exv10w1






Exhibit 10.1




 





 






PURCHASE AND SALE

AGREEMENT




 






by and between




COINSTAR, INC.




and




GETAMOVIE, INC.




 






Dated as of February 12, 2009




 






 






1









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE I
	 	 	 	 
	CERTAIN DEFINITIONS
	 	 	 	 
	 
	 	 	 	 
	1.1 Certain Definitions
	 	 	2	 
	 
	1.2 Interpretation
	 	 	11	 
	 
	 	 	 	 
	ARTICLE II
	 	 	 	 
	SHARE PURCHASE
	 	 	 	 
	 
	 	 	 	 
	2.1 Purchase and Sale of Shares
	 	 	11	 
	 
	2.2 Initial Consideration
	 	 	11	 
	 
	2.3 Closing
	 	 	12	 
	 
	2.4 Deferred Consideration
	 	 	13	 
	 
	2.5 Events of Default
	 	 	17	 
	 
	 	 	 	 
	ARTICLE III
	 	 	 	 
	REPRESENTATIONS AND WARRANTIES OF SELLER
	 	 	 	 
	 
	 	 	 	 
	3.1 Existence, Authorization and Validity of Agreement
	 	 	18	 
	 
	3.2 Consents and Approvals; No Violation
	 	 	18	 
	 
	3.3 Title to the GAM Shares and the Note
	 	 	19	 
	 
	3.4 Securities Act
	 	 	19	 
	 
	3.5 Brokers and Finders
	 	 	19	 
	 
	3.6 HSR Act
	 	 	19	 
	 
	 	 	 	 
	ARTICLE IV
	 	 	 	 
	REPRESENTATIONS AND WARRANTIES OF PURCHASER
	 	 	 	 
	 
	 	 	 	 
	4.1 Existence, Qualification and Power
	 	 	20	 
	 
	4.2 Consents and Approvals; No Violation
	 	 	20	 
	 
	4.3 Capitalization
	 	 	21	 
	 
	4.4 SEC Reports
	 	 	21	 
	 
	4.5 Financial Statements; No Purchaser Material Adverse Effect
	 	 	21	 
	 
	4.6 Litigation
	 	 	22	 
	 
	4.7 No Default
	 	 	22	 
	 
	4.8 Ownership of Property; Liens
	 	 	22	 
	 
	4.9 Environmental Matters
	 	 	22	 
	 
	4.10 Insurance
	 	 	23	 
	 
	4.11 Taxes
	 	 	23	 
	 
	4.12 Company Taxes
	 	 	24	 






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TABLE OF CONTENTS
(continued)





	 	 	 	 	 
	 	 	Page
	4.13 ERISA Compliance
	 	 	24	 
	 
	4.14 Purchaser Intellectual Property
	 	 	24	 
	 
	4.15 Solvency
	 	 	25	 
	 
	4.16 Securities Act
	 	 	25	 
	 
	4.17 Brokers and Finders
	 	 	25	 
	 
	 	 	 	 
	ARTICLE V
	 	 	 	 
	ADDITIONAL AGREEMENTS
	 	 	 	 
	 
	 	 	 	 
	5.1 Conduct of Business of Purchaser
	 	 	26	 
	 
	5.2 Negative Covenants
	 	 	27	 
	 
	5.3 8-K Obligation
	 	 	27	 
	 
	5.4 NASDAQ Listing
	 	 	27	 
	 
	5.5 Legend
	 	 	28	 
	 
	5.6 Rule 144 Reporting
	 	 	28	 
	 
	5.7 Reorganization Events
	 	 	28	 
	 
	5.8 Liquidity Event; Excess Liquidity
	 	 	29	 
	 
	5.9 Further Assurances
	 	 	30	 
	 
	5.10 Public Disclosure
	 	 	30	 
	 
	5.11 LLC Agreement
	 	 	30	 
	 
	5.12 Indemnity
	 	 	30	 
	 
	5.13 Solvency
	 	 	32	 
	 
	5.14 Ranking
	 	 	32	 
	 
	5.15 Post-Closing Cooperation and Retention of Records
	 	 	32	 
	 
	5.16 Company Filings
	 	 	33	 
	 
	5.17 Purchaser Registration Statement
	 	 	33	 
	 
	5.18 HSR Act
	 	 	33	 
	 
	5.19 Credit Facility Amendment
	 	 	33	 
	 
	 	 	 	 
	ARTICLE VI
	 	 	 	 
	CONDITIONS TO CLOSING
	 	 	 	 
	 
	 	 	 	 
	6.1 Conditions to the Obligations of Seller
	 	 	33	 
	 
	6.2 Conditions to the Obligations of Purchaser
	 	 	35	 
	 
	 	 	 	 
	ARTICLE VII
	 	 	 	 
	TAX MATTERS
	 	 	 	 
	 
	 	 	 	 
	7.1 Company Tax Returns
	 	 	35	 






ii









 




TABLE OF CONTENTS
(continued)




	 	 	 	 	 
	 	 	Page
	7.2 Contest
	 	 	36	 
	 
	7.3 Tax Cooperation
	 	 	36	 
	 
	7.4 Transfer Taxes
	 	 	36	 
	 
	7.5 Purchase Price Allocation
	 	 	36	 
	 
	 	 	 	 
	ARTICLE VIII
	 	 	 	 
	TERMINATION
	 	 	 	 
	 
	 	 	 	 
	8.1 Termination
	 	 	37	 
	 
	8.2 Effect of Termination
	 	 	37	 
	 
	 	 	 	 
	ARTICLE IX
	 	 	 	 
	MISCELLANEOUS
	 	 	 	 
	 
	 	 	 	 
	9.1 Binding Effect; Assignment
	 	 	37	 
	 
	9.2 Notices
	 	 	38	 
	 
	9.3 Incorporation
	 	 	38	 
	 
	9.4 Governing Law
	 	 	39	 
	 
	9.5 Consent to Jurisdiction
	 	 	39	 
	 
	9.6 Entire Agreement
	 	 	39	 
	 
	9.7 Counterparts
	 	 	39	 
	 
	9.8 Waiver
	 	 	39	 
	 
	9.9 Expenses
	 	 	39	 
	 
	9.10 Severability
	 	 	39	 
	 
	9.11 Specific Performance
	 	 	39	 
	 
	9.12 Fair Market Value
	 	 	40	 






	 	 	 
	SCHEDULES
	 	 
	 
	 	 
	Schedule I

	 	Form of Closing Deferred Consideration Schedule
	Schedule II

	 	Deferred Consideration Unit Price Schedule
	Schedule III

	 	Form of Deferred Consideration Payment Date Schedule
	 
	 	 
	EXHIBITS
	 	 
	 
	 	 
	Exhibit A

	 	Form of Note Assignment Agreement
	Exhibit B

	 	Form of Registration Rights Agreement






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PURCHASE AND SALE AGREEMENT




     THIS PURCHASE AND SALE AGREEMENT (this “Agreement”), dated as of February 12, 2009, is
by and between Coinstar, Inc., a Delaware corporation (“Purchaser”), and GetAMovie, Inc.,
an Illinois corporation (“Seller”).



RECITALS




          WHEREAS, Seller is the record and beneficial owner of 3,999,789 Class A Interests (the
“GAM Shares”) in Redbox Automated Retail, LLC, a Delaware limited liability company (the
“Company”), constituting 44.44% of the outstanding Class A Interests, and Purchaser is the
record and beneficial owner of 4,590,000 Class A Interests, constituting 51% of the outstanding
Class A Interests with the balance of the Class A Interests held by another investor in the
Company;




          WHEREAS, Purchaser desires to purchase the GAM Shares from Seller, and Seller desires to sell
the GAM Shares to Purchaser, on the terms and subject to the conditions set forth in this
Agreement;




          WHEREAS, simultaneously with the sale of the GAM Shares and pursuant to a Note Assignment
Agreement, a form of which is attached hereto as Exhibit A, Seller desires to convey,
transfer and assign to Purchaser all of Seller’s rights, title and interest in and to that certain
Term Promissory Note dated May 3, 2007 made by the Company in favor of Seller in the principal
amount of $10,000,000 (the “Note”);




          WHEREAS, this Agreement constitutes Seller’s Buy-Sell Notice under Section 8.06(a) of that
certain Third Amended and Restated Limited Liability Company Operating Agreement by and among
Purchaser, Seller, the Company and certain other investors, dated May 31, 2006 (the “LLC
Agreement”);




          WHEREAS, upon fulfillment or waiver of the conditions set forth in Section 6.1 and 6.2 herein,
this Agreement shall constitute Purchaser’s written agreement to purchase the GAM Shares pursuant
to Seller’s Buy-Sell Notice under Section 8.06 of the LLC Agreement;




          WHEREAS, upon fulfillment or waiver of the conditions set forth in Section 6.1 and 6.2 herein,
this Agreement shall set forth the fair market value for the GAM Shares as agreed to by the Seller
and Purchaser under Section 8.06(e) of the LLC Agreement; and




          WHEREAS, this Agreement and the transactions contemplated hereby constitute a sale transaction
as contemplated by Section 8.06 of the LLC Agreement.




          NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants herein contained
and of other good and valuable consideration, the receipt of which is hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:














 








ARTICLE I




CERTAIN DEFINITIONS




     1.1 Certain Definitions. As used in this Agreement, the terms below shall have the
meanings specified below.



          “8-K Filing” shall have the meaning specified in Section 5.3.




          “Affiliate” means, with respect to any Person, any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with such Person. For
purposes of this definition, “control” (including, with correlative meaning, the terms
“controlling” and “controlled”) means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of such Person, whether
through ownership of voting securities, by contract or otherwise.




          “Agreement” shall have the meaning specified in the preamble to this Agreement.




          “Attributable Indebtedness” means, on any date, (a) in respect of any capital lease of
any Person, the capitalized amount thereof that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease
Obligation, the capitalized amount of the remaining lease payments under the relevant lease that
would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a capital lease.




          “Audited Annual Financial Statements” means the audited consolidated balance sheet of
Purchaser and its Subsidiaries for the fiscal year ended December 31, 2007, or, to the extent
available, for the fiscal year ended December 31, 2008, and the related consolidated statements of
income or operations, stockholders’ equity and cash flows for such fiscal year of Purchaser and its
Subsidiaries, including the notes thereto.




          “beneficial owner” shall have the meaning given to such term in Rule 13d-3 under the
Exchange Act.




          “Business Day” means a day other than a Saturday, a Sunday or a day on which
commercial banking institutions in the State of Illinois or the State of New York are authorized or
obligated by Law to close.




          “cash” shall mean U.S. dollars or any other lawful currency of the United States.




          “Cash Payment Events” shall have the meaning specified in Section
2.4(b)(viii).




          “Closing” shall have the meaning specified in Section 2.3(a).




          “Closing Date” shall have the meaning specified in Section 2.3(a).




          “Closing Deferred Consideration Schedule” shall have the meaning specified in
Section 2.4(a).




