment”)
      is
      entered into as of August 1, 2008, by and among FORTISSIMO ACQUISITION CORP.,
      a
      Delaware corporation (“Parent”);
      FAC
      ACQUISITION SUB CORP., a New York corporation and a wholly-owned subsidiary
      of
      Parent (“Merger
      Sub”);
      PSYOP, INC., a New York corporation (the “Company”);
      PSYOP
      SERVICES, LLC, dba Blacklist (“Blacklist”);
      JUSTIN BOOTH-CLIBBORN, HEJUNG MARIE HYON, JUSTIN LANE, KYLIE MATULICK,
      EBEN MEARS, ROBERT TODD MUELLER, SAMUEL SELINGER, MARCO SPIER AND
      CHRISTOPHER STAVES (individually, a “Stockholder”
and
      collectively, the “Stockholders”);
      and
      JUSTIN BOOTH-CLIBBORN (the “Stockholders’
      Representative”)
      as
      agent and attorney-in-fact for each Stockholder.

     

    WHEREAS,
      the parties to this Amendment are parties to the Agreement and Plan of Merger
      and Interests Purchase Agreement, dated as of January 15, 2008, by and among
      Parent, Merger Sub, the Company, Blacklist, the Stockholders and the
      Stockholders’ Representative, as amended by Amendment No. 1 thereto dated as of
      May 12, 2008 (together, the “Merger
      Agreement”);

     

    WHEREAS,
      the parties to this Amendment wish to make certain modifications to the Merger
      Agreement as set forth herein;

     

    NOW,
      THEREFORE, in consideration of the premises, covenants and representations
      set
      forth herein, and for other good and valuable consideration, the receipt and
      sufficiency of which is hereby acknowledged, the parties hereby agree to amend
      the Merger Agreement as set forth below:

     

    1.  Definitions.
      Unless
      otherwise specified, capitalized terms used and not otherwise defined in this
      Amendment shall have the same meanings as set forth in the Merger
      Agreement.

     

    2.  Interpretation.
      The
      rules of construction set forth in Section 1.02 of the Merger Agreement shall
      apply mutatis mutandis to
      this
      Amendment as if set forth in full in this Section 2.

     

    3.  Amendment
      to Section 1.01; Definition of Combined Financial Statements.
      The
      definition of “Combined Financial Statements” is hereby deleted from Section
      1.01 of the Merger Agreement.

     

    4.  Amendment
      to Section 1.01; Definition of Consolidated Financial Statements.
      The
      definition of “Consolidated Financial Statements” is hereby deleted from Section
      1.01 of the Merger Agreement.

     

    5.  Amendment
      to Section 1.01; Definition of Financial Statements.
      The
      following definition of “Financial Statements” is hereby inserted immediately
      after the definition of “Expenses” and immediately prior to the definition of
“GAAP” in Section 1.01 of the Merger Agreement:

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    “Financial
      Statements”
      has the
      meaning set forth in Section 3.07(a).

     

    6.  Amendment
      to Section 2.13.
      A
      new
      Section 2.13(d) is hereby added to the Merger Agreement, to read as
      follows:

     

    (d) Notwithstanding
      anything to the contrary in this Section 2.13 or elsewhere in this Agreement,
      including Exhibit A hereto, Samuel Selinger shall not receive any Contingent
      Consideration with respect to the Annual Contingent Consideration Period ending
      December 31, 2010 and the Stock Contingent Consideration and Cash Contingent
      Consideration that he otherwise would be entitled to receive with respect to
      such Annual Contingent Consideration Period shall be allocated among the other
      Stockholders pro rata in accordance with their stock ownership percentages
      set
      forth in Table D of Exhibit A, which allocation is reflected in Tables B and
      C
      of Exhibit A with respect to such Annual Contingent Consideration
      Period.

