Attached files
| file | filename |
|---|---|
| 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-10.2 - Digital Turbine, Inc. | v188837_ex10-2.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 |
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d)
of
the Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported): June 21, 2010
NeuMedia,
Inc.
(Exact
name of registrant as specified in its charter)
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Delaware
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00-10039
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22-2267658
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(State or other jurisdiction
of incorporation)
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(Commission File Number)
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(IRS Employer
Identification No.)
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2000
Avenue of the Stars, Suite 410
Los
Angeles, CA 90067
(Address
of principal executive offices and zip code)
Registrant’s
telephone number, including area code: (310) 601-2500
(Former
name or former address, if changed since last report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General
Instruction A.2. below):
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¨
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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¨
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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¨
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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¨
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item
1.01. Entry into a Material Definitive
Agreement
As
previously disclosed, on May 10, 2010, Twistbox Entertainment, Inc. (“Twistbox”), a wholly
owned subsidiary of NeuMedia, Inc. (the “Company”), received
from ValueAct SmallCap Master Fund, L.P. (“VAC”) a Notice of
Event of Default and Acceleration (“Notice”). In the
Notice, VAC stated that an event of default occurred under that certain Senior
Secured Note, as amended, in favor of VAC dated July 30, 2007 and due July 31,
2010 (the “VAC
Note”) as a result of Twistbox’s and the Company’s failure to comply with
the cash balance covenant under the VAC Note and, therefore, VAC accelerated all
outstanding amounts payable by Twistbox under the VAC Note. The VAC Note was
secured by, among other things, the assets of AMV Holding Limited, a wholly
owned subsidiary of the Company (“AMV”), which was also
a guarantor of the Note. In connection with the Notice, VAC
instituted an administration proceeding in the United Kingdom against
AMV.
On June
21, 2010, the Company signed and closed the transactions contemplated by a
binding agreement (the “Agreement”) with
VAC, 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”) with regard to the (i) partial satisfaction of the VAC Note,
and (ii) satisfaction of that certain Secured Promissory Note issued by NeuMedia
and held by Cresswell, MacLeitch and certain other former shareholders of AMV
(together with their affiliates the “AMV Founders”), as
amended (the “AMV
Note”).
Sale
of AMV
Pursuant
to the Agreement, VAC and the AMV Founders, acting through a newly formed
company (“NewCo”), acquired the
operating subsidiaries of AMV (the “Assets”) in exchange
for the release of US$23 million of secured indebtedness (the “Sale”), comprising of
a release of all amounts due and payable under the AMV Note and all of the
amounts due and payable under the VAC Note except for US$3.5 million in
principal. The Company retained all assets and liabilities of Twistbox and the
Company other than the Assets.
In
connection with the Sale and the other transactions contemplated by the
Agreement and the transaction documents set forth in the Agreement (the “Restructure”), (i)
the VAC Note (as amended and restated, the “Amended VAC Note”),
(ii) that certain Guarantee and Security Agreement, dated as of June 30, 2007,
by and among the Company, the subsidiary guarantors party thereto, the investors
party thereto and VAC and (iii) that certain Guaranty, given as of February 12,
2008, by the Company to VAC (as amended and restated, the “Amended and Restated
Guaranty”), were amended and restated in their entirety.
New
Senior Secured Notes
In
addition, for purposes of capitalizing the Company, the Company sold and issued
US$2.5 million of Senior Secured Convertible Notes due June 21, 2013 of the
Company (the “New
Senior Secured Notes”) to the Lead Participating
Investors. The New Senior Secured Notes have a three year term and
bear interest at a rate of 10% per annum payable in arrears semi-annually.
Notwithstanding the foregoing, at any time on or prior to the 18th month
following the original issue date of the New Senior Secured Notes, the Company
may, at its option, in lieu of making any cash payment of interest, elect that
the amount of any interest due and payable on any interest payment date on or
prior to the 18th month following the original issue date of the New Senior
Secured Notes be added to the principal due under the New Senior Secured Notes.
The accrued and unpaid principal and interest due on the New Senior Secured
Notes are convertible at any time at the election of the holder into shares of
common stock of the Company at a conversion price of US$0.15 per share, subject
to adjustment. The New Senior Secured Notes are secured by a first lien on
substantially all of the assets of the Company and its subsidiaries pursuant to
the terms of that certain Guarantee and Security Agreement, dated as of June 21,
2010, among Twistbox, the Company, each of the subsidiaries thereof party
thereto, the investors party thereto and Trinad Management. The Amended VAC Note
is subordinated to the New Senior Secured Notes pursuant to the terms of that
certain Subordination Agreement, dated as of June 21, 2010, by and between
Trinad Fund, and VAC, and each of the Company and Twistbox.
