Letter Agreement
October 24, 2000
Winter Harbor, L.L.C.
c/o First Media, L.P.
00000 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Gentlemen,
Reference is made to the Securities Purchase Agreement, dated as of August
30, 2000, as amended, (the “Securities Purchase Agreement”), by and among
Winter Harbor, L.L.C., a Delaware limited liability company (“Winter Harbor”),
Red Cube International AG, an Aktiengesellschaft organized under the laws of
Swizterland (“Red Cube”) and KPR Finanz-Und Verwaltungs AG, an Aktiengesellschaft
organized under the laws of Switzerland. Red Cube and Winter Harbor have
previously agreed that the First Closing would occur on October 25, 2000. The
parties agree that pursuant to the terms of this letter agreement (the “Letter
Agreement”) all provisions of the Securities Purchase Agreement shall
remain in full force and effect except follows:
1. Subject to the receipt by Winter Harbor of the payment described in
paragraph 2 of this Letter Agreement, the parties agree that:
(a) Section 7.1(a)(i) of the Securities Purchase Agreement is amended
to read in its entirety as follows:
Except as provided in Section 7.1(a)(ii), or as otherwise agreed to by
Red Cube and Winter Harbor, the First Closing shall occur at 10:00 a.m. on
December 31, 2000 or such earlier date as Red Cube shall designate to
Winter Harbor on not less than five Business Days’ written notice.
(b) Each of Section 9.1(c) and Section 9.2(c) of the Securities
Purchase Agreement is amended to read in its entirety as follows:
Upset Date. If the First Closing shall not have occurred on or prior to
December 31, 2000.
2. Red Cube shall pay to Winter Harbor on October 25, 2000, U.S.
$20,000,000 by wire transfer of same-day funds to the account previously
designated by Winter Harbor. Such payment shall not be refundable by Winter
Harbor to Red Cube under any circumstances. However, if the First Closing
occurs, Winter Harbor agrees to credit the amount of such payment, without
interest, against the purchase price payable by Red Cube at the First Closing
under Section 2.2(a) of the Securities Purchase Agreement. The
credit to Red Cube, provided for in the preceding sentence of this paragraph 2,
which Red Cube would have been entitled to receive if the First Closing had
occurred, may be taken into account in calculating the amount of damages
suffered by Red Cube in the event of Winter Harbor’s breach of the
Securities Purchase Agreement.
3. Capitalized terms used herein by not defined herein have the meanings
ascribed to such terms in the Securities Purchase Agreement.
* * * * * * * *
The remainder of this page has been intentionally left blank.
The following page is the signature page.
Kindly acknowledge your confirmation and agreement with the foregoing by
countersigning this letter agreement in the space provided below, whereupon this
will become a binding agreement among us.
Sincerely,
Red Cube International AG
By: /s/Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
KPR Finanz-Und Verwaltungs AG
By: /s/Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
CONFIRMED AND AGREED BY
Winter Harbor, L.L.C.
By: First Media L.P. its member
By: First Media Corporation its general
partner
By: /s/Xxxxx Xxxxx Xx.
Name: Xxxxx Xxxxx Xx.
Title: Secretary and Principal
Executive
