Contract
21 June,
2010
0000
Xxxxxx xx xxx Xxxxx
Xxxxx
000
Xxx
Xxxxxxx, XX 00000
Antiphony
(Management Holdings) Limited
3 More
Xxxxxx Xxxxxxxxx
Xxxxxx
XX0 0XX
Re: Transfer
of Earn Out Payments
Gentlemen:
This
letter is delivered pursuant to Section 5 of that certain Letter Agreement dated
June 13, 2010 (“Letter
Agreement”) among ValueAct SmallCap Master Fund, L.P., NeuMedia, Inc.,
formerly known as Mandalay Media, Inc. (“NeuMedia”), Xxxxxxxx
Xxxxxxxxx, Xxxxxxxxx XxxXxxxxx (including in his capacity as Trustee for the AMV
Founders under the AMV Note) and certain lead purchasers of the New Senior
Notes. Capitalized terms used in this letter and not defined herein
shall have the meanings given to them in the Letter Agreement.
Reference
is made to Section 2.4 and related provisions of that certain Stock Purchase
Agreement, dated as of October 8, 2008, as amended (“Stock Purchase Agreement”),
between NeuMedia and the Sellers party to the Stock Purchase Agreement (“Sellers”), providing for
certain Earn Out Payments.
In
accordance with the Letter Agreement, effective as of the Closing Date, the
undersigned, in his capacity as Sellers’ Representative, as defined and
specified in the Stock Purchase Agreement, hereby irrevocably terminates and
cancels any and all obligations of NeuMedia, or any of its affiliates, with
respect to the Earn Out Payments, whether arising before or after the Closing
Date; provided, however, the obligations with respect to the Earn Out Payments,
including the Sellers’ claim
for Earn Out Payments for the period ended 31 March 2010, will
be transferred to and assumed by Newco in a manner that is intended to retain
the capital gains tax treatment of such payments and, for the avoidance of
doubt, all obligations of NeuMedia or any of its affiliates with respect to such
payments shall be discharged in full and NeuMedia makes no admission regarding
such obligations. Newco (now known as Antiphony (Management Holdings)
Limited) hereby agrees with the Sellers’ Representative that the Earn Out
Payments amount to
£1,711,000 and are due and payable today.
Notwithstanding the foregoing, the Sellers are entitled to keep and shall have
no obligation to reimburse any Earn-Out Payments paid to the Sellers on or prior
to the date hereof.
1
The undersigned represents and warrants
that he is the duly appointed and acting Sellers’ Representative, and has the
requisite power and authority on behalf of the Sellers under the Stock Purchase
Agreement to execute this letter on behalf of, and bind the Sellers hereto as if
they were parties hereof. This letter shall be governed by and
construed in accordance with the internal, substantive laws of the State of
Delaware.
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of page intentionally left blank.]
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Very
truly yours,
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Xxxxxxxxx
XxxXxxxxx, Sellers’
Representative
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Agreed
and accepted as of the date first written above:
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By:
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Name:
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Title:
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Agreed
and accepted as of the date first written above:
ANTIPHONY
(MANAGEMENT HOLDINGS) LIMITED.
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By:
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Name:
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Title:
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