2









 








          “Code” means the Internal Revenue Code of 1986.




          “Company” shall have the meaning specified in the recitals to this Agreement.




          “Contest” means any audit, litigation or other proceeding with respect to any Tax
matter.




          “Contractual Obligation” means, as to any Person, any provision of any security issued
by such Person or of any agreement, instrument or other undertaking to which such Person is a party
or by which it or any of its property is bound.




          “Credit Facility” means the Credit Agreement by and among Purchaser, Bank of America,
N.A., as Administrative Agent, Swing Line Lender and L/C Issuer and certain other Lenders party
thereto, dated as of November 20, 2007 and amended as of the date of this Agreement in form
reasonably satisfactory to Seller (or any successor or replacement or additional facility or loan
agreement).




          “Deferred Cash Payments” shall have the meaning specified in Section 2.4(d).




          “Deferred Consideration” shall have the meaning specified in Section 2.4(a).




          “Deferred Consideration Payment Date” shall have the meaning specified in Section
2.4(b).




          “Deferred Consideration Unit” shall have the meaning specified in Section
2.4(a).




          “Deferred Consideration Unit Price” means, with respect to the payment of the Deferred
Consideration in any month, the value of one Deferred Consideration Unit as specified in
Section 2.4.




          “Deferred Stock Payment” shall have the meaning specified in Section
2.4(c)(i).




          “Environmental Laws” means any and all Laws, judgments, orders, decrees, permits,
concessions, grants, franchises, licenses, agreements or governmental restrictions of any
Governmental Entity relating to pollution and the protection of the environment or natural
resources, human health and safety, or the release of any materials into the environment, including
those related to Hazardous Materials, air emissions and discharges to surface water, groundwater,
land surface, subsurface strata, or public or private systems.




          “Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of
Purchaser or any of its Subsidiaries directly or indirectly resulting from or based upon (a)
violation of any Environmental Law; (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials; (c) exposure to any Hazardous Materials; (d) the
release or threatened release of any Hazardous Materials into the environment; or (e) any contract,
agreement or other consensual arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.




3









 








          “ERISA” means the Employee Retirement Income Security Act of 1974.




          “ERISA Affiliate” means any trade or business (whether or not incorporated) under
common control with Purchaser within the meaning of Section 414(b) or (c) of the Code (and Sections
414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code) other
than the Company.




          “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by Purchaser or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA
during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of
ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by Purchaser or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in reorganization within the
meaning of Section 4241 of ERISA; (d) the filing of a notice of intent to terminate, the treatment
of a Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or
condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon Purchaser or any ERISA Affiliate.




          “Excess Liquidity” means, with respect to any Measurement Date, the excess of (i) the
average of the unborrowed amount available for borrowing under the Credit Facility on each of the
30 days immediately preceding such Measurement Date, over (ii) $62,500,000.




          “Exchange Act” means the Securities Exchange Act of 1934.




          “Form S-3” means a registration statement on Form S-3 under the Securities Act or such
successor forms thereto permitting registration of securities under the Securities Act.




          “GAM Shares” shall have the meaning specified in the recitals to this Agreement.




          “GAAP” means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board, consistently applied.




          “Governmental Entity” means any federal, state, local or foreign court, government or
political subdivision or department thereof, or any governmental administrative or regulatory body.




          “Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of
such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation payable or performable by another Person (the “primary obligor”) in any manner, whether
directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation; (ii) to purchase or lease property, securities or services for the




4









 




purpose of assuring the obligee in respect of such Indebtedness or other obligation of the
payment or performance of such Indebtedness or other obligation; (iii) to maintain working capital,
equity capital or any other financial statement condition or liquidity or level of income or cash
flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation; or (iv) entered into for the purpose of assuring in any other manner the obligee in
respect of such Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part); or (b) any Lien on any
assets of such Person securing any Indebtedness or other obligation of any other Person, whether or
not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or
otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any
Guarantee shall be deemed to be equal to the stated or determinable outstanding amount of the
related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if
not stated or determinable, the maximum reasonably anticipated liability in respect thereof as
determined by the guaranteeing Person in good faith. The term “guarantee” as a verb has a
corresponding meaning.




          “Hazardous Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to
any Environmental Law.




          “HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976.




          “Indebtedness” means, as to any Person at a particular time, without duplication, all
of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:




          (a) all obligations of such Person for borrowed money and all obligations of such Person
evidenced by bonds, debentures, notes, loan agreements or other similar instruments;




          (b) all direct or contingent obligations of such Person arising under letters of credit
(including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar
instruments;




          (c) net obligations of such Person under all Swap Contracts;




          (d) all obligations of such Person to pay the deferred purchase price of property or services
(other than trade accounts payable in the ordinary course of business);




          (e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or
being purchased by such Person (including indebtedness arising under conditional sales or other
title retention agreements), whether or not such indebtedness shall have been assumed by such
Person or is limited in recourse;




          (f) capital leases and Synthetic Lease Obligations;




5









 








          (g) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any
payment in respect of any equity interest in such Person or any other Person, valued, in the case
of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation
preference plus accrued and unpaid dividends; and




          (h) all Guarantees of such Person in respect of any of the foregoing.




          For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any
general partnership or limited partnership or joint venture (other than a joint venture that is
itself a corporation or limited liability company) in which such Person is a general partner or a
joint venturer, unless such Indebtedness is non-recourse to such Person by contract or operation of
law. The amount of any net obligation under any Swap Contract on any date shall be deemed to be
the Swap Termination Value thereof as of such date. The amount of any capital lease or Synthetic
Lease Obligation as of any date shall be deemed to be the amount of Attributable Indebtedness in
respect thereof as of such date.




          “Indemnified Party” shall have the meaning specified in Section 5.12(c).




          “Indemnifying Party” shall have the meaning specified in Section 5.12(c).




          “Initial Consideration” shall have the meaning specified in Section 2.2(a).




          “Initial Cash Consideration” shall have the meaning specified in Section
2.2(a).




          “Initial Stock Consideration” shall have the meaning specified in Section
2.2(a).




          “IP Rights” shall have the meaning specified in Section 4.14.




          “Law” means any law, statute, ordinance, rule or regulation of any Governmental
Entity.




          “Lien” means any mortgage, pledge, lien, security interest or other similar
encumbrance.




          “Liquidity Event” means any of the following events: (a) a public or private offering
of securities of any type whatsoever by Purchaser or any Purchaser Subsidiary (including the
Company); or (b) any conveyance, sale or disposition of Purchaser’s interest in property or assets
of Purchaser or any Purchaser Subsidiary in exchange for cash, whether in whole or in part,
excluding (i) in the ordinary course of business and (ii) any foreclosure or similar action by any
Person under the Credit Facility.




          “Liquidity Event Proceeds” shall have the meaning specified in Section 5.8(a).




          “LLC Agreement” shall have the meaning specified in the recitals to this Agreement.




          “Losses” shall have the meaning specified in Section 5.12(a).




6









 








          “McD USA Rollout Agreement” means that certain Rollout Purchase, License and Service
Agreement dated as of November 16, 2006 by and between the Company and McDonald’s USA, LLC.




          “Measurement Date” means the last day of each month beginning April 30, 2009, if, as
of such date, any Deferred Consideration shall remain unpaid hereunder.




          “Multiemployer Plan” means any employee benefit plan of the type described in Section
4001(a)(3) of ERISA, to which the Purchaser or any ERISA Affiliate makes or is obligated to make
contributions, or during the preceding five plan years, has made or been obligated to make
contributions.




          “New Seller Disclosure” means any disclosure relating to Seller and/or its Affiliates
(including any of its or their current or former employees, officers and directors), the
transactions contemplated by this Agreement, the terms of the McD USA Rollout Agreement or any
other matter relating to any contractual or other relationship among the Company and/or Purchaser,
on the one hand, and Seller and/or its Affiliates, on the other hand.




          “Nine-Month Default” shall have the meaning specified in Section 2.5.




          “Note” shall have the meaning specified in the recitals to this Agreement.




          “PBGC” means the Pension Benefit Guaranty Corporation.




          “Pension Plan” means any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and
is sponsored or maintained by Purchaser or any ERISA Affiliate or to which Purchaser or any ERISA
Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or
other plan described in Section 4064(a) of ERISA, has made contributions at any time during the
immediately preceding five plan years.




          “Person” means an individual, corporation, partnership, trust, limited liability
company, a branch of any legal entity, unincorporated organization, joint stock company, joint
venture, association, other entity or Governmental Entity.




          “Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of
ERISA) established by Purchaser or, with respect to any such plan that is subject to Section 412 of
the Code or Title IV of ERISA, any ERISA Affiliate.




          “Pre-Closing Tax Period” means taxable periods (or portions thereof) ending on or
prior to the Closing.




          “Purchase Price” shall have the meaning specified in Section 2.1(b).




          “Purchaser” shall have the meaning specified in the preamble to this Agreement.




          “Purchaser Common Stock” means shares of Purchaser common stock, par value $0.001 per
share.




7









 








          “Purchaser Indemnified Parties” shall have the meaning specified in Section
5.12(b).




          “Purchaser Material Adverse Effect” means any circumstance, event, change, development
or effect that, individually or in the aggregate, (a) is material and adverse to the business,
assets, results of operations or financial condition of Purchaser and its Subsidiaries taken as a
whole; or (b) would materially impair the ability of Purchaser to perform its obligations under
this Agreement or the Registration Rights Agreement or to consummate the Closing; provided,
however, that in determining whether a Purchaser Material Adverse Effect has occurred,
there shall be excluded any effect to the extent resulting from the following: (i) changes, after
the date hereof, in GAAP or regulatory accounting principles generally applicable to U.S. public
companies; (ii) changes, after the date hereof, in applicable Laws by Governmental Entities;
(iii) actions or omissions of Purchaser expressly required or permitted by this Agreement or taken
with the prior written consent of Seller; (iv) changes in general economic, monetary or financial
conditions, including changes in prevailing interest rates and credit markets; (v) the failure of
Purchaser to meet any internal or public projections, forecasts, estimates or guidance (including
guidance as to “earnings drivers”) for any period ending on or after December 31, 2008 (but not the
underlying causes of such failure); (vi) changes in global or national political conditions,
including the outbreak or escalation of war or acts of terrorism; and (vii) the public disclosure
of this Agreement or the transactions contemplated hereby.




          “Purchaser SEC Reports” shall have the meaning specified in Section 4.4.




          “Purchaser VWAP” means, with respect to Purchaser Common Stock included in the Initial
Consideration or any Deferred Stock Payment, the average of the volume weighted average price per
share of Purchaser Common Stock for each of the eight NASDAQ trading days prior to, but not
including, the Closing Date (in the case of the Initial Stock Consideration) or the applicable
Deferred Consideration Payment Date (in the case of Deferred Stock Consideration), as the case may
be.




          “Registration Rights Agreement” means that certain Registration Rights Agreement
between Purchaser and Seller, a form of which is attached hereto as Exhibit B.