     

    7.  Amendment
      to Section 3.07.
      Section
      3.07 of the Merger Agreement is hereby replaced in its entirety with the
      following:

     

    (a) The
      Company has delivered to the Parent copies of (i) the audited consolidated
      and
      combined balance sheet of the Company (including the Company Subsidiary) and
      Blacklist at December 31, 2007, together with the related statements of
      operations, stockholders’ equity and cash flows for the year then ended and the
      notes thereto and (ii) the unaudited consolidated and combined balance sheet
      of
      the Company (including the Company Subsidiary) and Blacklist at March 31, 2008,
      together with the related statements of operations, stockholders’ equity and
      cash flows for the three months then ended and the notes thereto (collectively,
      the “Financial
      Statements”).
      The
      Financial Statements (x) were prepared in accordance with GAAP (except, with
      respect to such thereof that are unaudited, for the absence of notes thereto
      and
      for year-end adjustments) applied on a consistent basis throughout the periods
      covered thereby; (y) present fairly the financial position, results of
      operations and cash flows of the Company (including the Company Subsidiary)
      and
      Blacklist as of such dates and for the periods then ended; and (z) are correct
      and complete in all material respects and can be reconciled with the books
      of
      account and records of the Company (including the Company Subsidiary) and
      Blacklist. Each of the Company (including the Company Subsidiary) and Blacklist
      maintains and will continue to maintain an adequate system of internal controls
      established and administered in accordance with GAAP.


     

    (b) Except
      as
      and to the extent set forth or reserved against on the audited balance sheet
      of
      the Company at December 31, 2007, none of the Company, Blacklist or the Company
      Subsidiary has any liabilities or obligations of any nature (whether accrued,
      absolute, contingent or otherwise) that would be required to be reflected on
      a
      balance sheet or in notes thereto prepared in accordance with GAAP, except
      for
      immaterial liabilities or obligations incurred in the ordinary course of
      business consistent with past practice since December 31, 2007.

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

    8.  Amendment
      to Section 8.02(g).
      Section
      8.02(g) of the Merger Agreement is hereby replaced in its entirety with the
      following:

     

    (g)
       SAS
      100. Parent
      shall have received a review report, reasonably satisfactory in form and
      substance to Parent, from the Company’s independent public accountants, pursuant
      to Statement of Accounting Standards No. 100, relating to the unaudited
      consolidated and combined balance sheet of the Company (including the Company
      Subsidiary) and Blacklist at the end of the most recent quarter for which
      financial statements are included in the proxy statement, together with the
      related statements of operations, stockholders’ equity and cash flows for the
      interim period then ended and the notes thereto. 

     

    9.  Amendment
      to Section 11.02.
      Section
      11.02 of the Merger Agreement is hereby replaced in its entirety with the
      following:

     

    Section
      11.02. Notices.
      All
      notices which are required or may be given pursuant to the terms of this
      Agreement shall be in writing and shall be sufficient and deemed to be received
      if (i) on the date of delivery, if delivered personally, (ii) 3 days after
      mailing, if mailed by registered or certified mail, return receipt requested
      and
      postage prepaid, (iii) the day after mailing, if sent via a nationally
      recognized overnight courier service or (iv) the day after transmission, if
      sent
      via facsimile or e-mail confirmed in writing to the recipient, in each case
      as
      follows:

     

    if
      to
      Parent, to:

     

    
      	 	 	
              Fortissimo
                Acquisition Corporation 

            


    

    
      	 	 	
              14
                Hamelacha Street

            


    

    
      	 	 	
              Park
                Afek PO Box 11704

            


    

    
      	 	 	
              Rosh
                Haayin 48091

            


    

    
      	 	 	
              Israel

            


    

    
      	 	 	
              Attention:
                Marc S. Lesnick

            


    

    Telephone:
      011-972-3-915-7466  

    
      	 	 	
              Facsimile:
                011-972-3-915-7411

            


    

    
      	 	 	
              E-mail:
                marc@ffcapital.com

            


    

    


    with
      a
      copy (which shall not constitute notice) to:

     

    
      	 	 	
              Wilmer
                Cutler Pickering Hale and Dorr LLP

            


    

    399
      Park
      Avenue

    New
      York,
      New York 10022

    Attention:
      Brian B. Margolis, Esq.

