ValueAct SmallCap Master Fund, L.P. San Francisco, CA 94133
ValueAct
SmallCap Master Fund, L.P.
000
Xxxxxxx Xxxxxx, Xxxxxx Xxxxx
Xxx
Xxxxxxxxx, XX 00000
June 21,
2010
The Board
of Directors
2000
Avenue of the Stars
Xxxxx
000
Xxx
Xxxxxxx, XX 00000
Gentlemen:
This
agreement (“Agreement”)
sets forth the terms of the agreements between ValueAct SmallCap Master Fund,
L.P. (including any affiliate thereof, “VAC”), NeuMedia, Inc.,
formerly known as Mandalay Media, Inc. (“NeuMedia”), Xxxxxxxx Xxxxxxxxx
(“Xxxxxxxxx”), Xxxxxxxxx
XxxXxxxxx (including in his capacity as Trustee for the AMV Founders under the
AMV Note (each as defined below) “MacLeitch”), Xxxxxx Xxxxx
(“Ellin”), Xxxxxx
Management, LLC (“Xxxxxx
Management”) and Xxxxxx Capital Master Fund, Ltd.(“Xxxxxx Fund” and together with
Ellin and Xxxxxx Management, the “Xxxxxx Affiliates”) and the
Guber Family Trust (“Guber” and, together with the
Xxxxxx Affiliates, the “Lead
Participating Investors” and, together with any other purchasers of New
Senior Notes (as defined below) the “Participating Investors”) with
regard to the (i) partial satisfaction of that certain Senior Secured Note
issued by Twistbox Entertainment, Inc. (“Twistbox”), guaranteed by AMV
Holding Limited (“AMV”)
and held by VAC, as amended (the “VAC Note”), and (ii)
satisfaction of that certain Secured Promissory Note issued by NeuMedia and held
by Xxxxxxxxx, MacLeitch and certain other former shareholders of AMV (the “AMV Founders”), as amended
(the “AMV Note”). The
aggregate outstanding principal amount plus accrued and unpaid interest on the
AMV Note and the VAC Note as of any date of determination is referred to herein
as the “Outstanding
Balance.”
In
consideration of the significant costs to be borne by the parties hereto in
pursuing the transactions contemplated herein and further in consideration of
their mutual undertakings as to the matters described herein, upon execution by
the parties hereto of this Agreement, this Agreement shall constitute the
legally binding and enforceable agreement of the parties hereto.
1. Administration.
(a) The
joint administrators of AMV (the “Administrators”) are
conducting a process in the course of the administration of AMV pursuant to the
provisions of the U.K. Insolvency Act of 1986 (the “Administration”) for the sale
of the shares in the operating subsidiaries of AMV (collectively, the “Assets”). NeuMedia
will retain all assets and liabilities of Twistbox and NeuMedia. The
consummation of the acquisition of the Assets by Newco concurrently upon the
receipt of the funds from the Client Account (as defined below) by NeuMedia
pursuant to Section 1(e) is referred to herein as the “Closing.”
(b) VAC,
the AMV Founders and/or their respective affiliates (whether or not acting in
conjunction with unaffiliated third parties), acting through Antiphony
(Management Holdings) Limited (“Newco”), will acquire at the
Closing the Assets on the standard terms of an English law insolvency
acquisition consistent with the offer to the Administrators in the form attached
hereto as Annex A, resulting in the release of US$23 million of
secured indebtedness, comprising of a release of all amounts due and payable
under the AMV Note and a portion of the amounts due and payable under the VAC
Note. Immediately following the Closing, the AMV Note will be
cancelled in its entirety and the VAC Note will be amended and restated in the
form attached hereto as Annex B following such release or payment in cash (the
“Amended VAC
Note”). The principal amount of the Amended VAC Note will be
an amount equal to US$3.5 million.
(c) [Reserved.]
(d) [Reserved.]