          “Reorganization Event” shall have the meaning specified in Section 5.7(a).




          “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA,
other than events for which the 30-day notice period has been waived.




          “Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any capital stock or other equity interest of
Purchaser, or any payment (whether in cash, securities or other property), including any sinking
fund or similar deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such capital stock or other equity interest, or on account of
any return of capital to Purchaser’s stockholders, partners or members (or equivalent Persons).




          “Rule 144” means such rule promulgated under the Securities Act.




8









 








          “S-3 Shelf Registration Statement” means a registration statement (including any
amendment or supplement thereto) on Form S-3.




          “SEC” means the Securities and Exchange Commission.




          “Securities Act” means the Securities Act of 1933.




          “Seller” shall have the meaning specified in the preamble to this Agreement.




          “Seller Indemnified Parties” shall have the meaning specified in Section
5.12(a).




          “Seller Material Adverse Effect” means an effect that would prevent or materially
impair or delay Seller from consummating the Closing or the transactions contemplated herein.




          “Six-Month Default” shall have the meaning specified in Section 2.5.




          “Solvent” shall have the meaning specified in Section 4.15.




          “Subsidiary” means, with respect to any Person, a corporation or other entity of which
the outstanding shares of stock or other equity interests having ordinary voting power to elect a
majority of the board of directors (or comparable body) of such Person are owned, directly or
indirectly, through one or more intermediaries, by such Person. Notwithstanding the foregoing
definition, prior to the Closing Date, the Company shall not be considered a Subsidiary of
Purchaser for purposes of the representations and warranties contained in Article IV of this
Agreement or for purposes of the defined term “Purchaser Material Adverse Effect”. From and after
the Closing Date until the termination of Purchaser’s obligations under this Agreement, the Company
shall be considered to be a Subsidiary of Purchaser for all purposes under this Agreement.




          “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions of any kind, and
the related confirmations, which are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a “Master Agreement”), including any such
obligations or liabilities under any Master Agreement.




          “Swap Termination Value” means, in respect of any one or more Swap Contracts, after
taking into account the effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have been closed out




9









 




and termination value(s) determined in accordance therewith, such termination value(s), and
(b) for any date prior to the date referenced in clause (a), the amount(s) determined as the
mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or
other readily available quotations provided by any recognized dealer in such Swap Contracts.




          “Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or
possession of property creating obligations that do not appear on the balance sheet of such Person
but which, upon the insolvency or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting treatment).




          “Tax” or “Taxes” shall mean all taxes, however denominated, including all
income, profits, franchise, gross receipts, capital, net worth, sales, use, withholding, turnover,
value added, ad valorem, registration, general business, employment, social security, disability,
occupation, real property, personal property (tangible and intangible), stamp, transfer (including
real property transfer or gains), conveyance, severance, production, excise and other taxes,
withholdings, duties, levies, imposts, license and registration fees and other similar charges and
assessments (including taxes, charges, fees, levies or other assessments which are imposed upon or
incurred under Treasury Regulation §1502-6 (or any similar provision of state, local or foreign
law) as a result of membership in an affiliated, consolidated, combined or unitary group for Tax
purposes as transferee or successor by contract or otherwise) together with any and all fines,
penalties, and additions attributable to or otherwise imposed on or with respect to any such taxes,
charges, fees, levies or other assessments, and interest thereon) imposed by or on behalf of any
Governmental Entity.




          “Tax Returns” means any report, return, information return, forms, declarations,
statements, or other document required to be filed with any Tax authority with respect to Taxes,
including any amendment thereof.




          “Taxing Authority” means any governmental agency, board, bureau, body, person,
department or authority of any United States federal, state or local jurisdiction or any non-United
States jurisdiction, having jurisdiction with respect to any Tax.




          “Transfer Taxes” shall have the meaning specified in Section 7.4.




          “Unaudited Interim Financial Statements” mean (i) prior to the Closing Date, the
unaudited consolidated balance sheet of Purchaser and its Subsidiaries dated September 30, 2008,
and the related consolidated statements of income or operations, stockholders’ equity and cash
flows for the fiscal quarter ended on that date, including the notes thereto; and (ii) following
the Closing Date and prior to the payment in full of the Deferred Consideration, the unaudited
consolidated balance sheet of Purchaser and its Subsidiaries and the related consolidated
statements of income or operations, stockholders’ equity and cash flows for the last full fiscal
quarter prior to the applicable Deferred Consideration Payment Date.




          “Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities
under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s




10









 




assets, determined in accordance with the assumptions used for funding the Pension Plan
pursuant to Section 412 of the Code for the applicable plan year.




          “Unpaid Unit Amount” shall have the meaning specified in Section 5.8(b).




          “Unpaid Unit Fraction” shall have the meaning specified in Section 5.8(b).




     1.2 Interpretation. When a reference is made in this Agreement to an Article,
Section, Exhibit or Schedule, such reference shall be to an Article or Section of, or an Exhibit or
Schedule to, this Agreement unless otherwise indicated. The table of contents and headings
contained in this Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Whenever the words “include,”
“includes” or “including” are used in this Agreement, they shall be deemed to be
followed by the words “without limitation.” Unless the context otherwise requires, references to
this Agreement and the words “hereof,” “herein” and “hereunder” and words
of similar import when used in this Agreement shall refer to this Agreement, including schedules
and exhibits, as a whole and not to any particular provision of this Agreement. All terms defined
in this Agreement shall have the defined meanings when used in any certificate or other document
made or delivered pursuant hereto unless otherwise defined therein. The definitions contained in
this Agreement are applicable to the singular as well as the plural forms of such terms and to the
masculine as well as to the feminine genders of such term. Any agreement, instrument or statute
defined or referred to herein or any agreement or instrument that is referred to herein means such
agreement, instrument or statute as from time to time amended, modified, supplemented or replaced,
including (in the case of agreements or instruments) by waiver or consent and (in the case of
statutes) by succession of comparable successor agreements, instruments or statutes. Any agreement
or instrument referred to herein shall include reference to all exhibits, schedules and other
documents or agreements attached thereto or incorporated therein.



ARTICLE II




SHARE PURCHASE




     2.1 Purchase and Sale of Shares.



     (a) Purchase and Sale. Upon the terms and subject to the conditions set forth in this
Agreement, and in reliance upon the representations and warranties hereinafter set forth, at the
Closing, Seller shall sell and deliver to Purchaser, and Purchaser shall purchase and accept from
Seller, all of the GAM Shares and the Note, together with all rights and obligations attaching
thereto.



     (b) Purchase Price. The aggregate consideration to be paid by Purchaser for all of
the GAM Shares and the Note shall be the sum of the Initial Consideration (as defined below) and
the Deferred Consideration (as set forth in the Closing Deferred Consideration Schedule and
calculated pursuant to Section 2.4(a)) (the “Purchase Price”), in each case, to be
paid in the manner and at the times set forth in Sections 2.2 through 2.4.



     2.2 Initial Consideration.



11









 





     (a) The Initial Consideration shall equal: (i) the product of the Purchaser VWAP and
1,500,000 shares of Purchaser Common Stock, rounded to the nearest dollar, which portion of the
Initial Consideration shall be deliverable in the form of 1,500,000 shares of Purchaser Common
Stock (the “Initial Stock Consideration”), plus (ii) cash in an amount equal to
$10,000,000 by wire transfer of immediately available funds to an account designated in writing by
Seller (the “Initial Cash Consideration” and together with the “Initial Stock
Consideration,” the “Initial Consideration”).



     (b) The balance of the Purchase Price shall be payable by Purchaser following the Closing Date
as set forth in Section 2.4 below.



     2.3 Closing.



     (a) Closing. Subject to the satisfaction or, if permissible, waiver of the conditions
set forth in Sections 6.1 and 6.2, the closing of the transactions contemplated by
Sections 2.1(a) and 2.2(a) (the “Closing”) shall take place at the offices
of Cleary Gottlieb Steen & Hamilton LLP, One Liberty Plaza, New York, New York 10006, at 10:00
a.m., New York City time, on February 26, 2009 or at such other date and place as the parties may
otherwise agree (such date, the “Closing Date”).



     (b) Closing Deliveries and Actions.



     (i) At the Closing, Seller shall deliver, or cause to be delivered, as the case may be, to
Purchaser the following:




     (A) the GAM Shares and the Note, free and clear of any Liens;




     (B) a duly executed counterpart of the Registration Rights Agreement and the Note
Assignment Agreement;




     (C) the certificate contemplated by Section 6.2(c) hereof; and




     (D) such other certificates, instruments of conveyance or documents as may be
reasonably requested by Purchaser to carry out the intent and purposes of this Agreement.



     (ii) At the Closing, Purchaser shall deliver, or cause to be delivered, as the case may be, to
Seller the following:




     (A) the Initial Cash Consideration;




     (B) the Initial Stock Consideration;




     (C) a duly executed counterpart of the Registration Rights Agreement (including the
related indemnity letter agreement by and between Purchaser and Goldman, Sachs & Co.);




     (D) the S-3 Shelf Registration Statement required by Section 6.1(i);



12









 






     (E) the Closing Deferred Consideration Schedule;




     (F) the certificates contemplated by Section 6.1(c) hereof; and




     (G) such other certificates, instruments of conveyance or documents as may be
reasonably requested by Seller to carry out the intent and purposes of this Agreement.



     2.4 Deferred Consideration.



     (a) In addition to the Initial Consideration, Purchaser shall pay deferred consideration under
this Agreement by payment to Seller of a total of ten deferred consideration units (each a
“Deferred Consideration Unit” and, together, the “Deferred Consideration”). The
amount paid for any Deferred Consideration Unit will be based upon a schedule substantially in the
form of Schedule I that Purchaser shall deliver to Seller no later than 5:00 p.m., New York
time, on the Business Day immediately preceding the Closing Date (the “Closing Deferred
Consideration Schedule”). The Closing Deferred Consideration Schedule shall include a table
setting forth (i) the Deferred Consideration Unit Price to be paid by Purchaser for a Deferred
Consideration Unit, which amount will vary based upon (A) the amount of the Initial Consideration
paid by Purchaser as set forth in Schedule II; and (B) the month in which Purchaser pays
such Deferred Consideration Unit as set forth in Schedule II (with the parties agreeing to
make proportional adjustments to the applicable Deferred Consideration Unit Prices to the extent
that the Initial Consideration falls between the values set forth under “Initial Consideration” in
Schedule II); (ii) the estimated total Deferred Consideration, assuming payment of five
Deferred Consideration Units on and as of July 31, 2009 and payment of the remaining five Deferred
Consideration Units on and as of October 30, 2009; and (iii) the estimated Purchase Price, which
shall be equal to the sum of the aggregate value of the Initial Consideration and the aggregate
Deferred Consideration calculated in accordance with clause (ii) above. The Purchaser shall pay at
least five Deferred Consideration Units on or prior to July 31, 2009 and the Deferred Consideration
shall be payable in full on or prior to October 30, 2009 pursuant to the terms of the Closing
Deferred Consideration Schedule. Subject to the foregoing sentence, Purchaser may pay a Deferred
Consideration Unit or Deferred Consideration Units at any time and from time to time, without
penalty, provided that, except as set forth in subsection Section 5.8(c), each
Deferred Consideration Unit shall be in an amount or, in any case in which such payment includes
Purchaser Common Stock, have a value (determined as provided in subsection (c)(ii) below), equal to
the Deferred Consideration Unit Price for the month in which the Deferred Consideration Payment
Date (as defined below) occurs.