Each
purchaser of a New Senior Secured Note also received a warrant (“Warrant”) to purchase
shares of common stock of the Company at an exercise price of US$0.25 per share,
subject to adjustment. For each $50,000 of New Senior Secured Notes
purchased, the purchaser received a Warrant to purchase 166,667 shares of common
stock of the Company. Each Warrant has a five year term.
The New
Senior Secured Notes and Warrants were sold and issued in a transaction exempt
from registration under the Securities Act of 1933, as amended (the “Securities Act”),
pursuant to Section 4(2) of the Securities Act.
Under the
Agreement, certain significant stockholders of the Company have the right to
purchase up to an aggregate US$600,000 of the New Senior Secured
Notes.
Other
Agreements
In
addition to the agreements described above, the Company has entered into certain
other agreements in connection with the Restructure, including, without
limitation, the following agreements:
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·
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Mutual
Release, dated as of June 13, 2010, among VAC, NewCo, MacLeitch,
Cresswell, the Company, Twistbox, Peter Guber, Ellin, Paul Schaeffer, Adi
McAbian, Ray Schaaf, Russell Burke, James Lefkowitz and Trinad Management,
pursuant to which the parties released certain known and unknown claims
which they may have against each
other.
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·
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Non-Competition
Agreement, dated as of June 21, 2010, among the Company,
NewCo, Cresswell and MacLeitch, pursuant to which NewCo,
Cresswell and MacLietch covenanted to refrain from engaging in certain
business activities involving Midstream Media International, N.V., or
certain of its affiliates, for a three year period, subject to earlier
termination under certain
circumstances.
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·
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Letter
Agreement, dated as of June 21, 2010, between VAC, the Company, Ellin and
Trinad Management, pursuant to which the parties agreed as
follows:
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o
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If
(i) an Insolvency Event (as defined therein) with respect to the Company
or its subsidiaries occurs, (ii) the Company is in material default under
the Amended and Restated Guaranty, which default has not been cured after
any applicable cure period, or (iii) Twistbox is in material default under
the Amended VAC Note, which default has not been cured after any
applicable cure period, then Ellin will immediately resign from all
positions as an officer or director of the Company or any of its
subsidiaries and shall not thereafter serve as an officer or director of
the Company or any of its subsidiaries until such time as the Amended VAC
Note has been paid in full.
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o
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Until
such time as the Amended VAC Note has been repaid in cash in full, Trinad
Management, shall not elect to treat (nor accept any liquidation
preference or other payment in connection with) any of the following
transactions as a dissolution or winding up of the Company for purposes of
Section 5 of the Certificate of Incorporation of the
Company (and the Company will not pay Trinad Management any
liquidation preference or other payment in connection with): (i) any
conversion of all or any portion of any New Senior Secured Note into
common stock of the Company; (ii) the exercise of any Warrant and the
issuance of any shares of capital stock of the Company in respect of such
exercise, (iii) the issuance of any capital stock or options, rights or
warrants to purchase capital stock of the Company to Ellin, Trinad
Management, Peter Guber, Paul Schaeffer or any of their respective
affiliates.
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o
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The
Company shall use best efforts to obtain all necessary consents and
shareholder approvals to, not later than September 21, 2010, amend Section
5 of the Certificate of Incorporation of the Company to provide that the
transactions described in the immediately preceding paragraph shall not be
treated as a dissolution or winding up of the Company (the “Charter
Amendment”). Trinad Management and Ellin shall cause to be voted
all shares of capital stock held by them in favor of such
amendment.
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o
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Until
such time as the Amended VAC Note has been repaid in cash in full, none of
Ellin, Trinad Management or the Company shall recommend or approve any
amendment, modification or waiver of the Certificate of Incorporation of
the Company if such action would result in (i) any change in the economic
or other rights, preferences or privileges of the Series A Preferred Stock
of the Company or (ii) the creation or issuance of any capital stock of
the Company other than common stock or preferred stock that has no cash
dividend or payment required to be
made.
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o
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Until
such time as the Amended VAC Note has been repaid in cash in full, the
Company shall not issue any additional shares of Series A Preferred
Stock.