(e) On
Friday, June 18, 2010, the Lead Participating Investors deposited the aggregate
amount of US$2,500,000 in a client account (the “Client Account”) with Manatt,
Xxxxxx & Xxxxxxxx LLP, which will release US$2,500,000 to NeuMedia at the
Closing for the purpose of consummating the purchase by the Lead Participating
Investors of the New Senior Debt (as defined below). NeuMedia will
provide evidence of the receipt of the US$2,500,000 to VAC at the
Closing. The Lead Participating Investors hereby irrevocably commit
to invest an aggregate of US$2,500,000, in NeuMedia at the Closing in exchange
for Notes issued by NeuMedia in the form of Annex D (the “New Senior Notes” and the
indebtedness evidenced thereby, the “New Senior Debt”) allocated as
follows: (a) $1,500,000 by the Xxxxxx Fund and (b) $1,000,000 by the Guber
Family Trust. No later than five business days following the date
hereof, the Lead Participating Investors shall provide notice (substantially in
the form attached hereto as Annex E) to each stockholder of NeuMedia who,
together with its affiliates, held, as of June 13, 2010, at least 5% of the
outstanding common stock of NeuMedia, is an accredited investor within the
meaning of federal securities laws and is not an officer or director of NeuMedia
or an affiliate of an officer or director of NeuMedia (the “Eligible Rights Offering
Participants”), which notice shall set forth the terms pursuant to which
such Eligible Rights Offering Participants may elect to participate in the
funding of the New Senior Debt by acquiring a portion of such indebtedness from
the Lead Participating Investors(the “Rights
Offering”). At the Closing, NeuMedia will issue the New Senior
Notes in the aggregate principal amount of US$2,500,000 to the Lead
Participating Investors, which indebtedness will be senior to the Amended VAC
Note on the terms and to the extent set forth in the Subordination Agreement in
the form of Annex F (the “Subordination
Agreement”). For the avoidance of doubt, except as
contemplated by the immediately preceding sentence, NeuMedia and its
subsidiaries will be prohibited from issuing any debt (including a receivables
line) senior to or pari passu with the Amended VAC Note.
(f) [Reserved.]
2. Transaction
Documents.
(g) Prior
to or concurrently with the execution hereof, certain parties hereto have duly
executed the following documents (collectively with this Agreement, the
Intercompany Balance Documentation and the ancillary documents to be executed in
connection herewith and therewith (including, without limitation, any documents
necessary to effect the acquisition of the Assets), the “Transaction
Documents”):
(i) the
Mutual Release Agreement in the form attached as Annex G
hereto;
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(ii) the
AMV/Administrators Release Agreement in the form attached as Annex H
hereto;
(iii) [Reserved]
(iv) the
Amended VAC Note;
(v) the
Amended and Restated Guarantee and Security Agreement among Twistbox, NeuMedia,
each of the subsidiaries party thereto, the investor party thereto and VAC, as
collateral agent in the form attached as Annex I hereto;
(vi) the
Amended and Restated Guaranty by NeuMedia to VAC in the form attached as Annex J
hereto;
(vii) the
Letter Agreement between VAC, Rob Xxxxx, Xxxxxx Management and NeuMedia in the
form of Annex K hereto;
(viii) the
Subordination Agreement;
(ix) the
New Senior Notes;
(x) the
Guarantee and Security Agreement among Twistbox, NeuMedia, each of the
subsidiaries thereof party thereto, the Participating Investors and the
collateral agent described therein in the form attached as Annex L hereto (the
“New Senior Note Security
Agreement”);
(xi) the
Warrant Agreements between NeuMedia and each of the Participating Investors in
the form of Annex M hereto (the “Warrant
Agreement”);
(xii) the
Resignation Letters in the form of Annex N hereto;
(xiii) the
Earn-Out Transfer Letter Agreement in the form attached as Annex R hereto;
and
(xiv) the
Non-Competition Agreement between Newco and NeuMedia in the form of Annex O
hereto (the “Non-Competition
Agreement”);
(h) Immediately
following the Closing, each of the Transaction Documents set forth in Section
2(a)(i)-(xiv) shall be automatically released and effective without further
action by any party thereto.
(i) At
the Closing, the US$2,500,000 held in the Client Account pursuant to Section
1(e) shall be distributed to NeuMedia.
