Attached files
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| 8-K - NEOMEDIA TECHNOLOGIES INC | v205602_8k.htm |
Exhibit
10.1
CONFIDENTIAL SETTLEMENT
AGREEMENT
This Confidential Settlement Agreement
(this “Agreement”) is
entered into this 14th day of
December, 2010 by and among Rothschild Trust Holdings, LLC, a Florida limited
liability company (“Rothschild
Trust”) and BP GBL Section 3.4, LLC,
a Florida limited liability company (“BP GBL” and with Rothschild
Trust, collectively the “Rothschild Parties”), first
party and NeoMedia Technologies, Inc., a Delaware corporation (“NeoMedia”), second
party. The Rothschild Parties and NeoMedia are referred to
herein as the Parties.
RECITALS
WHEREAS, NeoMedia purchased
from Loyaltypoint, Inc. (“Loyaltypoint”) its rights,
title and interest in United States Patents 6,430,554; 6,651,053; 6,675,165 and
6,766,363 and all related foreign and domestic patents and patent applications
(but which did not include United States Patent No. 6,101,534 which was not
owned by Loyaltypoint), including reissues, reexaminations, extensions,
continuations, continuations in part, continuing prosecution applications and
divisions of such patents and applications and provisional patent applications
that were or would be continuations or continuations in part of such patent and
applications, and foreign counterparts to any of the foregoing including but not
limited to utility models (“Loyaltypoint Patents”)
pursuant to the Patent Purchase Agreement dated April 8, 2005 (“Patent Purchase
Agreement”);
WHEREAS, Loyaltypoint retained
the right to a royalty equal to ten (10%) percent of the License Revenue for a
period of ten (10) years from the date of the Agreement as defined in Section
3.3 of the Patent Purchase
Agreement, and a Grant-back License as defined by Section
3.4 of the Patent Purchase
Agreement (collectively, the “Loyaltypoint
Rights”);
WHEREAS, Loyaltypoint
subsequently declared bankruptcy, and Rothschild Trust purchased the
Loyaltypoint
Rights.
WHEREAS, Rothschild Trust
assigned all of its rights and interest in the Loyaltypoint Rights to BP GBL;
WHEREAS, Rothschild Trust
specifically represents that it has not assigned some or any of its
rights and interest in the Loyaltypoint Rights to any
other entity or individual other than to BP GBL;
WHEREAS, Rothschild Trust filed a
complaint against NeoMedia in Miami-Dade County,
Florida (Case No. 08-45049 CA 20), seeking monetary relief for NeoMedia’s alleged failure to
pay royalties under the Loyaltypoint Rights (“Lawsuit”);
WHEREAS, NeoMedia denied, and does
deny, all of the allegations set forth by the Rothschild Trust in the Lawsuit; and
WHEREAS, for purposes of
avoiding costly litigation and in order to reach an amicable resolution of the
potential claims and disputes by and among the Parties, the Parties desire to compromise
fully, and finally settle and resolve all disputes among them, including those
relating to the Lawsuit.
NOW, THEREFORE, in
consideration of the promises, the performance of the covenants and agreements
hereinafter contained, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Parties to this Agreement hereby represent,
warrant, consent and agree as follows:
1. Adoption
of Recitals. The Parties hereto adopt the above
recitals as being true and correct, and they are incorporated herein as material
parts of this Agreement.
2. Settlement
Benefits.
A. NeoMedia agrees to deliver
shares of its common stock to BP GPL in accordance with the
terms set forth on Exhibit
1 attached hereto and made a part hereof.
B. Assignment of
Loyaltypoint Rights and Loyaltypoint Patents by Rothschild Trust, BP GBL and
Rothschild to NeoMedia. Rothschild Trust, BP GBL and
Leigh M. Rothschild, individually (“Rothschild”) hereby assign
to NeoMedia all rights,
title and interest they have in the Loyaltypoint Rights and
the Loyaltypoint Patents
to NeoMedia. For
clarification purposes, the Parties hereto hereby
acknowledge and agree that neither the Rothschild Parties nor Rothschild are transferring
any rights, title or interest in and to United States Patent No.