     (b) The Deferred Consideration or any payment of any portion thereof shall be payable, at
Purchaser’s election, in cash or in Purchaser Common Stock or a combination of cash and Purchaser
Common Stock. Purchaser’s right to elect Purchaser Common Stock as the form of consideration is
subject to the further limitations set forth in Sections 5.7 and 5.8 and
conditioned upon the fulfillment of each of the following conditions on and as of the date of the
applicable payment (the “Deferred Consideration Payment Date”):



     (i) no Purchaser Material Adverse Effect shall have occurred and be continuing;



13









 





     (ii) immediately after giving effect to such payment, Seller would not own more than 9.9% of
the Purchaser Common Stock then outstanding;



     (iii) after giving effect to such payment, Seller shall not have received more than 5,653,398
shares of Purchaser Common Stock pursuant to this Agreement, and, except if required by the terms
of Section 5.18 herein, the filing of a Notification and Report Form pursuant to the HSR
Act, no consent or approval of Purchaser’s shareholders or any governmental or regulatory authority
or other Person pursuant to applicable Law or listing standards or the organizational documents of
Purchaser or any contract, judgment or order by which Purchaser or any of its Subsidiaries is bound
shall be required to be obtained by Purchaser in connection with such payment (after giving effect
all prior payments), including pursuant to NASDAQ Rule 4350(i);



     (iv) Purchaser (A) shall be in compliance with the applicable listing criteria, procedures and
guidelines of NASDAQ; (B) shall not have received notice from NASDAQ of its intent to delist the
Purchaser Common Stock; and (C) shall not have taken any steps to delist the Common Stock from
NASDAQ;



     (v) the Purchaser Common Stock proposed to be transferred shall have been authorized for
listing on NASDAQ, subject only to official notice of issuance;



     (vi) Purchaser shall be, and shall have been during the 90-day period immediately preceding
the Deferred Consideration Payment Date, subject to the reporting requirements of section 13 or
15(d) of the Exchange Act and shall have filed all required reports under section 13 or 15(d) of
the Exchange Act (other than Form 8-K reports), as applicable, during the 12-month period
immediately preceding such Deferred Consideration Payment Date;



     (vii) the price of Purchaser Common Stock as of the close of trading on the NASDAQ the last
Business Day prior to the Deferred Consideration Payment Date shall not be less than $10 per share;
and



     (viii) Purchaser shall not be insolvent or have made a general assignment for the benefit of
its creditors or any filing of a petition in commercial insolvency or reorganization; nor shall
there have been (A) any filing by any other Person against Purchaser or any of its Subsidiaries,
which shall not have been stayed or dismissed within 180 days after the filing date or any
adjudication of Purchaser or any such Subsidiary as bankrupt or insolvent, (B) any filing by or
with the consent of Purchaser or any such Subsidiary of any other proceeding for the appointment of
a receiver, a conciliator or an auditor thereof or other custodian or similar official for its
respective business or assets, (C) the appointment by any court of competent jurisdiction of a
receiver, a conciliator or an auditor or other custodian (permanent or temporary) of the assets of
Purchaser or any such Subsidiary, or any part thereof; or (D) the institution of proceedings for a
composition with creditors by or against Purchaser or any such Subsidiary, provided that, in the
case of items (A) through (D) of this subsection (viii) as applied to a Subsidiary of Purchaser,
such event or events would also reasonably be expected to adversely and materially affect the value
of Purchaser Common Stock after the applicable Deferred Consideration Payment Date (the events
specified in clauses (i) through (viii) collectively, the “Cash Payment Events”).



14









 





     (c) Deferred Stock Payments.



     (i) Subject to subsection (b) of this Section, if Purchaser elects to pay one or more Deferred
Consideration Units in the form of Purchaser Common Stock (each such payment, a “Deferred Stock
Payment”), Purchaser shall so notify Seller in writing at least 15 Business Days prior to the
Deferred Consideration Payment Date on which such Deferred Stock Payment is proposed to be made.
Such notice shall (A) include the proposed Deferred Consideration Payment Date, the applicable
Deferred Consideration Unit Price for such date and the number of Deferred Consideration Units to
be paid in cash and/or in the form of Purchaser Common Stock on such date; (B) include an estimate
of the number of shares of Purchaser Common Stock (including the percentage of Purchaser Common
Stock proposed to be transferred expressed as a percentage of the total Purchaser Common Stock
outstanding after giving effect to the proposed Deferred Stock Payment) comprising such Deferred
Stock Payment and the estimated value thereof, determined as of the date of such notice in
accordance with the principles set forth in clause (ii) below; (C) specify the amount of any cash
to be paid on such Deferred Consideration Payment Date; and (D) include an estimate of the Deferred
Consideration Payment Date Schedule, substantially in the form attached hereto as Schedule III,
reflecting the total value of the Deferred Consideration payment and the balance of the Deferred
Consideration after giving effect to such payment and assuming that future payments of Deferred
Consideration Units are made exclusively on July 31, 2009 (in such case, up to the minimum amount
required to be paid on or prior to such date) and October 30, 2009. Within five Business Days of
its receipt of such notice, Seller shall notify Purchaser in writing of the number of shares of
Purchaser Common Stock then beneficially owned by Seller.



     (ii) The value of the Deferred Stock Payment shall be calculated by multiplying the number of
shares of Purchaser Common Stock being delivered in such Deferred Stock Payment by the Purchaser
VWAP. Immediately upon Seller’s receipt of the Deferred Stock Payment, the estimated Deferred
Consideration shall be reduced by such amount.



     (iii) In the case of a Deferred Stock Payment, on the relevant Deferred Consideration Payment
Date:




     (A) The representations and warranties of Purchaser contained in this Agreement,
without regard to any materiality or material adverse effect qualifier contained therein,
shall be true and correct on and as of such Deferred Consideration Payment Date as if made
at and as of such Deferred Consideration Payment Date (except for any representations and
warranties made as of a specified date, which shall be true and correct as of the specified
date), except where the failure of such representations and warranties to be true and
correct have not had and would not reasonably be expected to have, a Purchaser Material
Adverse Effect.




     (B) Purchaser shall have performed in all material respects all obligations required to
be performed by it under this Agreement at or prior to such Deferred Consideration Payment
Date.




     (C) Purchaser shall deliver, or cause to be delivered, to Seller a certificate dated as
of such Deferred Consideration Payment Date and signed by a duly authorized



15









 






officer of Purchaser, satisfactory in form to Seller (x) to the effect of Section
2.4(c)(iii)(A) and (B) above; and (y) confirming the satisfaction of each of the
conditions set forth in Section 2.4(b).




     (D) Seller shall deliver, or cause to be delivered, to Purchaser a certificate dated as
of such Deferred Consideration Payment Date and signed by a duly authorized officer of
Seller, satisfactory in form to Purchaser, setting forth the total number of shares of
Purchaser Common Stock beneficially owned by Seller as of such Deferred Consideration
Payment Date.




     (E) Purchaser shall deliver a Deferred Consideration Payment Date Schedule reflecting
the estimated Deferred Consideration payment pursuant to subsection (c)(i)(D) above.




     (F) Either (x) if required by the HSR Act, each party shall have filed a Notification
and Report Form pursuant to the HSR Act and all required waiting periods under the HSR Act
for a Deferred Stock Payment shall have expired or been terminated, or (y) Seller’s ultimate
parent entity, as defined under 16 C.F.R. Section 801.1(a)(3), shall have provided a further
representation confirming its intent to hold any Purchaser Common Stock, directly or
indirectly, solely for the purpose of investment within the meaning of 16 C.F.R. Section
802.9.



     (d) Deferred Cash Payments.



     (i) Cash paid for any Deferred Consideration Unit (“Deferred Cash Payments”) shall
have a value equal to the face amount thereof. If at any time Purchaser elects to pay any Deferred
Consideration Unit in the form of a Deferred Cash Payment, or is prohibited from paying a Deferred
Consideration Unit in Purchaser Common Stock as a result of a Cash Payment Event, Purchaser shall
so notify Seller no later than two (2) Business Days prior to the applicable Deferred Consideration
Payment Date and shall provide the estimated Deferred Consideration Payment Date Schedule,
substantially in the form attached hereto as Schedule III, reflecting the total value of the
Deferred Consideration payment and the estimated balance of the Deferred Consideration after giving
effect to such payment and assuming that future payments of Deferred Consideration Units are made
exclusively on July 31, 2009 (in such case, up to the minimum amount required to be paid on or
prior to such date) and October 30, 2009 (which estimated Schedule shall be finalized and delivered
to Seller on the Deferred Consideration Payment Date), provided that in the case of a
Deferred Consideration payment that includes Purchaser Common Stock, Seller shall follow the
procedures set forth in subsection (c) above, and provided further, that Deferred
Cash Payments due and payable pursuant to Sections 2.5, 5.7 and 5.8 shall
be payable in accordance with the procedural requirements of such Sections.



     (ii) In the case of a Deferred Cash Payment, on the relevant Deferred Consideration Payment
Date:




     (A) The representations and warranties of Purchaser contained in Section 4.1
(Existence, Qualification and Power), Section 4.2 (Consents and Approvals; No
Violation), Section 4.15 (Solvency) and Section 4.17 (Brokers and Finders)
without



16









 






regard to any materiality or material adverse effect qualifier contained therein, shall
be true and correct on and as of such Deferred Consideration Payment Date as if made at and
as of such Deferred Consideration Payment Date (except for any representations and
warranties made as of a specified date, which shall be true and correct as of the specified
date), except where the failure of such representations and warranties to be true and
correct have not had and would not reasonably be expected to have, individually or in the
aggregate, a Purchaser Material Adverse Effect.




     (B) Purchaser shall have performed in all material respects all obligations required to
be performed by it under this Agreement at or prior to the Deferred Consideration Payment
Date.




     (C) Purchaser shall deliver, or cause to be delivered, to Seller a certificate dated as
of such Deferred Consideration Payment Date and signed by a duly authorized officer of
Purchaser, satisfactory in form to Seller to the effect of Section 2.4(d)(ii)(A) and
(B) above.




     (D) Purchaser shall deliver a Deferred Consideration Payment Date Schedule reflecting
the Deferred Consideration payment pursuant to subsection (d)(i) above.