3. Intercompany
Balances. The
parties acknowledge that NeuMedia, Twistbox and AMV have agreed,
effective as of May 10, 2010, that costs and expenses
from NeuMedia and/or Twistbox to AMV and its subsidiaries are
transferred so as to effect a net-off of intercompany balances between
NeuMedia and/or Twistbox, on the one hand, and AMV and its subsidiaries, on
the other hand so as to achieve a zero balance on that date
for all intercompany balances. The parties agree
to work together in good faith to take whatever actions are reasonably
necessary to get the most favorable tax treatment for the Assets
post-Closing. The documentation effecting a net-off of
such intercompany balances is referred to as the “Intercompany
Balance Documentation.” Any liability incurred by any
party and agreed in advance by both parties after 10 May
2010 will be payable in the ordinary course.
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4. The
parties acknowledge that NeuMedia, Twistbox and AMV have implemented, effective
as of March 31, 2010, an allocation of costs and expenses from NeuMedia and/or
Twistbox to AMV in the amount of US$1,234,206, thus effecting a net-off of
intercompany balances between NeuMedia and/or Twistbox, on the one hand, and
AMV, on the other hand. Any remaining amounts due between and among
AMV and its subsidiaries, on the one hand, and NeuMedia and its subsidiaries
(other than AMV and its subsidiaries), on the other hand, will be
written off and the parties agree to work together in good faith to take
whatever actions are reasonably necessary to get the most favorable tax
treatment for the Assets post-Closing. The documentation effecting a
net-off and write off of such intercompany balances is referred to as the “Intercompany Balance
Documentation.”
5. Cancellation of NeuMedia
Common Stock and Warrants. Upon the Closing, all warrants and
Common Stock of NeuMedia held by VAC will be cancelled and all warrants and
Common Stock of NeuMedia held by MacLeitch and Xxxxxxxxx will be repurchased by
NeuMedia or its assigns for a price of US$0.02 per share.
6. Earn-Out
Transfer. Upon the Closing, Newco shall assume all of
NeuMedia’s obligations to pay Earn-Out Payments (the “Earn-Out Payments”) to the AMV
Founders under and as defined in Section 2.4 of the Stock Purchase Agreement,
dated as of October 8, 2008, between NeuMedia and the AMV Founders and NeuMedia
shall not have any further obligations in respect of such Earn-Out
Payments. Notwithstanding the foregoing, the AMV Founders are
entitled to keep and have no obligation to reimburse any Earn-Out Payments paid
on or prior to the date hereof.
7. Indemnification.
(a) Effective
immediately upon the execution of this Agreement, NeuMedia hereby agrees to
indemnify and hold harmless VAC, the AMV Founders, their respective affiliates
and each of their respective directors, officers, employees, partners,
equityholders, representatives and agents, and each of their respective
successors and assigns (collectively, the “VAC/AMV Founders Indemnified
Parties”) from any and all losses, liabilities, damages, or expenses,
including reasonable fees and expenses of experts and counsel and cost of
litigation, and whether involving a third party or among the parties to this
Agreement (the “Damages”) that any VAC/AMV
Founders Indemnified Party may suffer or become subject to as a result of or
arising out of or in connection with claims by shareholders or other
stakeholders of NeuMedia or any other third party seeking to enjoin performance
of or invalidate this Agreement, any other Transaction Document or the
transactions contemplated hereby or thereby, or seeking damages with respect to
this Agreement, any other Transaction Document or the transactions contemplated
hereby or thereby,.
(b) Effective
immediately upon the Closing, NeuMedia hereby agrees to indemnify and hold
harmless the VAC/AMV Founders Indemnified Parties from any and Damages that any
VAC/AMV Founders Indemnified Party may suffer or become subject to as a result
of or arising out of or in connection with claims by shareholders of NeuMedia or
creditors of NeuMedia, its affiliates and subsidiaries (other than AMV and its
subsidiaries), based in whole or in part on any act, omission, transaction or
occurrence from the beginning of time arising from any aspect of the dealings or
relationships between NeuMedia, its affiliates and subsidiaries (other than AMV
and its subsidiaries) and its and their respective Representatives, on the one
hand, and VAC, AMV and its subsidiaries, the AMV Founders and their respective
Representatives, on the other hand, relating solely to this Agreement and the
other Transaction Documents and any transactions contemplated hereby or
thereby.