6,101,534.
C. Execution of
Assignment. In order to record in the United States Patent and
Trademark Office (“USPTO”) the Assignment of the
Loyaltypoint Rights as set forth in Section 2(B) hereof, and to resolve any
issues arising from the recordation of the “Loyaltypoint Sale Document”
(as hereinafter defined) at the USPTO, Rothschild Trust, BP GBL and Rothschild agree to execute
the Assignment attached
hereto as Exhibit
2 to this Agreement. The
Assignment shall be
fully executed and delivered to NeoMedia’s counsel upon the
full execution of this Agreement. NeoMedia’s counsel
shall hold the Assignment
in escrow until each party constituting the “Rothschild Group” (as defined on Exhibit
1 attached hereto) receives the “Settlement Shares” (as defined on Exhibit
1 attached hereto) in accordance with Section 2(A) of this Agreement. The
"Loyaltypoint Sale
Document" means the Bill of Sale between Edwin K. Palmer, Chapter 7
Trustee of the Bankruptcy Estate of Loyaltypoint, Inc., and Rothschild Trust
Holdings, LLC, dated Oct. 2, 2007, and recorded July 17, 2008 at USPTO Reel
021243/Frame 0674.
D. Stipulation of
Dismissal with Prejudice. Within five (5)
days after the parties constituting the Rothschild Group receive the
Settlement Shares, NeoMedia shall file with the
Court a Joint Stipulation of Dismissal, with prejudice, of the Lawsuit, with
each Party to bear its
own fees and costs, a copy of which is attached hereto as Exhibit
3. A signed Joint Stipulation of Dismissal shall be delivered
to NeoMedia’s counsel
upon execution of this Agreement, to hold in escrow until five (5) days after
the parties constituting the Rothschild Group receive the
Settlement
Shares.
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E. ICAP Ocean Tomo
LLC. The Rothschild Parties shall have
sole responsibility to pay all commissions, fees or any other monies owed to
ICAP Ocean Tomo LLP in connection with ICAP Ocean Tomo Auction - Lot 54 - BP GBL
Section 3.4, LLC. All monies owed ICAP Ocean Tomo LLP must be paid in
full, and the Rothschild
Parties must deliver a full general release from ICAP Ocean Tomo LLC, a
copy of which is attached hereto as Exhibit
4, to NeoMedia’s
counsel upon execution of this Agreement. NeoMedia’s counsel shall hold
such general release in escrow until five (5) days after the parties
constituting the Rothschild
Group receive the Settlement
Shares. The Rothschild Parties
specifically agree that NeoMedia will have no
obligation to deliver any Settlement Shares in
accordance with Section 2(A) above until five (5) business days after the Rothschild Parties fulfill
their obligations pursuant to this Section 2(E).
3. Release by the
Parties.
A. Rothschild
Parties’ and Rothschild Release to NeoMedia. Rothschild
Parties, their successors, assigns, agents, officers, shareholders,
members, parents and subsidiaries and Rothschild (collectively “3A Releasors”) unconditionally and
irrevocably release NeoMedia,
its successors, assigns, employees, officers, directors, shareholders,
agents, parents and subsidiaries (collectively “3A Releasees”) from all known or
unknown claims, debts, liabilities, breaches of contract, compensation, claims
for profits, claims for expenses, demands, damages, actions, causes of action,
or suits of any kind or nature whatsoever, if any, that the 3A Releasors presently have,
for any event, occurrence, or omission that has occurred from the beginning of
the world with respect to the Loyaltypoint Rights, as well
as the Loyaltypoint
Patents. This Release includes, but is not limited to, any
claims that were raised, or could have been raised in the Lawsuit, all rights, claims
and interest in the Loyaltypoint Rights (including
but not limited to (i) the rights in the Grant-back license set forth in section
3.4 of the Patent Purchase
Agreement and (ii) the rights in the royalties set forth in section 3.3
of the Patent Purchase
Agreement), and with respect to the
Loyaltypoint
Rights, all
losses, debts, liabilities, breaches, claims and causes of action based on
breach of contract, accounting, misrepresentation, fraud, property damage,
personal injury, disclosure of trade secrets and proprietary information,
conflicts of interest, tortious interference, breach of fiduciary duties,
demands, costs, loss of services, expenses, compensation, contribution,
attorneys’ fees, and all compensatory, consequential, liquidated, special and
punitive damages. The Rothschild Parties and Rothschild acknowledge that
NeoMedia has relied on
the representations and promises in this Agreement and this
Release (described herein in Section 3) in agreeing to the Settlement
Benefits (described above in Section 2(A).)