    
      	 	 	
              Telephone:
                (212) 937-7239

            


    

    
      	 	 	
              Facsimile:
                (212) 230-8888

            


    

    E-mail:
      brian.margolis@wilmerhale.com

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

    if
      to the
      Company, to:

     

    Psyop,
      Inc.

    124
      Rivington Street

    New
      York,
      NY 10002

    Attention:
      Justin Booth-Clibborn

    Telephone:
      (212) 533-9055 

    Facsimile:
      (212) 533-9112 

    E-mail:
      justin@psyop.tv

    


    with
      a
      copy (which shall not constitute notice) to:

    


    Graubard
      Miller

    405
      Lexington Avenue

    
      	 	 	
              New
                York, NY 10174

            


    

    Attention:
      David A. Miller, Esq.

    Telephone:
      212-818-8661

    Facsimile:
      646-227-5439

    E-mail:
      dmiller@graubard.com

    


     

    if
      to any
      Stockholder, to the address appearing under the name of such Stockholder in
      Schedule
      I
      hereto;

     

    or
      such
      other address or addresses as any party shall have designated by notice in
      writing to the other parties.

     

    10.  Amendment
      to Tables B, C and D of Exhibit A.
      Tables
      B, C and D of Exhibit A are hereby replaced in their entirety by the following:
      

     

    
      	
              TABLE
                B 

            
	
              Stockholder
                Maximum Revenue Contingent Stock and Maximum
                Revenue

            
	
              Contingent
                Cash By Fiscal Year

            
	 	 	 	 	 	 	 
	 	
              Maximum
                Revenue Contingent Stock

            	
              Maximum
                Revenue Contingent Cash

            
	 	
              (shares)

            	
              ($)

            
	
              Fiscal
                Year

            	
              2008

            	
              2009

            	
              2010

            	
              2008

            	
              2009

            	
              2010

            
	
              Justin
                Booth-Clibborn 

            	
              12,145.93

            	
              12,145.93

            	
              9,500.97

            	
              $
                35,041.00

            	
              $
                35,041.00

            	
              $
                27,410.28

            
	
              Hejung
                Marie Hyon 

            	
              50,769.97

            	
              50,769.97

            	
              39,714.02

            	
              $146,471.37

            	
              $146,471.37

            	
              $114,574.96

            
	
              Justin
                Lane 

            	
              9,109.44

            	
              9,109.44

            	
              7,125.72

            	
              $
                26,280.75

            	
              $
                26,280.75

            	
              $
                20,557.71

            
	
              Kylie
                Matulick 

            	
              32,368.89

            	
              32,368.89

            	
              25,320.07

            	
              $
                93,384.26

            	
              $
                93,384.26

            	
              $
                73,048.38

            
	
              Eben
                Mears 

            	
              50,769.97

            	
              50,769.97

            	
              39,714.02

            	
              $146,471.37

            	
              $146,471.37

            	
              $114,574.96

            
	
              Robert
                Todd Mueller 

            	
              50,769.97

            	
              50,769.97

            	
              39,714.02

            	
              $146,471.37

            	
              $146,471.37

            	
              $114,574.96

            
	
              Samuel
                Selinger 

            	
              11,903.01

            	
              11,903.01

            	
              0.00

            	
              $
                34,340.18

            	
              $
                34,340.18

            	
              $
                0.00

            
	
              Marco
                Spier 

            	
              50,769.97

            	
              50,769.97

            	
              39,714.02

            	
              $146,471.37

            	
              $146,471.37

            	
              $114,574.96

            
	
              Christopher
                Staves 

            	
              20,243.21

            	
              20,243.21

            	
              15,834.94

            	
              $
                58,401.66

            	
              $
                58,401.66

            	
              $
                45,683.79

            
	
              Maximum
                Total 

            	
              288,850.38

            	
              288,850.38

            	
              216,637.78

            	
              $833,333.33

            	
              $833,333.33

            	
              $625,000.00

            


    

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

     

    
      	