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(c) Effective
immediately upon the Closing, NeuMedia hereby agrees to indemnify and hold
harmless the VAC/AMV Founders Indemnified Parties from any and all Damages that
any VAC/AMV Founders Indemnified Party may suffer or become subject to as a
result of or arising out of or in connection with any third party claim relating
to the operation of the business of NeuMedia or its affiliates or subsidiaries
(other than AMV and its subsidiaries) prior to the Closing (other than any third
party claim relating to the operation of the Twistbox business prior to February
12, 2008 and unrelated to the acquisition of Twistbox by NeuMedia).
(d) Effective
immediately upon the Closing, Xxxxxxxxx and MacLeitch, jointly and severally,
hereby agree to indemnify and hold harmless NeuMedia, Twistbox, their affiliates
and each of their respective directors, officers, employees, partners,
equityholders, representatives and agents, and each of their respective
successors and assigns (collectively, the “NeuMedia Indemnified Parties”)
from any and all Damages that any NeuMedia Indemnified Party may suffer or
become subject to as a result of or arising out of or in connection with any
third party claim relating to the operation of the AMV business prior to the
Closing; provided, however,
that this Section 6(d) shall not apply to any third party claim relating to or
arising out of (i) the Content License and Output Agreement, effective as of
July 1, 2009 (the “Vivid
Agreement”), between Waat Media Corp., Twistbox, AMV and Vivid
Entertainment, LLC; (ii) any tax claims; or (iii) claims by shareholders of
NeuMedia or creditors of NeuMedia, its affiliates and subsidiaries (other than
AMV and its subsidiaries), based in whole or in part on any act, omission,
transaction or occurrence from the beginning of time arising from any aspect of
the dealings or relationships between NeuMedia, its affiliates and subsidiaries
(other than AMV and its subsidiaries) and its and their respective
Representatives, on the one hand, and VAC, AMV and its subsidiaries, the AMV
Founders and their respective Representatives, on the other hand, relating to
this Agreement and the other Transaction Documents and any transactions
contemplated hereby or thereby;
provided,
further, however,
that Xxxxxxxxx and MacLeitch shall not be required to indemnify any
NeuMedia Indemnified
Party under this Section 6(c) unless and only to the extent that the
amount of Damages for which the NeuMedia Indemnified
Party seeks indemnification hereunder exceeds US$50,000; provided,
further, however
that the aggregate amount of Damages for which the NeuMedia Indemnified Parties
may seek indemnification under this Section 6(c) shall not exceed US$1,500,000
in the aggregate.
8. [Reserved.]
9. Representations and
Warranties.
(e) Each
party hereto hereby represents and warrants, severally and not jointly and
solely as to itself and not as to any other party hereto, to each of the other
parties hereto that (i) such party hereto has all requisite power and authority
to execute and deliver this Agreement and the other Transaction Documents and to
perform its obligations hereunder and thereunder and (ii) when this Agreement
and the other Transaction Documents are executed and delivered by such party,
this Agreement and the other Transaction Documents shall constitute the legal,
valid and binding obligations of such party enforceable in accordance with their
terms (except to the extent that enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to
creditors’ rights generally or by general principles of equity and public
policy).
(f) Solely
with respect to VAC, VAC is the sole beneficiary of and holds, free and clear of
any lien and has full power and authority to modify the VAC Note.
(g) Solely
with respect to the Xxxxxxxxx and MacLeitch (including in his capacity as
representative for the AMV Founders under the AMV Note), (i) MacLeitch is the
sole beneficiary (as the representative of the AMV Founders) of the AMV Note,
free and clear of any lien and have full power and authority to cancel the AMV
Note and (ii) MacLeitch (in his capacity as security agent for the AMV Founders)
has full power and authority on behalf of the AMV Founders to release the
debenture provided by AMV dated October 23, 2008, which secures amounts owing in
respect of the AMV Note and to take all action necessary in connection
therewith.
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(h) Xxxxxxxxx,
MacLeitch and VAC each owns beneficially and of record, free and clear of any
lien and has full power and authority to transfer free and clear of any lien,
the number and class of shares of NeuMedia Common Stock and the number of
NeuMedia warrants set forth opposite such person’s name on Annex P to be
cancelled or purchased by NeuMedia pursuant to Section 4 and the NeuMedia Common
Stock and NeuMedia Warrants set forth on Annex P represent all of the issued and
outstanding shares of capital stock of NeuMedia and warrants to acquire shares
of capital stock of NeuMedia held by such person as of the date
hereof.