B. NeoMedia’s
Release to the Rothschild Parties and Rothschild. NeoMedia, its
successors, assigns, agents, officers, shareholders, members, parents,
subsidiaries and otherwise related individuals and entities (collectively “3B Releasors”) unconditionally and
irrevocably release the Rothschild Parties, their
successors, assigns, agents, employees, shareholders, members, managers,
parents, subsidiaries, officers and directors, as well as Rothschild (collectively “3B Releasees”) from all known
or unknown claims, debts, liabilities, breaches of contract, compensation,
claims for profits, claims for expenses, demands, damages, actions, causes of
action, or suits of any kind or nature whatsoever, if any, that 3B Releasors presently have or
could have, for any event, occurrence, or omission that has occurred from the
beginning of the world with respect to the Loyaltypoint Rights, as well as the
Loyaltypoint Patents. This Release includes,
but is not limited to, any claims that were raised, or could have been raised in
the Lawsuit, and all losses, debts,
liabilities, breaches, claims and causes of action based on breach of contract,
accounting, misrepresentation, fraud, property damage, personal injury,
disclosure of trade secrets and proprietary information, conflicts of interest,
tortious interference, breach of fiduciary duties, demands, costs, loss of
services, expenses, compensation, contribution, attorneys’ fees, and all
compensatory, consequential, liquidated, special and punitive damages. NeoMedia
acknowledges that the Rothschild Parties and Rothschild relied on the
representations and promises in this Agreement and this
Release (described herein in Section 3) in agreeing to the
Settlement Benefits (described above in Section 2(B) and (C).)
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4. Representations,
Warranties and Indemnification – Rothschild Trust, BP GBL and
Rothschild. Rothschild Trust, BP GBL and Rothschild represent and
warrant that BP GBL
holds its rights and interest in the Loyaltypoint Rights totally
free and clear, unencumbered by claims, licenses, options, rights or other
interests of other parties. Rothschild Trust and Rothschild represent and
warrant that they have no right and/or interest in the Loyaltypoint Rights, other
than pursuant to Rothschild
Trust’s interest in BP
GBL. Rothschild Trust and BP GBL have the full, right,
power and authority to enter into this Agreement and assign the Loyaltypoint
Rights. Rothschild Trust, BP GBL
and Rothschild
agree to indemnify NeoMedia to the full extent
permitted by law for any breach of this provision.
5. Covenant
Not to Sue.