     (e) Deliveries. Deferred Stock Payments and Deferred Cash Payments shall be delivered
to such account as Seller may designate in writing to Purchaser, which designation shall remain in
effect until Seller shall otherwise notify Purchaser in writing in accordance with Section
9.2.



     2.5 Events of Default. If (a) Purchaser has not, in accordance with Section
2.4(a) above, (i) paid a total of at least five Deferred Consideration Units by July 31, 2009
(the “Six-Month Default”); or (ii) paid a total of ten Deferred Consideration Units by
October 30, 2009 (the “Nine-Month Default”); or (b) Purchaser is in material breach of any
of its obligations in this Agreement and such breach is incapable of being cured within ten
Business Days of written notice of such breach, the remaining Deferred Consideration, which shall
be equal to the Purchase Price as set forth on the Closing Deferred Consideration Schedule
minus the value (determined in accordance with Section 2.4(a) above) of the Deferred
Consideration previously paid by Purchaser (including any payments pursuant to Section 5.8
hereof), shall become due and payable immediately, and Purchaser shall, within five Business Days
thereafter, pay such remaining Deferred Consideration in cash by wire transfer of immediately
available funds to an account designated in writing by Seller. If Purchaser fails to pay such
amount within such five Business Day period, upon such failure and during the continuation thereof
until payment in full, the remaining unpaid Deferred Consideration shall bear interest at a daily
compounded rate equal to 18% per annum or the highest rate permitted by applicable Law, whichever
is lower. Interest shall be computed on a 360-day year and charged for the actual number of days
elapsed.



17









 





ARTICLE III




REPRESENTATIONS AND WARRANTIES OF SELLER




     Seller represents and warrants to Purchaser as of the date of this Agreement and as of the
Closing Date as contemplated by Section 6.2(a), that the statements contained in this
Article III are true and correct.



     3.1 Existence, Authorization and Validity of Agreement.



     (a) Seller is duly organized, validly existing and in good standing under the Laws of the
jurisdiction of its organization and has all requisite power and authority to own, lease and
operate its properties and to carry on its businesses as currently conducted. Seller has full
legal right, power and authority to execute and deliver, and perform its obligations under, this
Agreement.



     (b) This Agreement has been duly and validly executed and delivered by Seller and (assuming
the due authorization, execution and delivery hereof by all parties hereto other than Seller)
constitutes a valid and binding obligation of Seller, enforceable against Seller in accordance with
its terms, subject to limitations imposed by applicable bankruptcy, insolvency, reorganization,
moratorium and similar Laws affecting the rights and remedies of creditors generally and to general
principles of equity.



     3.2 Consents and Approvals; No Violation 



     (a) Neither the execution and delivery of this Agreement by Seller nor the consummation of the
transactions contemplated hereby will (i) violate or conflict with or result in any breach of any
provision of Seller’s organizational documents as in effect as of the date of this Agreement; (ii)
assuming all consents, approvals and authorizations contemplated by subsection (b) below have been
obtained and all filings described in such clauses have been made, conflict with or violate any
Law; (iii) violate or conflict with, or result in a breach of any provision of, or require any
consent, waiver or approval or result in a default or give rise to any right of termination,
cancellation, modification or acceleration (or an event that, with the giving of notice, the
passage of time or otherwise, would constitute a default or give rise to any such right) under any
of the terms, conditions or provisions of any note, bond, mortgage, lease, license, agreement,
contract, indenture or other instrument or obligation to which Seller is a party or by which Seller
or any of its properties or assets may be bound, or (iv) violate any order, writ, injunction,
decree, statute, rule or regulation applicable to Seller or by which any of its assets is bound.



     (b) Except as contemplated by Section 5.18, the execution, delivery and performance of
this Agreement by Seller and the consummation of the transactions contemplated hereby by Seller
does not and will not require any consent, approval, authorization or permit of, or filing with or
notification to, any Governmental Entity, except any such consent, approval, authorization, permit,
filing, or notification the failure of which to make or obtain has not had and would not reasonably
be expected to have, individually or in the aggregate, a Seller Material Adverse Effect.



18









 





     3.3 Title to the GAM Shares and the Note. Subject to the terms and conditions hereof
and the terms and conditions set forth in the Note Assignment Agreement, at the Closing, Seller
shall deliver to Purchaser good and valid title to the GAM Shares and the Note, free and clear of
any Liens.



     3.4 Securities Act.



     (a) Seller acknowledges that, on issuance, any Purchaser Common Stock transferred hereunder to
Seller shall not be registered under the Securities Act or under any state securities laws and may
not be offered or sold within the United States or to, or for the account or benefit of, U.S.
persons except pursuant to an effective registration statement filed with the SEC or pursuant to an
exemption from the registration requirements of the Securities Act.



     (b) Seller is an “accredited investor” within the meaning of Rule 501(a) of Regulation D under
the Securities Act.



     3.5 Brokers and Finders. No agent, broker, investment banker, financial advisor or
other firm or person is or shall be entitled, as a result of any action, agreement or commitment of
Seller or any of its Affiliates, to any broker’s, finder’s, financial advisor’s or other similar
fee or commission in connection with any of the transactions contemplated by this Agreement, except
Chris Catalano, whose fees and expenses shall be paid by Seller.



     3.6 HSR Act. Any Purchaser Common Stock paid to Seller and any Purchaser Common Stock
held, directly or indirectly, by Seller’s ultimate parent entity, as defined under 16 C.F.R.
Section 801.1(a)(3), at the Closing will be held solely for the purpose of investment within the
meaning of 16 C.F.R. Section 802.9.



ARTICLE IV




REPRESENTATIONS AND WARRANTIES OF PURCHASER




     Purchaser represents and warrants to Seller that the statements contained in this Article IV
are true and correct as of the date hereof and as of the Closing Date as contemplated by
Section 6.1(a), except as is disclosed in reasonable detail in the most recent annual
report on Form 10-K filed by Purchaser with the SEC and in any Purchaser SEC Reports filed
subsequent to such annual report, in the case of both such annual report and such other Purchaser
SEC Reports, filed prior to the date of this Agreement (other than disclosures referred to in the
“Factors That May Affect Future Results,” “Risk Factors” or “Forward Looking Statements” sections
of such Form 10-K or Purchaser SEC Reports). Purchaser further represents and warrants to Seller
that certain of the statements contained in this Article IV are true and correct as of the relevant
Deferred Consideration Payment Date as contemplated by Section 2.4(c)(iii)(A) or
Section 2.4(d)(ii)(A), as applicable, in each case except as is disclosed in reasonable
detail in the most recent annual report on Form 10-K filed by Purchaser with the SEC and in any
Purchaser SEC Reports filed subsequent to such annual report but prior to the relevant Deferred
Consideration Payment Date (other than disclosures referred to in the “Factors That May Affect
Future Results,” “Risk Factors” or “Forward Looking Statements” sections of such Form 10-K or
Purchaser SEC Reports).



19









 





     4.1 Existence, Qualification and Power. 



     (a) Purchaser and each Subsidiary thereof is duly organized, validly existing and in good
standing under the Laws of the jurisdiction of its organization and has all requisite corporate
power and authority to own, lease and operate its properties and to carry on its businesses as
currently conducted. Purchaser has full legal right, power and authority to execute and deliver,
and perform its obligations under, this Agreement. Purchaser is duly qualified or licensed and in
good standing to do business in each jurisdiction in which the property owned, leased or operated
by it or the nature of the business conducted by it makes such qualification or licensing
necessary, except where the failure to be so duly qualified or licensed and in good standing has
not had and would not reasonably be expected to have, individually or in the aggregate, a Purchaser
Material Adverse Effect.



     (b) This Agreement has been duly and validly executed and delivered by Purchaser and (assuming
the due authorization, execution and delivery hereof by all parties hereto other than Purchaser)
constitutes a valid and binding obligation of Purchaser, enforceable against Purchaser in
accordance with its terms, subject to limitations imposed by applicable bankruptcy, insolvency,
reorganization, moratorium and similar Laws affecting the rights and remedies of creditors
generally and to general principles of equity.



     4.2 Consents and Approvals; No Violation 



     (a) Neither the execution and delivery of this Agreement by Purchaser nor the consummation of
the transactions contemplated hereby will (i) violate or conflict with or result in any breach of
any provision of Purchaser’s organizational documents as in effect as of the date of this
Agreement, (ii) assuming all consents, approvals and authorizations contemplated by subsection (b)
below have been obtained and all filings described in such clauses have been made, conflict with or
violate any Law, (iii) violate or conflict with, or result in a breach of any provision of, or
require any consent, waiver or approval or result in a default or give rise to any right of
termination, cancellation, modification or acceleration (or an event that, with the giving of
notice, the passage of time or otherwise, would constitute a default or give rise to any such
right) under any of the terms, conditions or provisions of any note, bond, mortgage, lease,
license, agreement, contract, indenture or other instrument or obligation to which Purchaser is a
party or by which Purchaser or any of its properties or assets may be bound, or (iv) violate any
order, writ, injunction, decree, statute, rule or regulation applicable to Purchaser or by which
any of its assets are bound.



     (b) Except as contemplated by Section 5.18, the execution, delivery and performance of
this Agreement by Purchaser and the consummation of the transactions contemplated hereby by
Purchaser does not and will not require any consent, approval, authorization or permit of, or
filing with or notification to, any Governmental Entity, except (i) the applicable requirements of
the Exchange Act and the rules and regulations promulgated thereunder; and (ii) any such consent,
approval, authorization, permit, filing, or notification the failure of which to make or obtain (A)
would not prevent or materially delay the consummation of the transactions contemplated hereby or
(B) has not had and would not reasonably be expected to have a Purchaser Material Adverse Effect.



20









 





     4.3 Capitalization.



     (a) The authorized capital stock of Purchaser consists of 50 million shares, of which 45
million shares are Purchaser Common Stock and five million shares are preferred stock. As of
February 10, 2009, 30,207,213 shares of Purchaser Common Stock and no shares of preferred stock
were issued and outstanding. All of the issued and outstanding shares of Purchaser Common Stock
have been duly authorized and validly issued and are fully paid, non-assessable and free of
preemptive rights.



     (b) Except as provided for in this Agreement or as provided for under plans or agreements
disclosed in reasonable detail in the last annual report on Form 10-K filed by Purchaser with the
SEC and in any Purchaser SEC Reports filed subsequent to such annual report, in the case of both
such annual report and such other Purchaser SEC Reports, filed prior to the date of this Agreement
or the relevant Deferred Consideration Payment Date, as applicable, there are no options, warrants,
rights, scrip, calls, convertible or exchangeable securities, “phantom” stock rights, stock
appreciation rights, stock-based performance units, commitments, contracts, arrangements or
undertakings of any kind to which Purchaser is a party or by which it is bound (i) obligating
Purchaser to issue, deliver or sell, or cause to be issued, delivered or sold, to any Person (other
than Seller) additional shares of capital stock of, or other equity interests in, or any security
convertible into or exercisable for or exchangeable into, any capital stock of, or other equity
interest in, Purchaser; or (ii) obligating Purchaser to issue, grant, extend or enter into any such
option, warrant, right, scrip, call, convertible or exchangeable security, commitment, contract,
arrangement or undertaking.