10. [Reserved.]
11. [Reserved.]
12. Expenses. Each
party hereto will bear its own costs and expenses (including, without
limitation, any brokers’ or finders’ fees and any attorneys’ and accountants’
fees) in connection with the transactions proposed by this Agreement; provided, however,
that VAC will advance and recover the costs of the Administration on the terms
agreed to by VAC and the Administrators.
13. Non-Disclosure. Attached
hereto as Annex Q is a form of Press Release to be filed by NeuMedia following
the Closing. Except as provided in the immediately preceding sentence
or as required by law, the rules and regulations of the Securities Exchange
Commission or the requirements of any stock market on which such
party’s common stock is listed or quoted (in which case the disclosing party
shall advise the other party of such disclosure and provide them with a copy of
such disclosure), in the event of any litigation between or involving the
parties hereto and/or, in the case of VAC and the AMV Founders, in connection
with the Administration, the parties hereto will not disclose, directly or
indirectly, the terms of or reveal the existence of this Agreement to any
person, firm or entity, other than their respective Representatives who are
required to be informed thereof in connection with their approval of the
transactions contemplated herein or their representation of the parties in
connection with the transactions contemplated herein. Notwithstanding
the foregoing, it is acknowledged and agreed that each of VAC, MacLeitch and
Xxxxxxxxx may in the future determine that he/it is required to file an
amendment to their report on Schedule 13D reporting, among other things, his/its
ownership interest in NeuMedia and the existence and terms of this Agreement and
the other Transaction Documents and may update such filing as he/it deems
appropriate in his/its sole discretion.
14. Entire Agreement;
Counterparts. This Agreement and the other Transaction
Documents contain the entire understandings of the parties with respect to the
subject matter of each such provision and supersedes any prior agreement between
the parties, including but not limited to that certain Letter of Intent dated
April 16, 2010. This Agreement may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
15. Governing
Law. This Agreement shall be governed by and construed in
accordance with the internal, substantive laws of the State of Delaware, except
any provision of this Agreement insofar as it relates to AMV or the
Administrators and their respective Representatives where this Agreement and any
non-contractual obligations arising out of or in connection with it shall be
governed by and construed in accordance with the laws of England and as to which
the parties intend that such persons shall be entitled to rely upon and enforce
such provisions by virtue of the Contracts (Rights of Third Parties) Xxx 0000 as
thought they were a party to this Agreement.
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16. Consent to Jurisdiction;
Service of Process
(i)
In relation to any legal action or proceedings
arising out of or in connection with any provision of this Agreement insofar as
it relates to AMV or the Administrators or their respective Representatives,
each party hereby irrevocably submits to the jurisdiction of the courts of
England and waives any objection to the courts of England on the grounds that
they are inappropriate or inconvenient forum. Each such submission is
made for the benefit of the other parties to this Agreement (and AMV and the
Administrators and their respective Representatives) and shall not affect the
right of each other party to take proceedings in any other court of competent
jurisdiction nor shall the taking of proceeding in any court of competent
jurisdiction preclude each other party from taking proceedings in any court of
competent jurisdiction (whether concurrently or not) unless precluded by
law.
(j)
Save as set out in Section 15(a) above, the
parties hereto agree that any suit, action or proceeding seeking to
enforce any provision of, or based on any matter arising out of or in connection
with, this Agreement or the transactions contemplated hereby or thereby shall be
brought exclusively in any Delaware State court in the City of Wilmington, or in
the United States District Court for the District of Delaware, and each of the
parties hereby irrevocably consents to the jurisdiction of such courts (and of
the appropriate appellate courts therefrom) in any such suit, action or
proceeding and irrevocably waives, to the fullest extent permitted by law, any
objection that it may now or hereafter have to the laying of the venue of any
such suit, action or proceeding in any such court or that any such suit, action
or proceeding brought in any such court has been brought in an inconvenient
forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees
that service of any process, summons, notice or document by U.S. registered mail
to its address set forth on the signature page hereto shall be deemed effective
service of process for any suit, action or proceeding seeking to enforce any
provision of, or based on any matter arising out of or in connection with, this
Agreement or the transactions contemplated hereby or thereby brought against
such party in any such court as set forth in this Section 15.