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o
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Until
the earlier of the effective date of the Charter Amendment and such time
as the Amended VAC Note has been repaid in cash in full, Trinad Management
shall not sell, encumber, mortgage, hypothecate, assign, pledge transfer
or otherwise dispose of, directly or indirectly, any shares of Series A
Preferred Stock of the Company held by Trinad Management as of June 21,
2010; provided however, this shall not prohibit conversion of the Series A
Preferred Stock into common stock of the
Company.
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The above
descriptions of the agreements relating to the Restructure and the transactions
contemplated therein do not purport to be complete and are qualified in their
entirety by reference to the full texts of the agreements attached hereto as
exhibits.
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Item 1.02.
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Termination
of a Material Definitive Agreement
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The
information set forth in Item 1.01 of this Current Report on Form 8-K
is incorporated herein by reference.
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Item 2.01.
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Completion
of Acquisition or Disposition of
Assets
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The
information set forth in Item 1.01 of this Current Report on Form 8-K
is incorporated herein by reference.
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Item 2.03.
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Creation
of a Direct Financial Obligation or an Obligation under an Off-Balance
Sheet Arrangement of a Registrant
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The
information set forth in Item 1.01 of this Current Report on Form 8-K
is incorporated herein by reference.
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Item 3.02.
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Unregistered
Sales of Equity Securities
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The
information set forth in Item 1.01 of this Current Report on Form 8-K
is incorporated herein by reference.
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Item
9.01.
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Financial
Statements and Exhibits.
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(d) Exhibits.
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Exhibit
Number
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Description
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4.1
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Form
of Warrant
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10.1
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Agreement,
dated as of June 21, 2010, between ValueAct SmallCap Master Fund, L.P.,
NeuMedia, Inc., Jonathan Cresswell, Nathaniel MacLeitch, Robert Ellin,
Trinad Management, LLC, Trinad Capital Master Fund, Ltd. and the Guber
Family Trust.
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10.2
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Mutual
Release, dated as of June 21, 2010, among ValueAct SmallCap Master Fund,
L.P., Antiphony (Management Holdings) Limited, Nathaniel MacLeitch,
Jonathan Cresswell, NeuMedia, Inc., Twistbox Entertainment, Inc., Peter
Guber, Robert Ellin, Paul Schaeffer, Adi McAbian, Richard Spitz, Ray
Schaaf, Keith McCurdy, Russell Burke, James Lefkowitz and Trinad
Management.
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10.3
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Subordination
Agreement, dated as of June 21, 2010, by and between Trinad Capital Master
Fund, Ltd., and ValueAct SmallCap Master Fund, L.P., and each of NeuMedia,
Inc. and Twistbox Entertainment, Inc.
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10.4
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Deed
Poll Release, dated as of June 21, 2010, between NeuMedia, Inc., Twistbox
Entertainment, Inc., James Lefkowitz and Russell Burke.
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10.5
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Non-Competition
Agreement, dated as of June 21, 2010, among NeuMedia, Inc., Antiphony
(Management Holdings) Limited, Jack Cresswell and Nate
MacLeitch.
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10.6
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Earn-Out
Termination Letter Agreement, dated as of June 21, 2010, among ValueAct
SmallCap Master Fund, L.P., NeuMedia, Inc., Jonathan Cresswell, Nathaniel
MacLeitch and certain other parties.
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10.7
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Amended
and Restated Senior Subordinated Secured Note due June 21, 2013, by
Twistbox Entertainment, Inc. in favor of ValueAct SmallCap Master Fund,
L.P.
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10.8
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Amended
and Restated Guaranty, dated as of June 21, 2010, by NeuMedia, Inc. to
ValueAct SmallCap Master Fund, L.P.
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10.9
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Letter
Agreement, dated as of June 21, 2010, between ValueAct SmallCap Master
Fund, L.P., NeuMedia, Inc., Rob Ellin and Trinad Management,
LLC.
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10.10
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Amended
and Restated Guarantee and Security Agreement, dated as of June 21, 2010,
among Twistbox Entertainment, Inc., NeuMedia, Inc. and each of its
subsidiaries identified on Schedule I as being a subsidiary guarantor, the
investors party thereto and ValueAct SmallCap Master Fund,
L.P.
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10.11
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Form
of Senior Secured Convertible Note due June 21, 2013
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10.12
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Guarantee
and Security Agreement, dated as of June 21, 2010, among Twistbox
Entertainment, Inc., NeuMedia, Inc., each of the subsidiaries thereof
party thereto, the investors party thereto and Trinad Capital Management,
LLC.
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SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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NeuMedia,
Inc.
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Date:
June 22, 2010
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By:
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/s/
Ray Schaaf
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Ray
Schaaf
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President
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