     4.4 SEC Reports. Purchaser has filed all registration statements, forms, reports and
other documents required to be filed by Purchaser with the SEC since January 1, 2008. All such
registration statements, forms, reports and other documents (including those that Purchaser may
file after the date hereof until the payment in full of the Deferred Consideration and including
all documents incorporated by reference in such registration statements, forms, reports and other
documents) are referred to herein as the “Purchaser SEC Reports.” The Purchaser SEC
Reports (a) were or will be filed on a timely basis, (b) at the time filed, complied, or will
comply when filed, as to form in all material respects with the applicable requirements of the
Securities Act and the Exchange Act, as the case may be, and the rules and regulations of the SEC
thereunder applicable to such Purchaser SEC Reports, and (c) did not or will not at the time they
were or are filed contain any untrue statement of a material fact or omit to state a material fact
required to be stated in such Purchaser SEC Reports or necessary in order to make the statements in
such Purchaser SEC Reports, in the light of the circumstances under which they were made, not
misleading. As of the date of this Agreement, there are no outstanding or unresolved comments in
comment letters received from the SEC staff. As of the date of this Agreement, none of the
Purchaser SEC Reports is the subject of ongoing SEC review or outstanding SEC comment. None of
Purchaser’s Subsidiaries is required to file any form, report, registration, statement or other
document with the SEC.



     4.5 Financial Statements; No Purchaser Material Adverse Effect.



     (a) The Audited Annual Financial Statements (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise expressly



21









 




noted therein; (ii) fairly present the financial condition of Purchaser and its Subsidiaries
(including the Company for purposes of this Section 4.5) as of the date thereof and their
results of operations for the period covered thereby in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted therein; and (iii) show
all material Indebtedness and other liabilities, direct or contingent, of Purchaser and its
Subsidiaries (including the Company for purposes of this Section 4.5) as of the date
thereof, including liabilities for taxes, material commitments and Indebtedness.




     (b) The Unaudited Interim Financial Statements (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise expressly noted
therein, and (ii) fairly present the financial condition of Purchaser and its Subsidiaries
(including the Company for purposes of this Section 4.5) as of the date thereof and their
results of operations for the period covered thereby, subject, in the case of clauses (i) and (ii),
to normal year-end audit adjustments.



     (c) Since the date of the Audited Annual Financial Statements, there has been no event or
circumstance that has had or could reasonably be expected to have a Purchaser Material Adverse
Effect.



     4.6 Litigation. There are no actions, suits, proceedings, claims or disputes pending
or, to the knowledge of Purchaser after due and diligent investigation, threatened or contemplated,
at law, in equity, in arbitration or before any Governmental Entity, by or against Purchaser or any
of its Subsidiaries or against any of their properties or revenues that (a) purport to affect this
Agreement or any of the transactions contemplated hereby; or (b) could reasonably be expected to
have a Purchaser Material Adverse Effect.



     4.7 No Default. Neither Purchaser nor any Subsidiary thereof is in default under or
with respect to any Contractual Obligation that would reasonably be expected to have a Purchaser
Material Adverse Effect.



     4.8 Ownership of Property; Liens. Each of Purchaser and its Subsidiaries has good
record and marketable title in fee simple to, or valid leasehold interests in, all real property
necessary or used in the ordinary conduct of its business, except for such defects in title as
would not reasonably be expected to have a Purchaser Material Adverse Effect. The property of
Purchaser and its Subsidiaries is subject to no Liens except for (a) Liens relating to the Credit
Facility; (b) statutory liens for current Taxes, assessments or other governmental charges not yet
delinquent or the amount or validity of which is being contested in good faith by appropriate
proceedings; (c) materialmen’s, mechanics and similar statutory liens incurred in the ordinary
course of business; (d) zoning, entitlement and other land use regulations by Governmental
Entities; (e) the interests of the lessors and sublessors of any leased properties; and (f) Liens
that do not materially interfere with the present use of the properties they affect.



     4.9 Environmental Matters.



     (a) Purchaser and its Subsidiaries conduct in the ordinary course of business a review of the
effect of existing Environmental Laws and claims alleging potential liability or responsibility for
violation of any Environmental Law on their respective businesses, operations



22









 




and properties, and as a result thereof Purchaser has reasonably concluded that such
Environmental Laws and claims could not reasonably be expected to have a Purchaser Material Adverse
Effect.




     (b) Purchaser is not subject to any Environmental Liabilities that could reasonably be
expected to have a Purchaser Material Adverse Effect, and Purchaser is not aware of any conditions
or circumstances that could give rise to such Environmental Liabilities.



     4.10 Insurance. The properties of Purchaser and its Subsidiaries are insured with
financially sound and reputable insurance companies not Affiliates of Purchaser, in such amounts
(after giving effect to any self-insurance compatible with the following standards), with such
deductibles and covering such risks as are customarily carried by companies engaged in similar
businesses and owning similar properties in localities where Purchaser or the applicable Subsidiary
operates.



     4.11 Taxes.



     (a) All material Tax Returns required by applicable Law to be filed by or with respect to
Purchaser or any Purchaser Subsidiary for all taxable periods ending on or before the date hereof
have been timely filed (taking into account any extension of time within which to file) in
accordance with all applicable Laws. All such Tax Returns are true, correct, and complete in all
material respects.



     (b) Purchaser and each of its Subsidiaries has duly and timely paid or has duly and timely
withheld and remitted to the appropriate Taxing Authority all material Taxes due and payable, or,
where payment is not yet due, has established in accordance with GAAP an adequate accrual for all
Taxes on the most recent financial statements contained in the Purchaser SEC Reports.



     (c) The most recent financial statements contained in the Purchaser SEC Reports reflect an
adequate reserve for all Taxes payable by Purchaser and its Subsidiaries for all taxable periods
and portions thereof through the date of such financial statements.



     (d) There is no claim, audit, action, suit, proceeding or investigation pending or, to the
knowledge of Purchaser, threatened against or with respect to Purchaser or any of its Subsidiaries
in respect of any Tax except for such claims, audits, actions, suits, proceedings or investigations
as would not reasonably be expected to have a Purchaser Material Adverse Effect.



     (e) No agreements have been made by Purchaser or any of its Subsidiaries for the extension of
time or the waiver of the statute of limitations for the assessment or payment of any material
Taxes except for such agreements as would not reasonably be expected to have a Purchaser Material
Adverse Effect.



     (f) Neither Purchaser nor any of its Subsidiaries has “participated” in any “reportable
transaction” or “listed transaction” within the meaning of Treasury Regulations Section
1.6011-4(b).



23









 





     4.12 Company Taxes.



     (a) The Company has timely filed all material Tax Returns required to be filed under
applicable Law by the Company for all taxable periods ending on or before the date hereof taking
into account all available extensions. The Company has timely paid all material Taxes required to
be paid by it shown on such Tax Returns, except to the extent such Taxes are being contested in
good faith; and



     (b) the Company has not “participated” in any “reportable transaction” or “listed transaction”
within the meaning of Treasury Regulations Section 1.6011-4(b).



     4.13 ERISA Compliance.



     (a) Each Plan, and each other employee benefit plan, program, arrangement, agreement or
commitment, is in compliance in all material respects with the applicable provisions of ERISA, the
Code and other federal or state Laws, except for such noncompliance as could not reasonably be
expected to have a Purchaser Material Adverse Effect. Purchaser and each ERISA Affiliate have made
all required contributions to each Plan subject to Section 412 of the Code, and no application for
a funding waiver or an extension of any amortization period pursuant to Section 412 of the Code has
been made with respect to any Plan, except as could not reasonably be expected to have a Purchaser
Material Adverse Effect.



     (b) There are no pending or, to the best knowledge of Purchaser, threatened claims, actions or
lawsuits, or action by any Governmental Entity, with respect to any Plan, or with respect to the
compensation or employment of any of Purchaser’s or its Subsidiaries’ current, prospective or
former employees or independent contractors, that could reasonably be expected to have a Purchaser
Material Adverse Effect. To the best knowledge of Purchaser, there has been no prohibited
transaction or violation of the fiduciary responsibility rules with respect to any Plan that has
resulted or could reasonably be expected to result in a Purchaser Material Adverse Effect.



     (c) Except as could not reasonably be expected to have a Purchaser Material Adverse Effect:
(i) no ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan has any
Unfunded Pension Liability; (iii) neither Purchaser nor any ERISA Affiliate has incurred, or
reasonably expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan
(other than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither Purchaser
nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event
has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such
liability) under Section 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v)
neither Purchaser nor any ERISA Affiliate has engaged in a transaction that would be subject to
Section 4069 or 4212(c) of ERISA.



     4.14 Purchaser Intellectual Property. Purchaser and its Subsidiaries own, or possess
the right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent
rights, franchises, licenses, trade secrets, domain names, know-how and other intellectual property
rights (collectively, “IP Rights”) that are reasonably necessary for the operation of their
respective businesses, without conflict with the rights of any other Person, except to the extent
that any such conflict could not reasonably be expected to have a Purchaser Material Adverse
Effect. To the best knowledge of Purchaser, no slogan or other advertising device, product,



24









 




process, method, substance, part, software, work of authorship or other material now employed,
or now contemplated to be employed, by Purchaser or any Subsidiary infringes upon any rights held
by any other Person. Except as provided for in this Agreement, no claim or litigation regarding
any of the foregoing is pending or, to the best knowledge of Purchaser, threatened, which could
reasonably be expected to have a Purchaser Material Adverse Effect.




     4.15 Solvency. Purchaser is, and after giving effect to the incurrence of all
obligations being incurred in connection herewith and will be and will continue to be, individually
and together with its Subsidiaries on a consolidated basis, Solvent. For the purposes of this
Agreement, the term “Solvent” when used with respect to any Person, means that, as of the
Closing and immediately after consummating the transactions contemplated hereby, (a) the amount of
the “fair saleable value” of the assets of such Person will, as of such date, exceed (i) the value
of all “liabilities of such Person, including contingent and other liabilities,” as of such date,
as such quoted terms are generally determined in accordance with applicable Laws governing
determinations of the insolvency of debtors; and (ii) the amount that will be required to pay the
probable liabilities of such Person on its existing debts (including contingent and other
liabilities) as such debts become absolute and mature; (b) such Person will not have, as of such
date, an unreasonably small amount of capital for the operation of the businesses in which it
intends to engage or propose to be engaged following the Closing Date; and (c) such Person will be
able to pay its liabilities, including contingent and other liabilities, as they mature. For
purposes of this definition, “not have an unreasonably small amount of capital for the operation of
the businesses in which it is engaged or proposed to be engaged” and “able to pay its liabilities,
including contingent and other liabilities, as they mature” means that, as of the Closing and
immediately after consummating the transactions contemplated hereby, the relevant Person will be
able to generate enough cash from operations, asset dispositions or refinancing, or a combination
thereof, to meet its obligations as they become due.