A. Rothschild Parties, their
successors, assigns, agents, officers, shareholders, members, parents and
subsidiaries and Rothschild (collectively “5A Releasors”) agree that they will not
commence any lawsuits, arbitrations or other proceedings or actions against
NeoMedia, its
successors, assigns, employees, officers, directors, shareholders, agents,
parents and subsidiaries (collectively “5A Releasees”) regarding any
claims with respect to the Loyaltypoint Rights and the
Loyaltypoint Patents,
save and except for any future breach or violation by NeoMedia of this Agreement. 5A Releasors
further represent that they have no suits, claims, charges, complaints or
demands of any kind whatsoever currently pending against 5A Releasees with any local,
state, or federal court or any governmental, administrative, investigative,
civil rights or other agency or board other than the Lawsuit described in this
Agreement. 5A Releasors covenant and
agree never, individually or with any person or in any way, directly or
indirectly, to commence, participate in, aid in any way, prosecute or cause or
permit to be commenced or prosecuted against 5A Releasees any action or
other proceeding based upon any claim, demand, cause of action, obligation,
damage, or liability with respect to the Loyaltypoint Rights and the
Loyaltypoint Patents,
that occurred or arose at any time prior to and including the date of 5A Releasors’ execution of
this Agreement. 5A Releasors
represent and agree that they have not and will not make or file or cause to be
made or filed any other claim, charge, allegation, or complaint, whether formal,
informal, or anonymous with respect to the Loyaltypoint Rights and the
Loyaltypoint Patents,
with any governmental agency, department or division, whether federal, state, or
local, relating to 5A
Releasees, excepting claims, charges, allegations or complaints which
arise from future breaches or violations by the 5A Releasees of the terms and
conditions of this Agreement or other obligations
of the 5A Releasees that
are not the subject matter of the Release stated above in Section 3A of this
Agreement. 5A Releasors further agree
that if any person, organization or other entity should bring a claim against
5A Releasees involving
any matter with respect to the Loyaltypoint Rights and Loyaltypoint Patents, 5A Releasors shall not join
in, or benefit from, any such action.
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B. NeoMedia, its successors,
assigns, agents, officers, shareholders, members, parents and subsidiaries
(collectively “5B
Releasors”) agree that they will not
commence any lawsuits, arbitrations or other proceedings or actions against the
Rothschild Parties,
their successors, assigns, employees, shareholders, members, managers, parents,
subsidiaries, officers and directors and Rothschild (collectively “5B Releasees”) regarding any
claims with respect to the Loyaltypoint Rights and the
Loyaltypoint Patents,
save and except for any future breach or violation by the Rothschild Parties and Rothschild of this Agreement. 5B
Releasors further represent that they have no suits, claims, charges,
complaints or demands of any kind whatsoever currently pending against 5B Releasees with any local,
state, or federal court or any governmental, administrative, investigative,
civil rights or other agency or board other than the Lawsuit described in this
Agreement. 5B Releasors covenant and
agree never, individually or with any person or in any way, directly or
indirectly, to commence, participate in, aid in any way, prosecute or cause or
permit to be commenced or prosecuted against 5B Releasees any action or
other proceeding based upon any claim, demand, cause of action, obligation,
damage, or liability with respect to the Loyaltypoint Rights and the
Loyaltypoint Patents,
that occurred or arose at any time prior to and including the date of 5B Releasors’ execution of this
Agreement. 5B Releasors
represent and agree that they have not and will not make or file or cause to be
made or filed any other claim, charge, allegation, or complaint, whether formal,
informal, or anonymous with respect to the Loyaltypoint Rights and the
Loyaltypoint Patents,
with any governmental agency, department or division, whether federal, state, or
local, relating to 5B
Releasees, excepting claims, charges, allegations or complaints which
arise from future breaches or violations by the 5B Releasees of the terms and
conditions of this Agreement or other obligations
of the 5B Releasees that
are not the subject matter of the Release stated above in Section 3B of
this
Agreement. 5B
Releasors further agree that if any person, organization or other entity
should bring a claim against 5B
Releasees involving any matter with respect to the Loyaltypoint Rights and the
Loyaltypoint Patents,
5B Releasors shall not
join in, or benefit from, any such action.
6. Acknowledgement
of Consideration. The Parties hereto each
acknowledge and agree that the Settlement Benefits (Section 2 above),
Releases (Section 3) and the Covenants Not To Sue (Section 5 above) set
forth in this Agreement
are being exchanged for the benefit of each of the Parties executing this Agreement, and that, but for
the agreements made hereunder, they have no entitlement to the consideration
exchanged pursuant to this Agreement.
7. Knowing
and Voluntary Waiver. The Parties hereto each
acknowledge and agree that the waiver of the Parties’ claims provided in
this Agreement is knowing and voluntary and that this waiver is a part of this
Agreement, which has
been written in a manner calculated to be, and which is, understood by each of
the Parties.
