JOINT FILING AGREEMENT
Exhibit
99.2
JOINT
FILING AGREEMENT (this “Agreement”), dated as of April
16, 2008, by and among the parties identified in the signature pages hereof
(such parties collectively, the “Reporting
Persons”).
WHEREAS, each Reporting Person
beneficially owns shares of Common Stock, par value $0.0001 per share (the
“Common Stock”), of
Mandalay Media, Inc. (the “Company”);
WHEREAS, on April 16, 2010, the
Reporting Persons entered into a letter of intent (the “Letter of Intent”) with the
Issuer relating to a restructuring of certain indebtedness owed by the Issuer to
the Reporting Persons;
WHEREAS,
by entering into the Letter of Intent, the Reporting Persons may be deemed to
have formed a “group” (the “Reporting Group”) for purposes
of Section 13(d) of the Exchange Act of 1934, as amended (the “Exchange Act”) and the rules
and regulations promulgated thereunder, and as a result, the Reporting Group may
be deemed to have acquired beneficial ownership of all shares of Common Stock
beneficially owned by the Reporting Persons; and
WHEREAS, each of the Reporting Persons
desires by this Agreement to provide for the joint filing of an amendment (the
“Joint
Schedule 13D/A”) to the Statement on Schedule 13D filed by
Xxxxxxxx Xxxxxxxxx and Xxxxxxxxx McLeitch on April 1, 2010 (as amended from time
to time, including pursuant to the Joint Schedule 13D/A, the “Joint Schedule 13D”) with
respect to the Reporting Persons’ respective beneficial ownership of shares of
Common Stock.
NOW, THEREFORE, the Reporting Persons
hereby agree as follows:
1. Joint
Filing. Pursuant to Rule 13d-1(k) of the Exchange Act,
each of the Reporting Persons shall cooperate to jointly prepare and file the
Joint Schedule 13D/A with respect to their respective beneficial ownership of
shares of Common Stock on behalf of the Reporting Group and all necessary or
appropriate amendments to the Joint Schedule 13D. The Reporting Persons agree
that this Agreement may be included as an exhibit to the Joint Schedule 13D/A
and any amendments thereto, and any amendments to the Joint Schedule 13D may be
filed without the necessity of filing additional joint filing agreements. For
purposes of this Agreement, the terms “beneficial ownership” and “beneficial
owner” shall have the meanings given to them pursuant to Rule 13d-3 of the
Exchange Act.
2. Amendments. Each Reporting Person
agrees that if (a) it or any of its Affiliates takes any action that would
require the Reporting Group to amend the Joint Schedule 13D or (b) any
information concerning such Reporting Person or any of its Affiliates set forth
in the Joint Schedule 13D is or becomes inaccurate in any material respect, such
Reporting Person shall notify the other Reporting Persons no later than one
business day thereafter, and shall cause an appropriate amendment to the Joint
Schedule 13D to be promptly prepared and distributed to the other Reporting
Persons for review. For purposes of this Agreement, the terms
“Affiliate” and “Affiliates” shall have the meanings given to them pursuant to
Rule 12b-2 of the Exchange Act.
3. Reasonable
Opportunity to Review. Each Reporting Person
agrees to provide the other Reporting Persons a reasonable opportunity to review
and comment on each proposed amendment to the Joint Schedule 13D.
4. Information;
Responsibility.
Each
Reporting Person represents and warrants to the other Reporting Persons that the
information concerning such Reporting Person and any of its Affiliates contained
in the Joint Schedule 13D (including the Joint Schedule 13D/A) or any amendment
thereto will be, true, correct and complete in all material respects and in
accordance with all applicable laws.
In
accordance with Rule 13d-1(k) of the Exchange Act, each Reporting Person
shall be responsible for the completeness and accuracy of the information
concerning such Reporting Person contained in the Joint Schedule 13D, but shall
not be responsible for the completeness and accuracy of the information
concerning any other Reporting Person contained therein, unless such Reporting
Person knows or has reason to believe that such information is
inaccurate.
5. Indemnification. Each Reporting Person
agrees to indemnify each other Reporting Person for any losses, claims,
liabilities or expenses (including reasonable legal fees and expenses) resulting
from, or arising in connection with, the breach by such Reporting Person of any
representations, warranties or agreements in this Agreement.
6. Termination;
Survival. Any
Reporting Person may terminate its obligation to continue to jointly file future
amendments to the Joint Schedule 13D by delivering written notice to each other
Reporting Person at least two business days prior to the effective date of such
termination in which case the provisions of this Agreement solely with respect
to such Reporting Person shall terminate; provided that
(x) paragraphs 5, 6, 7, 8 and 9 hereof shall survive such termination and
(y) such Reporting Person shall continue to be subject to its
indemnification obligations under this Agreement for any breach by such
Reporting Person hereunder existing at the time of such termination. In
addition, following the termination by any Reporting Person pursuant to this
Section 6, such Reporting Person shall promptly (and in any event within
one business day after the filing) notify each other Reporting Person in writing
of the filing of any Schedule 13D or amendment thereof with respect to its
or any of its Affiliates’ beneficial ownership of shares of Common Stock.