     4.16 Securities Act.



     (a) Purchaser is acquiring the GAM Shares solely for the purpose of investment and not with a
view to, or for sale in connection with, any distribution thereof in violation of the Securities
Act. Purchaser acknowledges that the GAM Shares have not been registered under the Securities Act
or under any state securities laws and may not be offered or sold within the United States or to,
or for the account or benefit of, U.S. persons except pursuant to an exemption from the
registration requirements of the Securities Act.



     (b) Purchaser is an “accredited investor” within the meaning of Rule 501(a) of Regulation D
under the Securities Act.



     4.17 Brokers and Finders. No agent, broker, investment banker, financial advisor or
other firm or person is or shall be entitled, as a result of any action, agreement or commitment of
Purchaser or any of its Affiliates, to any broker’s, finder’s, financial advisor’s or other similar
fee or commission in connection with any of the transactions contemplated by this Agreement.



25









 





ARTICLE V




ADDITIONAL AGREEMENTS




     5.1 Conduct of Business of Purchaser. Except for any actions that Purchaser’s Board
of Directors may, in good faith, determine to be inconsistent with their duties or Purchaser’s
obligations under applicable Law, and except for actions that the Purchaser is permitted to take
under the Credit Facility (whether by the terms thereof or by amendment thereof or by waiver or
consent of the lender, in each case subject to the limitation set forth in Section 5.19(ii)
herein), so long as any portion of the Deferred Consideration remains unpaid, Purchaser shall, and
shall cause each of its Subsidiaries to, use commercially reasonable efforts to carry on its
business in the ordinary course of business and use reasonable best efforts to maintain and
preserve its and its Subsidiaries’ business (including its organization, assets, properties,
goodwill and insurance coverage) and preserve its business relationships with customers, strategic
partners, suppliers, distributors and others having business dealings with it including, without
limitation:



     (a) (i) preserve, renew and maintain in full force and effect its legal existence and good
standing under the Laws of the jurisdiction of its organization; (ii) take all reasonable action to
maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the
normal conduct of its business, except to the extent that failure to do so could not reasonably be
expected to have a Purchaser Material Adverse Effect; and (iii) preserve or renew all of its
registered patents, trademarks, trade names and service marks, the non-preservation of which could
reasonably be expected to have a Purchaser Material Adverse Effect;



     (b) comply in all material respects with the requirements of all Laws and all orders, writs,
injunctions and decrees applicable to it or to its business or property, except in such instances
in which (i) such requirement of Law or order, writ, injunction or decree is being contested in
good faith by appropriate proceedings diligently conducted; or (ii) the failure to comply therewith
could not reasonably be expected to have a Purchaser Material Adverse Effect;



     (c) unless contested in good faith by appropriate proceedings diligently conducted and
adequate reserves in accordance with GAAP are being maintained by Purchaser or its Subsidiaries,
pay and discharge as the same shall become due and payable, all its obligations and liabilities,
including (i) all tax liabilities, assessments and governmental charges or levies upon it or its
properties or assets; (ii) all lawful claims which, if unpaid, would by Law become a Lien upon its
property; and (iii) all Indebtedness, as and when due and payable, but subject to any subordination
provisions contained in any instrument or agreement evidencing such Indebtedness;



     (d) (i) maintain, preserve and protect all of its material properties and equipment necessary
in the operation of its business in good working order and condition, ordinary wear and tear
expected except where the failure to do so could not reasonably be expected to have a Purchaser
Material Adverse Effect; (ii) make all necessary repairs thereto and renewals and replacements
thereof except where the failure to do so could not reasonably be expected to have a Purchaser
Material Adverse Effect; and (iii) use the standard of care typical in the industry in the
operation and maintenance of its facilities;



26









 





     (e) maintain with financially sound and reputable insurance companies not Affiliates of
Purchaser, insurance with respect to its properties and business against loss or damage of the
kinds customarily insured against by Persons engaged in the same or similar business, of such types
and in such amounts (after giving effect to any self-insurance compatible with the following
standards) as are customarily carried under similar circumstances by such other Persons and
providing for not less than 30 days’ prior notice to Seller of termination, lapse or cancellation
of such insurance; and



     (f) (i) maintain proper books of record and account, in which full, true and correct entries
in conformity with GAAP consistently applied shall be made of all financial transactions and
matters involving the assets and business of Purchaser or such Subsidiary, as the case may be; and
(ii) maintain such books of record and account in material conformity with all applicable
requirements of any Governmental Authority having regulatory jurisdiction over Purchaser or such
Subsidiary, as the case may be.



     5.2 Negative Covenants. Except for actions that the Purchaser is permitted to take
under the Credit Facility (whether by the terms thereof or by amendment thereof or by waiver or
consent of the lender, in each case subject to the limitation set forth in Section 5.19(ii)
herein), so long as any portion of the Deferred Consideration remains unpaid, (a) Purchaser shall
not declare or make, directly or indirectly, any Restricted Payment, or incur any obligation
(contingent or otherwise) to do so, and (b) Purchaser shall not, nor shall it permit any of its
Subsidiaries to, directly or indirectly:



     (i) enter into any transaction of any kind with any Affiliate of Purchaser, whether or not in
the ordinary course of business, other than on fair and reasonable terms substantially as favorable
to Purchaser or such Subsidiary as would be obtainable by Purchaser or such Subsidiary at the time
in a comparable arm’s length transaction with a Person other than an Affiliate;



     (ii) enter into any Contractual Obligation that limits its ability to pay the Deferred
Consideration pursuant to the provisions set forth in Section 2.4; or



     (iii) make any optional or voluntary principal payment, prepayment, repurchase or redemption
of or otherwise optionally or voluntarily defease or segregate funds with respect to Indebtedness,
except in the ordinary course of business.



     5.3 8-K Obligation. Within one Business Day of the date hereof, Purchaser shall issue
a press release in the form previously agreed upon by Purchaser and Seller and file a report on
Form 8-K disclosing the execution of this Agreement and the transactions contemplated herein and
attaching such press release and this Agreement (the “8-K Filing”).



     5.4 NASDAQ Listing. Purchaser agrees to use commercially reasonable efforts to
maintain the listing of the Purchaser Common Stock on the NASDAQ during the term of this Agreement.



27









 





     5.5 Legend.



     (a) Seller agrees that all certificates or other instruments representing the Purchaser Common
Stock subject to this Agreement will bear a legend substantially to the following effect:




THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR SECURITIES LAWS OF ANY STATE AND MAY NOT BE TRANSFERRED, SOLD OR
OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION STATEMENT RELATING THERETO IS IN EFFECT
UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER SUCH ACT OR SUCH LAWS.



     (b) Upon request of Seller and upon receipt by Purchaser of an opinion of counsel reasonably
satisfactory to Purchaser to the effect that such legend is no longer required under the Securities
Act and applicable state Laws, Purchaser shall promptly cause the legend to be removed from any
certificate for Purchaser Common Stock to be transferred in accordance with the terms of this
Agreement.



     5.6 Rule 144 Reporting. Purchaser agrees to, for so long as Seller owns any Purchaser
Common Stock acquired pursuant to this Agreement:



     (a) make and keep public information available, as those terms are understood and defined in
Rule 144(c)(1), at all times from and after the date of this Agreement;



     (b) file with the SEC, in a timely manner, all reports and other documents required of
Purchaser under the Exchange Act, which reports shall not contain any untrue statement of a
material fact or omit to state a material fact required to be stated in such filing or necessary in
order to make the statements in such SEC filing, in the light of the circumstances under which they
were made, not misleading; and



     (c) furnish to Seller forthwith upon request: a written statement by Purchaser as to its
compliance with the reporting requirements of the Exchange Act; and such other reports and
documents as Seller may reasonably request in availing itself of any rule or regulation of the SEC
allowing it to sell any such securities without registration.



     5.7 Reorganization Events.



     (a) If, prior to the payment in full of the Deferred Consideration, there occurs:



     (i) any consolidation, merger or other similar business combination of Purchaser with or into
another Person, in each case pursuant to which the Purchaser Common Stock will be converted into
cash, securities or other property of Purchaser or another Person;



     (ii) any sale, transfer, lease or conveyance to another Person of all or substantially all of
the property and assets of Purchaser, in each case pursuant to which the Purchaser Common Stock
will be converted into cash, securities or other property of another Person;



     (iii) any reclassification of the Purchaser Common Stock into other securities, including
securities other than Purchaser Common Stock;



28









 





     (iv) any statutory exchange of the outstanding shares of the Purchaser Common Stock for
securities of another Person (other than in connection with a merger or acquisition);


(any such event specified in this Section 5.7(a), a “Reorganization Event”), then
all remaining Deferred Consideration shall immediately become due and be payable to Seller in cash.




     (b) Purchaser (or its successor) shall, within five Business Days of the announcement of any
Reorganization Event, provide written notice to Seller of the consummation thereof, which notice
shall include the amount of remaining Deferred Consideration (as set forth in the Closing Deferred
Consideration Schedule and calculated pursuant to Section 2.4(a)), and not later than ten
Business Days after such announcement, pay the remaining Deferred Consideration to Seller by wire
transfer of immediately available funds to an account designated in writing by Seller.



     5.8 Liquidity Event; Excess Liquidity.



     (a) Upon the availability of Excess Liquidity on a Measurement Date or net proceeds of a
Liquidity Event (collectively, “Liquidity Event Proceeds”), Purchaser shall prepay the
remaining Deferred Consideration (as set forth in the Closing Deferred Consideration Schedule or
the Deferred Consideration Payment Date Schedule delivered in connection with a Deferred
Consideration Payment and calculated pursuant to Section 2.4(a)) to the full extent of the
Liquidity Event Proceeds. Such prepayment shall be made solely in the form of a Deferred
Consideration Cash Payment and in accordance with the procedures provided in subsection (b) below.



     (b) Purchaser shall, within five Business Days of the receipt or availability of Liquidity
Event Proceeds, provide written notice thereof to Seller, which notice shall include (i) the amount
of remaining Deferred Consideration (as set forth in the Closing Deferred Consideration Schedule or
any Deferred Consideration Payment Date Schedule delivered in connection with a Deferred
Consideration Payment and calculated pursuant to Section 2.4(a)); (ii) the Deferred
Consideration Unit Price for the proposed Deferred Consideration Payment Date; (iii) the proposed
Deferred Consideration Cash Payment and the number of Deferred Consideration Units such Deferred
Consideration Cash Payment would equal if rounded to the next whole number Unit; and (iv) if the
Liquidity Event Proceeds are less than the Deferred Consideration Unit Price (or multiple thereof)
for the month in which the Liquidity Event or Excess Liquidity occurs, the portion of a Deferred
Consideration Unit that remains unpaid after payment of the Liquidity Event Proceeds. Such unpaid
portion shall be expressed as a fraction, the numerator of which is (A) the Deferred Consideration
Unit Price for such month, multiplied by the number of Deferred Consideration Units
provided in subsection (iii) above, minus (B) the Liquidity Event Proceeds (the “Unpaid
Unit Amount”), and the denominator of which is the Deferred Consideration Unit Price (such
fraction, the “Unpaid Unit Fraction”). No later than five Business Days from the date of
any such notice, Purchaser shall pay the proposed Deferred Consideration Cash Payment to Seller by
wire transfer of immediately available funds to an account designated in writing by Seller.