8. Non-Admission. Nothing in this
Agreement, including the
above Settlement Benefits, are to be construed as an admission of wrongdoing or
of any liability by any of the Parties. The
execution of this Agreement shall not be deemed,
construed or interpreted, in any way, to be an admission by any Party regarding liability,
damages or the validity of any claim or defense, which any Party has asserted or may
assert. If this Agreement is not fully and
finally consummated by its valid and binding execution date, then no statements
contained herein shall be used for any purpose whatsoever against any of the
Parties.
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9.
Cooperation. The
Parties agree to execute
and deliver any and all documents that may be necessary to effectuate the terms
agreed to herein.
10. Plain
Meaning and Headers. This Agreement shall be interpreted
in accordance with the plain meaning of its terms and not for or against the
drafter’s rights hereunder. The headers describing the contents of
the provisions are simply for identification purposes and shall not be construed
as a substantive part of the provision.
11. Agreement
the Product of Negotiation. This
Agreement is the product
of negotiation between the Parties. In the
event of a dispute concerning the interpretation of this Agreement or of any of its
terms or provisions, the Agreement shall be deemed to
have been drafted jointly by the Parties, and shall not be more
strictly construed against any of the Parties.
12. Waiver. No waiver of a
breach of any provision of this Agreement shall constitute a
waiver of a breach of any other provision of this Agreement or of a prior or
subsequent breach of the same provision. No extension of time of
performance of an act or obligation under this Agreement shall constitute an
extension of time of performance of any other act or obligation.
13. No
Assignment; Authority. The Parties represent and warrant
that no person other than the signatories hereto had or has any interest in the
matters referred to in this Agreement, that the Parties have the sole right
and exclusive authority to execute this Agreement, and that the Parties have not sold,
assigned, transferred, conveyed, or otherwise disposed of any claim, demand or
legal right that is the subject of this Agreement. NeoMedia represents and
warrants that Michael Zima has been duly authorized to execute this Agreement on behalf of NeoMedia and that no consent,
authorization, approval or order is required to be obtained by NeoMedia for the
execution, delivery and performance of this Agreement by NeoMedia, except as has
been obtained prior to the execution hereof. The Rothschild Parties hereby
represent and warrant that Rothschild has been duly
authorized to execute this Agreement on behalf of the Rothschild Parties and that no
consent, authorization, approval or order is required to be obtained by the
Rothschild Parties for
the execution, delivery and performance of this Agreement by the Rothschild Parties, except as
has been obtained prior to the execution hereof.
14. Governing
Law and Jurisdiction. This Agreement shall be deemed to be
made and entered into in the State of Florida, and shall in all respects be
interpreted, enforced and governed under the laws of Florida, without giving
effect to the conflict of laws principles of Florida law. For
purposes of enforcing this Agreement, the Parties expressly consent to
the exclusive jurisdiction and venue of any court of competent jurisdiction
located in Miami-Dade County, Florida, and they expressly waive any claims or
defenses of forum non
conveniens to jurisdiction and venue in Miami-Dade County,
Florida. THE
PARTIES EXPRESSLY WAIVE ANY AND
ALL RIGHTS TO A JURY TRIAL.
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15. Opportunity
to Consult with Counsel. The Parties hereby represent and
acknowledge that they have been provided with the opportunity to discuss and
review the terms of this Agreement with their
respective attorneys before signing it and that they are freely and voluntarily
signing this document in exchange for the benefits provided
herein. The Parties further represent and
acknowledge that they have been provided a reasonable period of time within
which to review the terms of this Agreement.
16. Entire
Agreement. This Agreement is the entire
agreement between the Parties relating to the subject matter of this Agreement, and fully
supersedes any and all prior agreements and understandings, both written and
oral, between the Parties. The Parties acknowledge that no
one has made any representations or promises to them, other than those contained
in or referred to in this Agreement, and that they are
not relying on any representations or promises not set forth herein in executing
this Agreement.
