GUARANTEE AND SECURITY AGREEMENT among TWISTBOX ENTERTAINMENT, INC., NEUMEDIA, INC., EACH OF THE SUBSIDIARIES PARTY HERETO, THE INVESTORS PARTY HERETO, and TRINAD CAPITAL MANAGEMENT, LLC, as Collateral Agent Dated as of June 21, 2010Guarantee and Security Agreement • June 23rd, 2010 • NeuMedia, Inc. • Patent owners & lessors • California
THIS GUARANTEE AND SECURITY AGREEMENT IS SUBJECT TO THE TERMS OF, THE SUBORDINATION AGREEMENT, DATED AS OF JUNE 21, 2010, AS THE SAME MAY BE AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, BY AND AMONG TRINAD CAPITAL MASTER FUND, LTD., AS AGENT, VALUEACT SMALLCAP MASTER FUND, L.P., AS SUBORDINATED CREDITOR, AND EACH OF THE COMPANY AND TWISTBOX ENTERTAINMENT, INC., AS OBLIGOR AND ALL OTHER PARTIES THERETO.
ValueAct SmallCap Master Fund, L.P. San Francisco, CA 94133NeuMedia, Inc. • June 23rd, 2010 • Patent owners & lessors • Delaware
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”), Jonathan Cresswell (“Cresswell”), Nathaniel MacLeitch (including in his capacity as Trustee for the AMV Founders under the AMV Note (each as defined below) “MacLeitch”), Robert Ellin (“Ellin”), Trinad Management, LLC (“Trinad Management”) and Trinad Capital Master Fund, Ltd.(“Trinad Fund” and together with Ellin and Trinad Management, the “Trinad Affiliates”) and the Guber Family Trust (“Guber” and, together with the Trinad 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,
SUBORDINATION AGREEMENTSubordination Agreement • June 23rd, 2010 • NeuMedia, Inc. • Patent owners & lessors • California
This Subordination Agreement is made as of June 21, 2010, by and between TRINAD CAPITAL MASTER FUND, LTD., (together with its successors and assigns in such capacity, the “First Lien Agent”), having a business address at 2121 Avenue of the Stars, Suite 2550, Los Angeles, CA 90067, acting in its capacity as agent for the First Lien Creditors (as defined below) and VALUEACT SMALLCAP MASTER FUND, L.P., having a business address at 435 Pacific Avenue, 4th Floor, San Francisco, CA 94133 (together with its successors and assigns, “Subordinated Creditor”), and each of NeuMedia, Inc. (f/k/a Mandalay Media, Inc.), a Delaware corporation, with its principal place of business at 2121 Avenue of the Stars, Suite 2550, Los Angeles, CA 90067 (“First Lien Borrower”) and Twistbox Entertainment, Inc., a Delaware corporation with its principal place of business at 14242 Ventura Boulevard, Third Floor, Sherman Oaks, CA 91423 and a wholly-owned subsidiary of First Lien Borrower (“Second Lien Borrower,” and
NON-COMPETITION AGREEMENTNon-Competition Agreement • June 23rd, 2010 • NeuMedia, Inc. • Patent owners & lessors • England and Wales
affiliate: shall have the meaning ascribed to such term in Rule 405 under the Securities Act of 1933 of the United States of America, as amended.
AMENDED AND RESTATED GUARANTYGuaranty • June 23rd, 2010 • NeuMedia, Inc. • Patent owners & lessors • Delaware
This Amended and Restated Guaranty (this “Guaranty”) is given as of June 21, 2010, by NEUMEDIA, INC. formerly known as Mandalay Media, Inc., a Delaware corporation (the “Guarantor”) to VALUEACT SMALLCAP MASTER FUND, L.P. (“ValueAct”).
ContractLetter Agreement • June 23rd, 2010 • NeuMedia, Inc. • Patent owners & lessors
ValueAct SmallCap Master Fund, L.P.NeuMedia, Inc. • June 23rd, 2010 • Patent owners & lessors • Delaware
Reference is made to that certain Letter Agreement, dated as of the date hereof (the “Restructuring Agreement”), between ValueAct SmallCap Master Fund, L.P. (“VAC”), NeuMedia, Inc., formerly known as Mandalay Media, Inc. (“NeuMedia”), Jonathan Cresswell, Nathaniel MacLeitch and the other parties thereto. Capitalized terms used herein and not otherwise defined herein have the meanings ascribed to such terms by the Restructuring Agreement.
ContractNeuMedia, Inc. • June 23rd, 2010 • Patent owners & lessors • California
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED, OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS.
MUTUAL RELEASE AGREEMENTMutual Release • June 23rd, 2010 • NeuMedia, Inc. • Patent owners & lessors • Delaware
MUTUAL RELEASE (this “Mutual Release”), dated as of June 21, 2010 and effective as of the Closing (as defined under the Letter Agreement (as defined below)), among ValueAct SmallCap Master Fund, L.P., a limited partnership organized under the laws of the British Virgin Islands (“VAC”), Antiphony (Management Holdings) Limited, a private limited company organized under the laws of England and Wales (“Newco”), Nathaniel MacLeitch (“MacLeitch”), Jonathan Cresswell (“Cresswell” and, together with VAC, Newco and MacLeitch, the “VAC/AMV Founders Parties”), NeuMedia, Inc., a Delaware corporation (f/k/a Mandalay Media, Inc.) (“NeuMedia”), Twistbox Entertainment, Inc., a Delaware corporation (“Twistbox”), each of Peter Guber, Robert Ellin, Paul Schaeffer, Adi McAbian, Richard Spitz, Ray Schaaf, Keith McCurdy, Russell Burke and James Lefkowitz (collectively, the “NeuMedia/AMV Directors”), and Trinad Management, LLC, a Delaware limited liability company (“Trinad” and together with NeuMedia, Twistb