              TABLE
                C

            
	
              Stockholder
                Maximum EBITDA Contingent Stock and Maximum
                EBITDA

            
	
              Contingent
                Cash By Fiscal Year

            
	 	 	 	 	 	 	 
	 	
              Maximum
                EBITDA Contingent Stock

            	
              Maximum
                EBITDA Contingent Cash

            
	 	
              (shares)

            	
              ($)

            
	
              Fiscal
                Year

            	
              2008

            	
              2009

            	
              2010

            	
              2008

            	
              2009

            	
              2010

            
	
              Justin
                Booth-Clibborn 

            	
              12,145.93

            	
              12,145.93

            	
              9,500.97

            	
              $
                35,041.00

            	
              $
                35,041.00

            	
              $
                27,410.28

            
	
              Hejung
                Marie Hyon 

            	
              50,769.97

            	
              50,769.97

            	
              39,714.02

            	
              $146,471.37

            	
              $146,471.37

            	
              $114,574.96

            
	
              Justin
                Lane 

            	
              9,109.44

            	
              9,109.44

            	
              7,125.72

            	
              $
                26,280.75

            	
              $
                26,280.75

            	
              $
                20,557.71

            
	
              Kylie
                Matulick 

            	
              32,368.89

            	
              32,368.89

            	
              25,320.07

            	
              $
                93,384.26

            	
              $
                93,384.26

            	
              $
                73,048.38

            
	
              Eben
                Mears 

            	
              50,769.97

            	
              50,769.97

            	
              39,714.02

            	
              $146,471.37

            	
              $146,471.37

            	
              $114,574.96

            
	
              Robert
                Todd Mueller 

            	
              50,769.97

            	
              50,769.97

            	
              39,714.02

            	
              $146,471.37

            	
              $146,471.37

            	
              $114,574.96

            
	
              Samuel
                Selinger 

            	
              11,903.01

            	
              11,903.01

            	
              0.00

            	
              $
                34,340.18

            	
              $
                34,340.18

            	
              $
                0.00

            
	
              Marco
                Spier 

            	
              50,769.97

            	
              50,769.97

            	
              39,714.02

            	
              $146,471.37

            	
              $146,471.37

            	
              $114,574.96

            
	
              Christopher
                Staves 

            	
              20,243.21

            	
              20,243.21

            	
              15,834.94

            	
              $
                58,401.66

            	
              $
                58,401.66

            	
              $
                45,683.79

            
	
              Maximum
                Total 

            	
              288,850.38

            	
              288,850.38

            	
              216,637.78

            	
              $833,333.33

            	
              $833,333.33

            	
              $625,000.00

            


    

    


    

      
        	
                TABLE
                  D

                Stockholder
                  Ownership Percentages*

              
	
                Stockholder

              	
                Percentage

              
	
                Justin
                  Booth-Clibborn

              	
                4.2049%

              
	
                Hejung
                  Marie Hyon

              	
                17.5766%

              
	
                Justin
                  Lane

              	
                3.1537%

              
	
                Kylie
                  Matulick

              	
                11.2061%

              
	
                Eben
                  Mears

              	
                17.5766%

              
	
                Robert
                  Todd Mueller

              	
                17.5766%

              
	
                Samuel
                  Selinger

              	
                4.1208%

              
	
                Marco
                  Spier

              	
                17.5766%

              
	
                Christopher
                  Staves

              	
                7.0082%

              


      

    

    *
      Ownership is calculated as of the date of the Closing. Numbers in
      table
      D do not equal 100.0000% due to rounding.

     

    11.  Acknowledgment
      Regarding Section 2(b) of Exhibit A.
      The
      parties acknowledge that the termination of Samuel Selinger’s employment with
      the Company, which termination was effective as of June 30, 2008, shall not
      be
      deemed to be a Disqualifying Termination for purposes of the Merger
      Agreement.

     

    12.  Conflict.
      In the
      event of conflict between this Amendment and the Merger Agreement, this
      Amendment shall prevail.