17. Modification
or Amendment. No amendment,
change or modification of this Agreement, or waiver of any provision of this
Agreement, shall be
valid unless it is in writing, signed by each of the Parties or by his or its
respective successors and/or assigns. The Parties agree not to make any
claim at any time or place that this Agreement has been orally
modified in any respect whatsoever.
18. Severability. Should any
provision of this Agreement be declared or
determined by any court of competent jurisdiction to be illegal or invalid, the
validity of the remaining parts, terms or provisions shall not be affected
thereby and said illegal or invalid part, term or provision shall be deemed not
to be a part of this Agreement and all other valid
provisions shall survive and continue to bind the Parties.
19. Counterparts. This Agreement may be
executed in two or more counterparts, each of which shall be deemed an original,
and together which shall constitute one and the same agreement. This
Agreement and any amendment hereto may be signed by electronic signature, such
as facsimile transmission or electronic mail by PDF format, and any such
electronic signature shall be deemed to be an original for all
purposes. The Parties agree to execute two (2) originals of this
Agreement.
20. Execution
of Agreement. The Parties to this Agreement each acknowledge and
agree that in deciding to execute this Agreement: (a) the
Parties relied entirely
on their own judgment and that of any legal counsel; (b) no facts,
evidence, event or transaction currently unknown to the Parties, but which may
hereinafter become known, shall affect in any way or manner the final,
unconditional nature of this Agreement; (c) the
execution of this Agreement is a completely
knowing and voluntary act; (d) the Parties understand the terms
of this Agreement; (e) the
Parties have been
advised to consult with legal counsel and have been provided with time to
consult with legal counsel prior to the execution of this Agreement; (f) all
promises made to the Parties in connection with
this Agreement or as
inducement to sign same expressly are set forth in full in the other paragraphs
of this Agreement.
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21. Prevailing
Party. In
the event that it shall be necessary for any Party to this Agreement to institute legal
action to enforce any of the terms and conditions or provisions contained
herein, or for any breach thereof, the prevailing party shall be entitled to
reimbursement of their costs and reasonable attorney’s fees.
22. Notices. All documents or
instruments to be sent, provided or delivered under this Agreement shall be sent to the
following addresses:
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A.
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Rothschild
Parties.
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Rothschild
Trust Holdings, LLC
1108 Kane
Concourse, Suite 310
Bay
Harbor Islands, FL 33154
Attn.: Jay
Howard Linn
With a
copy to:
Feingold
Schechter P.A.
3858-S
Sheridan Street
Hollywood,
FL 33021
Attn.: Robert
A. Feingold, Esq.
(P)
954.967.2575
(F)
954.967.2576
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B.
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NeoMedia.
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NeoMedia
Technologies, Inc.
Two
Concourse Parkway, Suite 500
Atlanta,
Georgia 30328
Attn. Michael
W. Zima, CFO
With a
copy to:
K&L
Gates LLP
Wachovia
Financial Center – Suite 3900
200 South
Biscayne Boulevard
Miami,
Florida 33131
Attn.: Jonathan
Morton, Esq.
(P)
305.539.3357
(F)
305.358.7095
23. Confidentiality.
A. Except
as provided in subsection (B) of this Section 23, the Parties agree that the terms
and conditions of this Agreement are and shall remain
confidential.
