TERMINATION OF PROXY AND RIGHT OF FIRST REFUSAL AGREEMENT
This Termination of Proxy and Right of First Refusal Agreement (this
"Termination Agreement") is entered into as of April 16, 2007, by and between
Xxxxx Xxxxxxxx ("Xx. Xxxxxxxx") and Xxxx X. Bagerdjian ("Mr. Bagerdjian").
RECITALS
A. Xx. Xxxxxxxx and Mr. Bagerdjian are parties to a Proxy and Right of
First Refusal Agreement dated as of January 18, 2007 (the "Proxy and Right of
First Refusal Agreement") pursuant to which, among other things, (i) Xx.
Xxxxxxxx granted to Mr. Bagerdjian an irrevocable proxy with respect to all
shares of the common stock of Point.360, a California corporation ("Point.360"),
that she beneficially owns with respect to a vote, consent, waiver, or other
action by Point.360's shareholders prior to July 31, 2008 on a proposal
regarding a "Change of Control" (as such term is defined in the Proxy and Right
of First Refusal Agreement), and (ii) Mr. Bagerdjian and Xx. Xxxxxxxx each gave
to the other party a right of first refusal to purchase any shares of Point.360
common stock that he or she proposes to sell prior to July 31, 2008, other than
on the open market.
B. Point.360 intends to enter into an Agreement and Plan of Merger and
Reorganization (as the same may be amended from time to time, the "Merger
Agreement"), with DG FastChannel, Inc., a Delaware corporation (the "DG"), and
New 360, a California corporation, pursuant to which DG will (i) make an
exchange offer to acquire all of the issued and outstanding shares of common
stock of Point.360, and (ii) after DG has acquired shares of Point.360 common
stock pursuant to the Xxxxxx Xxxxxxxxx, Xxxxx.000 will merge with and into DG
upon the terms and subject to the conditions set forth in the Merger Agreement.
C. As a condition to its willingness to enter into the Merger
Agreement, DG has requested Xx. Xxxxxxxx and Mr. Bagerdjian to terminate the
Proxy and Right of First Refusal Agreement. Xx. Xxxxxxxx and Mr. Bagerdjian
believe that the Merger Agreement is in their best interests and are willing to
terminate the Proxy and Right of First Refusal Agreement.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, Xx. Xxxxxxxx and Mr. Bagerdjian hereby agree as follows:
1. Effective as of the date that the Merger Agreement is executed and
delivered by all of the parties thereto, the Proxy and Right of First Refusal
Agreement hereby is terminated.
2. If the Merger Agreement is terminated for any reason pursuant to any
provision in Section 8.1 of the Merger Agreement, (i) this Termination Agreement
automatically shall be rescinded in full, effective concurrently with the
termination of the Merger Agreement and without the need by Xx. Xxxxxxxx or Mr.
Bagerdjian to execute an instrument implementing such rescission, and (ii) each
and every provision of the Proxy and Right of First Refusal Agreement
automatically shall be reinstated in full, effective concurrently with the
termination of the Merger Agreement and without the need by Xx. Xxxxxxxx or Mr.
Bagerdjian to execute an instrument implementing the reinstatement of the Proxy
and Right of First Refusal Agreement.
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IN WITNESS WHEREOF, the undersigned have executed and delivered this
Termination Agreement as of the date first written above.
_____________________________
XXXX X. BAGERDJIAN
_____________________________
XXXXX XXXXXXXX
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