Exhibit 2.5
THIRD AMENDMENT TO
AGREEMENT AND PLAN OF
MERGER AND REORGANIZATION
This Third Amendment to Agreement and Plan of Merger and Reorganization
("Amendment") is made effective as of October 30, 1996, between NETTER DIGITAL
ENTERTAINMENT, INC., a Delaware corporation ("NDEI"), NETTER ACQUISITION, INC.,
a California corporation ("NAC") and VIDESSENCE, INC., a California corporation
("Videssence"), with reference to the following facts:
A. NDEI, NAC and Videssence entered into an Agreement and Plan of
Merger and Reorganization dated April 26, 1996 (the "Merger
Agreement") pursuant to which NAC would merge into Videssence,
making Videssence the wholly-owned subsidiary of NDEI.
B. NDEI, NAC and Videssence entered into the First Amendment to
Merger Agreement, dated July 3, 1996 (the "First Amendment")
and a Second Amendment to Merger Agreement, dated August 31,
1996 (the "Second Amendment") whereby the parties amended and
modified the Merger Agreement.
C. NDEI, NAC and Videssence wish to amend the Second Amendment
and further amend the First Amendment and the Merger Agreement
to merge NAC into Videssence such that Videssence becomes the
wholly-owned subsidiary of NDEI on the terms and conditions
set forth in the Merger Agreement, the First Amendment and the
Second Amendment, both as modified in this Amendment.
D. Terms with initial capital letters used in this Amendment and
not otherwise defined herein shall have the same meanings set
forth in the Merger Agreement, the First Amendment or the
Second Amendment, as appropriate.
NOW, THEREFORE, the parties hereby agree as follows:
1. Modification to Second Amendment: The Second Amendment is hereby modified as
follows:
1.1. Section 1.2 of the Second Amendment shall be amended and restated as
follows:
by Netter if any of the conditions in Article VII have not been satisfied
as of December 20, 1996 or if satisfaction of such a condition is or becomes
impossible (other than through the failure of Netter to comply with its
obligations under this Agreement) and Netter has not waived such condition on or
before December 20, 1996; or
1.2 Section 1.3 to the Second Amendment shall be amended and restated as
follows:
by Videssence, if any of the conditions in Article VIII not been satisfied
as of December 20, 1996 or if satisfaction of such a condition is or becomes
impossible (other than through the failure of Videssence to comply with their
obligations under this Agreement) and Videssence has not waived such condition
on or before December 20, 1996;
1.3 Section 1.4 to the Second Amendment shall be amended and restated as
follows:
by either Netter or Videssence if the Closing has not occurred (other than
through the failure of any party seeking to terminate this Agreement to comply
fully with its obligations under this Agreement) on or before December 20, 1996,
or such later date as the parties may agree upon.
2. Other Provisions Unmodified. Except as expressly modified hereby, the
rights, obligations and terms of the Second Amendment, the First Amendment
and the Merger Agreement shall remain unmodified and in full force and
effect. In the event of a conflict between the Amendment and any or all of
the First Amendment, Second Amendment or Merger Agreement, the Amendment
shall be controlling.
3. Counterparts. This Amendment may be executed in several counterparts, and
all so executed shall constitute an agreement, binding on all the parties
hereto, notwithstanding that all of the parties are not signatory to the
original or the same counterpart.
IN WITNESS WHEREOF, this Amendment is effective as of the date first
set forth above.
NETTER DIGITAL ENTERTAINMENT, INC., a Delaware corporation
By_/S/Xxxxxxx Netter______________
Xxxxxxx Xxxxxx, President
VIDESSENCE, Inc., a California corporation
By_/S/Xxxx Costa__________________
Xxxx Xxxxx, President
NETTER ACQUISITION, INC., a California corporation
By_/S/Xxxxxxx Netter______________
Xxxxxxx Xxxxxx, President