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B. Nothing
in subsection (A) of this Section 23 shall prohibit any Party from disclosing terms
and conditions of this Agreement: (i) to the extent
that the such party is legally compelled (by oral questions, interrogatories,
request for information or documents, subpoena, civil investigative demand or
similar process) to disclose any of the terms hereof (the “Confidential Information”);
(ii) to its respective attorneys, auditors, lending institutions, or other
agents or representatives that the disclosing Party in good faith believes
should have access to such Confidential Information;
and/or (iii) NeoMedia
disclosing certain aspects of this Agreement on NeoMedia securities filings,
to the extent required by the United States Securities and Exchange Commission;
provided that, in connection with any such disclosure, (a) a disclosing party
shall only disclose such Confidential Information as is
required to be disclosed in connection with the foregoing, (b) a disclosing
party shall provide the other party with prompt and advance written notice of
any such intended disclosure so that such other party has a reasonable
opportunity to limit such disclosure, or (if applicable, and to the extent
reasonable practicable) seek a protective order or other appropriate remedy to
prevent such disclosure and (c) a disclosing party shall use its reasonable
efforts to seek confidential treatment (consistent with the terms hereof) by the
third party to whom such disclosure is made. The Parties acknowledge that money
damages would not be a sufficient remedy for any breach of the provisions of
this Section 23 and that the non-breaching party shall be entitled to equitable
relief, without proof of damages or the posting of a bond, to enjoin a breach or
threatened breach of this Section 23. Such equitable relief shall be
in addition to, and not in lieu of, such other and further relief as the injured
party may be entitled to.
C. The
obligation not to disclose Confidential Information shall
not apply to any part of such Confidential Information that
(i) is or becomes generally known to the public other than by acts of a party in
contravention of this Agreement; (ii) is disclosed
to a party by a third party, unless such Confidential Information was
obtained by such third party directly or indirectly from a party on a
confidential basis which is known or made known to such party; (iii) prior to
disclosure under this Agreement, was already in the
possession of the disclosing party, unless such Confidential Information was
obtained directly or indirectly from the other party on a confidential basis; or
(iv) is independently acquired or developed by a disclosing party other than by
acts of a party in contravention of this Agreement.
IN WITNESS WHEREOF, each of
the Parties having so agreed to the terms stated herein, have set their
hands the date and year below so written.
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ROTHSCHILD
TRUST HOLDINGS, LLC
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NEOMEDIA
TECHNOLOGIES, INC.
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By:
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/s/ Leigh M.
Rothschild
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By:
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/s/ Michael W.
Zima
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Name:
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Leigh
M. Rothschild
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Name:
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Michael
W. Zima
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Title:
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Managing
Member
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Title:
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CFO
and Secretary
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Date:
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December
14, 2010
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Date:
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December
13, 2010
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BP
GBL SECTION 3.4, LLC
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By:
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/s/ Leigh M.
Rothschild
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Name:
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Leigh M. Rothschild |
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Title:
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Manager
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Date:
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December 14, 2010 |
AGREED
AND ACCEPTED TO WITH RESPECT
TO
HIS RIGHTS AND OBLIGATIONS UNDER
SECTIONS
2(A), 2(B), 2(C), 3, 4, 5 and EXHIBIT 1
/s/ Leigh M.
Rothschild
Leigh
M. Rothschild
AGREED
AND ACCEPTED TO, SOLELY
IN
ITS CAPACITY AS ESCROW AGENT
THIS
14th
DAY OF DECEMBER, 2010
K&L
GATES, LLP
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By:
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/s/ Jonathan
Morton
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Name:
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Jonathan
Morton
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Title:
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Partner
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AGREED
AND ACCEPTED TO WITH
RESPECT
TO THEIR RESPECTIVE
RIGHTS
AND OBLIGATIONS AS A
MEMBER
OF THE ROTHSCHILD GROUP
UNDER
SECTIONS 2A, 2B, 2C, 2D, 2E, 23
AND
EXHIBIT 1 OF THIS AGREEMENT
THIS
14th
DAY OF DECEMBER, 2010
/s/ Leigh M.
Rothschild
Leigh
M. Rothschild
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ICAP
Ocean Tomo LLC
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By:
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/s/ David
Schmidt
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Name:
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David
Schmidt
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Title:
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Director
of Research
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Address:
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200
W. Madison, 37th
Floor
Chicago,
Il 60606
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(P):
312-327-8001
(F):
312-327-4401
Feingold
Schechter P.A.
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By:
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/s/ Robert A
Feingold
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Name:
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Robert
A. Feingold
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Title:
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President
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