17. No Third Party
Beneficiary. Save as expressly provided in this Agreement,
nothing in this Agreement shall confer any rights, remedies or claims upon any
person not a party or a permitted assignee of a party to this Agreement;
provided, however, that (i) the VAC/AMV Founders Indemnified Parties are
intended third party beneficiaries of Section 6(a) and Section 6(b) and (ii) the
NeuMedia Indemnified Parties are intended third party beneficiaries of Section
6(c).
18. Specific
Performance.
(k) The
parties hereto agree that irreparable damage would occur in the event that any
of the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties hereto shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
hereof, this being in addition to any other remedy to which they are entitled at
law or in equity. The parties hereto waive any requirement for
security or the posting of any bond or other surety in connection with any
temporary or permanent award or injunctive, mandatory or other equitable
relief.
(l)
Each party hereto agrees not to question or otherwise
challenge the assertion or enforceability of this remedy, in and of itself, as
described in Section 17(a) by any other party hereto.
[Remainder
of page intentionally left blank.]
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Please
indicate your acceptance of the above terms and conditions by executing and
returning the enclosed copy of this letter to us at your first
opportunity. We look forward to closing the transaction as soon as
possible.
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Very
truly yours,
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VALUEACT
SMALLCAP MASTER FUND, L.P.
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By
its General Partner, VA SmallCap Partners, LLC
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By:
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Name:
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Title:
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Address:
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000
Xxxxxxx Xxxxxx, Xxxxxx Xxxxx
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Xxx
Xxxxxxxxx, XX 00000
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This
Agreement sets forth our understanding of the transactions contemplated herein
and related matters.
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By:
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Name:
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Title:
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Address:
0000 Xxxxxx xx xxx Xxxxx
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Xxxxx
000
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Xxx
Xxxxxxx, XX 00000
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Xxxxxxxx
Xxxxxxxxx
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Address:
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___________
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___________
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Xxxxxxxxx
XxxXxxxxx
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Address:
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___________
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__________]
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Signature
Page to Letter Agreement
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Lead Participating
Investors:
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Xxxxxx
Affiliates:
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Xxxxxx
Capital Master Fund, Ltd.
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By:
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Title:
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Address:
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2000
Avenue of the Stars
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Xxxxx
000
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Xxx
Xxxxxxx,
XX 00000
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Xxxxxx
Management, LLC
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By:
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Title:
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Address:
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0000
Xxxxxx xx xxx Xxxxx
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Xxxxx
000
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Xxx
Xxxxxxx, XX 00000
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Xxxxxx
Xxxxx
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Address:
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0000
Xxxxxx xx xxx Xxxxx
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Xxxxx
000
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Xxx
Xxxxxxx, XX 00000
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Guber:
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Guber
FamilyTrust
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By:
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Address:
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Signature
Page to Letter Agreement
9
ANNEX A
Form of
AMV Offer
10
ANNEX B
Amended
VAC Note
ANNEX C
Intentionally
Omitted
ANNEX D
New
Senior Notes
ANNEX E
Notice of
Rights Offering
ANNEX F
Subordination
Agreement
ANNEX G
Mutual
Release
ANNEX H
AMV
Administrators Release Agreement
ANNEX I
Amended
and Restated Guaranty and Security Agreement
ANNEX J
Amended
and Restated Guaranty
ANNEX K
Ellin
Letter Agreement
ANNEX L
New
Senior Note Security Agreement
ANNEX M
Warrant
Agreement
ANNEX N
Resignation
Letters
ANNEX O
Non-Competition
Agreement
ANNEX P
Certain
Outstanding Shares and Warrants
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Beneficial Owner
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Shares
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Warrants
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VAC
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561,798
shares of Common Stock
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Warrant
to purchase 1,092,622 shares of Common Stock
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Warrant
to purchase 1,092,621 shares of Common Stock
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Warrant
to purchase 280,899 shares of Common Stock
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Xxxxxxxxx
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1,770,287
shares of Common Stock
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MacLeitch
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1,770,287
shares of Common Stock
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ANNEX Q
Form of
Press Release
ANNEX R
Form of
Earn-Out Transfer Agreement
