Attached files
| file | filename |
|---|---|
| 8-K - Digital Turbine, Inc. | v188837_8k.htm |
| EX-4.1 - Digital Turbine, Inc. | v188837_ex4-1.htm |
| EX-10.1 - Digital Turbine, Inc. | v188837_ex10-1.htm |
| EX-10.7 - Digital Turbine, Inc. | v188837_ex10-7.htm |
| EX-10.8 - Digital Turbine, Inc. | v188837_ex10-8.htm |
| EX-10.6 - Digital Turbine, Inc. | v188837_ex10-6.htm |
| EX-10.4 - Digital Turbine, Inc. | v188837_ex10-4.htm |
| EX-10.3 - Digital Turbine, Inc. | v188837_ex10-3.htm |
| EX-10.5 - Digital Turbine, Inc. | v188837_ex10-5.htm |
| EX-10.9 - Digital Turbine, Inc. | v188837_ex10-9.htm |
| EX-10.11 - Digital Turbine, Inc. | v188837_ex10-11.htm |
| EX-10.12 - Digital Turbine, Inc. | v188837_ex10-12.htm |
| EX-10.10 - Digital Turbine, Inc. | v188837_ex10-10.htm |
EXECUTION
COPY
MUTUAL RELEASE
AGREEMENT
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, Twistbox and the NeuMedia/AMV Directors, the “NeuMedia Parties”)
(each a “Party”
and collectively, the “Parties”).
WHEREAS, certain of the VAC/AMV
Founders Parties, NeuMedia, an affiliate of Peter Guber and Trinad have entered
into that certain Letter Agreement, dated as of the date hereof (the “Letter Agreement”);
and
WHEREAS, as part of the transactions
contemplated by the Letter Agreement and the other Transaction Documents, the
Parties wish to release certain known and unknown claims which they may have
against each other.
NOW, THEREFORE, in consideration of the
promises and the representations, warranties, covenants and agreements contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereto agree as
follows:
1. Defined
Terms. Capitalized terms used herein but not otherwise defined
herein shall have the respective meanings ascribed to such terms in the Letter
Agreement.
2. Effectiveness. This
Mutual Release shall become immediately and automatically effective without any
further action by the Parties upon the Closing. In the event of a
termination of the Letter Agreement pursuant to Section 10 of the Letter
Agreement, this Mutual Release shall be void and of no force and effect ab initio.
3. Release by the VAC/AMV
Founders Parties. In partial consideration of the benefits
received by it/him pursuant to the Letter Agreement, each VAC/AMV Founders
Party, on behalf of itself/himself and each of its/his respective Related
Parties (as defined below) (collectively, the “VAC/AMV Founders Releasing
Parties”) hereby releases, acquits and forever discharge the NeuMedia
Parties and their respective Related Parties (other than, in the case of
NeuMedia, AMV and its subsidiaries and its and their respective directors,
officers, employees, partners, equityholders, representatives, attorneys,
financial advisors, accountants and other professional advisors and agents and
each of its and their respective successors and assigns) (collectively, the
“NeuMedia Released
Parties”) from any and all claims, obligations, suits, judgments,
Damages, rights and causes of action whatsoever, whether known or unknown,
foreseen or unforeseen, existing or hereafter arising, in law, equity or
otherwise (“Claims”), based in
whole or in part on any act, omission, transaction or occurrence from the
beginning of time through the Closing arising from or relating to any aspect of
the dealings or relationships between or among any VAC/AMV Founders Releasing
Party, on the one hand, and any NeuMedia Released Party, on the other hand (the
“Released
Matters”); provided, however, that (x) nothing
contained herein shall operate to release any NeuMedia Released Party from any
act or omission that constitutes fraud and (y) the foregoing release shall not
apply to any obligations arising under, in connection with or contemplated by
the Letter Agreement or any other Transaction Document. “Related Parties”
means, with respect to any Party, such Party’s affiliates and its and their
respective directors, officers, employees, partners, equityholders,
representatives, attorneys, financial advisors, accountants and other
professional advisors and agents and each of its and their respective successors
and assigns.
4. Release by the NeuMedia
Parties. In partial consideration of the direct and indirect
benefits received by it/him pursuant to the Letter Agreement, each NeuMedia
Party on behalf of itself/himself and each of its/his respective Related Parties
(collectively, the “NeuMedia Releasing
Parties”) hereby releases, acquits and forever discharge the VAC/AMV
Founders Parties and each of their respective Related Parties (collectively, the
“VAC/AMV Founders
Released Parties”) from any and all Claims based in whole or in part on
any Released Matters; provided, however, that (x) nothing
contained herein shall operate to release any VAC/AMV Founders Released Party
from any act or omission that constitutes fraud and (y) the foregoing release
shall not apply to any obligations arising under, in connection with or
contemplated by the Letter Agreement or any other Transaction
Document.