7. Governing Law;
Jurisdiction; Waiver of Jury Trial. This Agreement will be
governed in all respects by the laws of the State of New York. No suit, action
or proceeding with respect to this Agreement may be brought in any court or
before any similar authority other than in a court of competent jurisdiction in
the State of New York, and the parties to this Agreement submit to the exclusive
jurisdiction of those courts for the purpose of a suit, proceeding or judgment.
Each party to this Agreement irrevocably waives any right it may have had to
bring an action in any other court, domestic or foreign, or before any similar
domestic or foreign authority. Each of the parties to this Agreement irrevocably
and unconditionally waives trial by jury in any legal action or proceeding
(including any counterclaim) in relation to this Agreement.
8. Counterparts;
Facsimile Signatures. This Agreement may be
executed in any number of counterparts, each of which will be an original, but
all of which together will constitute one instrument. This Agreement may be
executed by facsimile or electronically-sent signature(s).
9. Notices. All
notices, requests and other communications hereunder must be in writing and
shall be deemed to have been duly given only if delivered personally against
written receipt or by facsimile transmission or mailed by prepaid first class
mail, return receipt requested, or mailed by overnight courier prepaid to the
parties hereto at the following addresses or facsimile numbers:
If to
Xxxxxxxx Xxxxxxxxx, to:
00
Xxxxxxx Xxxx
Xxxxxxx,
Xxxxxxxxx
XX0 0XX,
Xxxxxx Xxxxxxx
Facsimile:
If to
Xxxxxxxxx McLeitch, to:
Xxxxxxxxx
McLeitch
000
Xxxxxx Xxxxxxx
Xxxxxx
X00 0XX
Facsimile:
If to ValueAct SmallCap Master Fund,
L.P., VA SmallCap
Partners, LLC, ValueAct SmallCap Management, L.P., ValueAct SmallCap Management,
LLC or Xxxxx Xxxxxxxx, to:
c/o
ValueAct SmallCap Master Fund, L.P.
000
Xxxxxxx Xxxxxx, Xxxxxx Xxxxx
Xxx
Xxxxxxxxx, XX 00000
Attention: General
Counsel
Facsimile:
000-000-0000
All such
notices, requests and other communications shall (a) if delivered personally to
the address as provided in this Section 9, be deemed given upon delivery, (b) if
delivered by facsimile transmission to the facsimile number as provided in this
Section 9, be deemed given upon facsimile confirmation, (c) if delivered by mail
in the manner described above to the address as provided in this Section 9, upon
the earlier of the third business day following mailing or upon receipt and (d)
if delivered by overnight courier to the address as provided in this Section 9,
be deemed given on the earlier of the first business day following the date sent
by such overnight courier or upon receipt (in each case regardless of whether
such notice, request or other communication is received by any other person to
whom a copy of such notice is to be delivered pursuant to this Section
9). Any party from time to time may change its address, facsimile
number or other information for the purpose of notices to that party by giving
written notice in the manner provided in this Section 9 specifying such change
to the other Reporting Persons.
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blank]
IN
WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement
as of the date first above written.
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/s/ Xxxxxxxx Xxxxxxxx
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Xxxxxxxx
Xxxxxxxx
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/s/ Xxxxxxxxx XxxXxxxxx
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Xxxxxxxxx
XxxXxxxxx
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ValueAct
SmallCap Master Fund, L.P.,
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By:
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VA
SmallCap Partners, LLC, Its General
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Partner
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By:
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/s/ Xxxxx Xxxxxxxx
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Name:
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Xxxxx Xxxxxxxx
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Title:
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Managing
Member
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VA
SMALLCAP PARTNERS, LLC
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By:
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/s/ Xxxxx Xxxxxxxx
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Name:
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Xxxxx Xxxxxxxx
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Title:
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Managing
Member
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ValueAct
SmallCap Management, L.P.
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By:
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ValueAct
SmallCap Management, LLC,
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Its
General Partner
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By:
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/s/ Xxxxx Xxxxxxxx
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Name:
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Xxxxx Xxxxxxxx
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Title:
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Managing
Member
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ValueAct
SmallCap Management, LLC
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By:
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/s/ Xxxxx Xxxxxxxx
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Name:
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Xxxxx Xxxxxxxx
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Title:
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Managing
Member
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/s/ Xxxxx Xxxxxxxx
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Xxxxx
Xxxxxxxx
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