     

    13.  No
      Other Amendment.
      Except
      as expressly provided in this Amendment, no other amendments to the Merger
      Agreement are made by this Amendment.

     

    14.  Continuing
      Effectiveness.
      Except
      as amended by this Amendment, the Merger Agreement shall continue in full force
      and effect in accordance with its terms.

     

    15.  Governing
      Law.
      This
      Amendment shall be governed by, and construed and enforced in accordance with,
      the law of the State of New York other than conflicts of law principles thereof
      directing the application of any law other than that of New York. 

     

    16.  Counterparts;
      Facsimiles.
      This
      Amendment may be executed in two (2) or more counterparts, each of which shall
      be deemed an original but all of which together shall constitute one and the
      same instrument. This Amendment may be executed by facsimile
      signature.

     

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    

     

    IN
      WITNESS WHEREOF, the undersigned have executed this Amendment or have caused
      this Amendment to be duly executed and delivered by their proper and duly
      authorized representatives as of the day and year first above
      written.

     

    
      	 	 	 
	 	
              FORTISSIMO
                ACQUISITION CORP.

            
	 
 	 
 	 
 
	 	By:  	/s/ Yuval
              Cohen
	 	
              

              Name:
                Yuval Cohen 
                Title:
                  President and Chief Executive Officer

              

            
	 	 


      	 	 	 
	 	
              FAC
                ACQUISITION SUB CORP.

            
	 
 	 
 	 
 
	 	By:  	/s/ Yuval
              Cohen
	 	
              

              Name:
                Yuval Cohen 
                Title:
                  President

              

            
	 	 




    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

    

     

    
      	 	 	 
	 	
              PSYOP,
                INC.

            
	 
 	 
 	 
 
	 	By:  	/s/ Justin
              Booth-Clibborn
	 	
              

              Name:
                Justin Booth-Clibborn
                Title:
                  Chief Executive Officer

              

            
	 	 


      	 	 	 
	 	
              PSYOP
                SERVICES, LLC

            
	 
 	 
 	 
 
	 	By:  	/s/ Justin
              Booth-Clibborn
	 	
              

              Name:
                Justin Booth-Clibborn
                Title:
                  Member and Chief Executive Officer

              

            
	 	 


      	 	 	 
	 	 
	 	 	 
	 	 	/s/ Justin
              Booth-Clibborn
	 	
              

              JUSTIN
                BOOTH-CLIBBORN

            
	 	 


      	 	 	 
	 	 
	 	 	 
	 	  	/s/ Hejung
              Marie Hyon
	 	
              

              HEJUNG
                MARIE HYON

            
	 	 


      	 	 	 
	 	 
	 	 	 
	 	 	/s/ Justin
              Lane
	 	
              

              JUSTIN
                LANE

            
	 	 


      	 	 	 
	 	 
	 	 	 
	 	 	/s/ Kylie
              Matulick
	 	
              

              KYLIE
                MATULICK

            
	 	 


      	 	 	 
	 	 
	 	 	 
	 	  	/s/ Eben
              Mears
	 	
              

              EBEN MEARS

            
	 	 


      	 	 	 
	 	 
	 	 	 
	 	  	/s/ Robert
              Todd Mueller
	 	
              

              ROBERT
                TODD MUELLER

            
	 	 


      	 	 	 
	 	 
	 	 	 
	 	 	/s/ Samuel
              Selinger
	 	
              

              SAMUEL
                SELINGER

            
	 	 


      	 	 	 
	 	 
	 	 	 
	 	 	/s/ Marco
              Spier
	 	
              

              MARCO
                SPIER

            
	 	 


      	 	 	 
	 	 
	 	 	 
	 	 	/s/ Christopher
              Staves
	 	
              

              CHRISTOPHER
                STAVES

            
	 	 


      	 	 	 
	 	
              STOCKHOLDERS’
                REPRESENTATIVE

            
	 
 	 
 	 
 
	 	By:  	/s/ Justin
              Booth-Clibborn
	 	
              

              Justin
                Booth-Clibborn

            
	 	 




    7