5. Unknown
Claims. The Parties are aware that they may hereafter discover
claims or facts in addition to or different from those the Parties now know or
believe to be true with respect to the matters addressed by this Mutual
Release. Nevertheless, it is the intention of the VAC/AMV Founders
Parties and the NeuMedia Parties, on behalf of themselves and their respected
Related Parties, to fully, finally and forever settle and release all such
matters, whether known or unknown, suspected or unsuspected, that now exist, may
exist or heretofore have existed.
6. Letter
Agreement. Notwithstanding anything in this Mutual Release to
the contrary, nothing herein shall be deemed to release, waive, modify, amend or
otherwise affect the rights, duties, obligations or liabilities of parties to
the Letter Agreement.
7. Independent
Counsel. The Parties have consulted with legal counsel prior
to signing this Mutual Release, and execute this Mutual Release voluntarily,
with the intention of fully and finally extinguishing the Released
Matters.
2
8. No Benefit to Third
Parties. Nothing in this Mutual Release, express or implied,
is intended to confer upon any Person other than the VAC/AMV Founders Released
Parties and the NeuMedia Released Parties (which are express third party
beneficiaries hereof) or their respective successors or permitted assigns, any
right or remedy under or by reason of this Mutual Release.
9. Further
Assurances. Subject to the other provisions of this Mutual
Release, the Parties hereto agree to execute, acknowledge and deliver such
further documents, and do all such other acts and things, as may be required by
law or as may be necessary, advisable or convenient to carry out the intent and
purpose of this Mutual Release.
10. No
Admission. Nothing contained herein shall be construed as an
admission by any of the Parties of any liability of any kind to any of the other
Parties or to any other Person, all such liability being expressly
denied.
11. Amendment and
Waiver. This Mutual Release may not be amended except by an
instrument in writing signed on behalf of each of the Parties.
12. Governing
Law. This Mutual Release shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to any
choice of law or conflict of law provision or rule that would cause the
application of the laws of any jurisdiction other than the State of
Delaware.
13. Jurisdiction; Service of
Process. The Parties agree that any suit, action or proceeding
seeking to enforce any provision of, or based on any matter arising out of or in
connection with, this Mutual Release shall be brought exclusively in federal or
state courts located in Wilmington, Delaware, and each of the Parties
irrevocably submits to the exclusive jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding
and irrevocably waives, to the fullest extent permitted by law, any objection
that it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding in any such court or that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient
forum. The Parties agree that any or all of them may file a copy of
this Section 13 with any court as written evidence of the knowing, voluntary and
bargained agreement among the Parties irrevocably to waive any objections to
jurisdiction, venue or convenience of forum. Process in any
proceeding referred to in this Section 13 may be served on any Party anywhere in
the world and service via registered U.S. mail (or other equivalent) shall be
deemed sufficient service in any such suit, action or proceeding.
14. WAIVER OF JURY
TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATED TO THIS MUTUAL RELEASE.
15. Headings. The
section headings, titles and subtitles used in this Mutual Release are solely
for convenience and shall not be used in interpreting this Mutual Release and
shall not be construed in any way to limit, modify or affect the terms of this
Mutual Release.
3
16. Counterparts. This
Mutual Release may be executed in any number of counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument. Delivery of an executed counterpart of a
signature page to this Mutual Release by facsimile or PDF shall be effective as
delivery of a manually executed counterpart to this Mutual Release.
17. Mutual
Drafting. None of the Parties shall be considered the drafter
of this Mutual Release for the purpose of any statue, case law or rule of
interpretation or construction that would or might cause any provision to be
construed against the drafter.
[SIGNATURE
PAGES FOLLOW]
4
IN WITNESS WHEREOF, the Parties have caused this
Mutual Release to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
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VAC:
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VALUEACT
SMALLCAP MASTER
FUND,
L.P.
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By:
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Name:
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Title:
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MacLeitch
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Nathaniel
MacLeitch
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Cresswell:
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Jonathan
Cresswell
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NeuMedia:
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NEUMEDIA,
INC.
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By:
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Name:
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Title:
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Twistbox:
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TWISTBOX
ENTERTAINMENT, INC.
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By:
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Name:
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Title:
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NeuMedia/AMV
Directors:
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Peter
Guber
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Robert
Ellin
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Paul
Schaeffer
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Signature
Page to Mutual Release Agreement
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Adi
McAbian
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Richard
Spitz
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Ray
Schaaf
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Keith
McCurdy
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Russell
Burke
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James
Lefkowitz
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Trinad:
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TRINAD MANAGEMENT, LLC | |
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By:
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Name:
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Title:
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Signature
Page to Mutual Release Agreement
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Newco:
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ANTIPHONY
(MANAGEMENT
HOLDINGS)
LIMITED
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By:
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Name: Allison
Bennington
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Title: Director
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Signature
Page to Mutual Release Agreement