     (c) Purchaser may pay the Unpaid Unit Amount on any future Deferred Consideration Payment Date
by multiplying the Unpaid Unit Fraction by the Deferred



29









 




Consideration Unit Price for the month in which such Deferred Consideration Payment Date
occurs, provided that any Unpaid Unit Amount resulting from a payment obligation payable on
or prior to July 31, 2009, must be fully paid on or prior to July 31, 2009, and any Unpaid Unit
Amount resulting from a payment obligation payable after July 31, 2009 must be fully paid on or
prior to October 30, 2009.




     5.9 Further Assurances. Subject to the terms and conditions hereof, each of the
parties hereto shall use its reasonable best efforts to take, or cause to be taken, all actions,
and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to
consummate the transactions contemplated hereby.



     5.10 Public Disclosure. Except as may be required by Law or stock market regulations,
(a) the press release announcing the execution of this Agreement shall be issued only in such form
as shall be mutually agreed upon by Purchaser and Seller; and (b) Purchaser and Seller shall each
use its commercially reasonable efforts to consult with the other party before issuing any other
press release or otherwise making any public statement with respect to this Agreement or the
transactions contemplated herein.



     5.11 LLC Agreement. Purchaser and Seller agree to cooperate to effectuate the
transfer of the GAM Shares and the Note in accordance with the terms of the LLC Agreement.



     5.12 Indemnity.



     (a) From and after the Closing, Purchaser agrees to indemnify and hold harmless each of Seller
and its Affiliates and each of their respective officers, directors, employees and agents (the
“Seller Indemnified Parties”), to the fullest extent lawful, from and against any and all
actions, suits, claims, proceedings, losses, damages, costs, expenses (including reasonable
attorneys’ fees and disbursements), liabilities and obligations, including losses resulting from
the diminution of value of any Purchaser Common Stock transferred to Seller pursuant to this
Agreement (collectively, “Losses”), arising from (i) any breach or any material inaccuracy
of any of Purchaser’s representations or warranties in this Agreement as of the Closing Date or the
Deferred Consideration Payment Date, as applicable, or such other date that the representations or
warranties were made; or (ii) Purchaser’s breach of any agreement or covenant made by Purchaser in
this Agreement.



     (b) From and after the Closing, Seller agrees to indemnify and hold harmless each of
Purchaser, its Affiliates and permitted assigns and each of their respective officers, directors,
employees and agents (the “Purchaser Indemnified Parties”) to the fullest extent lawful,
from and against any and all Losses arising from (i) any breach or any material inaccuracy of any
of Seller’s representations or warranties in this Agreement as of the Closing Date or the Deferred
Consideration Payment Date, as applicable, or such other date that the representations or
warranties were made; or (ii) Seller’s material breach of any agreement or covenant made by Seller
in this Agreement.



     (c) A party entitled to indemnification hereunder (each, an “Indemnified Party”) shall
give written notice to the party indemnifying it (the “Indemnifying Party”) of any claim
with respect to which it seeks indemnification promptly after the discovery by such Indemnified
Party



30









 




of any matters giving rise to a claim for indemnification; provided that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its
obligations under this Section unless and to the extent that the Indemnifying Party shall have been
actually prejudiced by the failure of such Indemnified Party to so notify such party. Such notice
shall describe in reasonable detail such claim. In case any such action, suit, claim or proceeding
is brought against an Indemnified Party, the Indemnified Party shall be entitled to hire, at its
own expense, separate counsel and participate in the defense thereof; provided, however, that the
Indemnifying Party shall be entitled to assume and conduct the defense thereof, unless the counsel
to the Indemnified Party advises such Indemnifying Party in writing that such claim involves a
conflict of interest (other than one of a monetary nature) that would reasonably be expected to
make it inappropriate for the same counsel to represent both the Indemnifying Party and the
Indemnified Party, in which case the Indemnified Party shall be entitled to retain its own counsel
at the cost and expense of the Indemnifying Party (except that the Indemnifying Party shall only be
liable for the legal fees and expenses of one law firm for all Indemnified Parties, taken together
with respect to any single action or group of related actions). If the Indemnifying Party assumes
the defense of any claim, all Indemnified Parties shall thereafter deliver to the Indemnifying
Party copies of all notices and documents (including court papers) received by the Indemnified
Party relating to the claim, and each Indemnified Party shall cooperate in the defense or
prosecution of such claim. Such cooperation shall include the retention and (upon the Indemnifying
Party’s request) the provision to the Indemnifying Party of records and information that are
reasonably relevant to such claim, and making employees available on a mutually convenient basis to
provide additional information and explanation of any material provided hereunder. The Indemnifying
Party shall not be liable for any settlement of any action, suit, claim or proceeding effected
without its written consent; provided, however, that the Indemnifying Party shall not unreasonably
withhold or delay its consent. The Indemnifying Party further agrees that it will not, without the
Indemnified Party’s prior written consent (which shall not be unreasonably withheld or delayed),
settle or compromise any claim or consent to entry of any judgment in respect thereof in any
pending or threatened action, suit, claim or proceeding in respect of which indemnification has
been sought hereunder unless such settlement or compromise includes an unconditional release of
such Indemnified Party from all liability arising out of such action, suit, claim or proceeding.




     (d) The cumulative indemnification obligation of (i) Purchaser to Seller and the Seller
Indemnified Parties or (ii) Seller to Purchaser and the Purchaser Indemnified Parties, shall in no
event exceed the Purchase Price (as set forth in the Closing Deferred Consideration Schedule).



     (e) Any claim for indemnification pursuant to this Section for breach of any representation or
warranty, can only be brought on or prior to the second anniversary of the Closing Date,
provided that if notice of a claim for indemnification pursuant to this Section for breach
of any such representation or warranty is brought prior to the end of such period, then the
obligation to indemnify in respect of such breach shall survive as to such claim, until such claim
has been finally adjudicated.



     (f) Except for the default provision of Section 2.5, the indemnity provided for in
this Section shall be the sole and exclusive monetary remedy of each Seller Indemnified Party and
each Purchaser Indemnified Party after the Closing for any Losses arising from (i) any breach of
any of Purchaser’s or Seller’s respective representations or warranties in this Agreement; or (ii)



31









 




Purchaser’s or Seller’s breach of any of their respective agreements or covenants in this
Agreement prior to the Closing Date, as the case may be, provided that nothing herein shall
limit in any way any party’s remedies in respect of fraud by any other party in connection with the
transactions contemplated hereby. For the avoidance of doubt, this subsection shall not apply to
Purchaser’s obligation to pay the Deferred Consideration and shall in no way limit any indemnity
obligation set forth in the Registration Rights Agreement or the right to equitable relief pursuant
to Section 9.11.




     (g) No
investigation of Purchaser by Seller, or of Seller by Purchaser, whether prior to or
after the date hereof shall limit any Indemnified Party’s exercise of any right under this
Section 5.12 or be deemed to be a waiver of any such right.



     (h) Any indemnification payments pursuant to this Section shall be treated as an adjustment to
the Purchase Price for U.S. federal income and applicable state and local tax purposes, unless a
different treatment is required by applicable Law.



     5.13 Solvency. Purchaser is, and after giving effect to the incurrence of all
obligations being incurred in connection herewith and will be and will continue to be so long as
all or any portion of the Deferred Consideration remains unpaid, individually and together with its
Subsidiaries on a consolidated basis, Solvent.



     5.14 Ranking. The obligation of Purchaser to pay the Deferred Consideration will,
with respect to payment rights and rights on liquidation, winding-up and dissolution, rank on a
parity with all senior unsecured Indebtedness of Purchaser.



     5.15 Post-Closing Cooperation and Retention of Records.



     (a) Following the Closing, Purchaser shall, and shall cause the Company to, (a) preserve and
keep the records of the Company (and its predecessors) held immediately prior to the Closing
relating to the business of the Company (and its predecessors) for so long as and to the extent
required by applicable Law (but in no event less than seven years after the Closing Date) and to
abide by all record retention agreements entered into with any Governmental Entity; and (b) to the
extent permitted by applicable Law, make such records available to Seller and its representatives
and provide them with reasonable access thereto, as may be reasonably required by Seller, including
in connection with any legal proceedings against or investigations by any Governmental Entity, and
in order to comply with its obligations under applicable Law and this Agreement or otherwise
reasonably necessary for the conduct of Seller’s business and operations. In the event Purchaser
or any of its Affiliates wishes to destroy any such records after that time in accordance with its
normal document retention policy, then Purchaser shall (or shall cause such Affiliate to) give 90
days’ prior written notice to Seller and (to the extent permitted by applicable Law) Seller shall
have the right at its option and expense, upon prior written notice given within such ninety-day
period, to take possession of the records within 60 days after the date such notice is given by
Seller to Purchaser.



     (b) From and after the Closing Date and upon the good faith request of Purchaser, Seller and
its Affiliates shall provide reasonable assistance to Purchaser in respect of Company records that
remain in Seller’s sole and exclusive possession following the Closing Date.



32









 





     5.16 Company Filings. Purchaser agrees that Seller shall have a reasonable
opportunity to review and comment on New Seller Disclosure in any registration statement proposed
to be filed with the SEC relating to the Company or any comparable offering document used in
connection with any offering of the Company’s securities by the Company or Purchaser (including
each amendment or supplement to any such document) prior to the three (3) year anniversary of the
Closing Date, and unless required by Law no such registration statement, offering document,
amendment or supplement containing New Seller Disclosure shall be so filed or otherwise published
without the prior written consent of Seller, such consent not to be unreasonably withheld.
Notwithstanding the foregoing, Seller shall have no obligation whatsoever to review or comment on
any New Seller Disclosure, provided that if Purchaser shall not have received comments on
any New Seller Disclosure from Seller within three Business Days of submission of such New Seller
Disclosure to Seller for review, then Seller shall be deemed to have waived its rights under this
Section.



     5.17 Purchaser Registration Statement. Not later than three Business Days prior to
the Closing, Purchaser shall deliver to Seller a draft of an S-3 Shelf Registration Statement
covering the Initial Stock Consideration in a form and substance reasonably acceptable to Seller.



     5.18 HSR Act. If required by the HSR Act, each party hereto agrees to make an
appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the
transactions contemplated by this Agreement as soon as practicable and to supply promptly any
additional information and documentary material that may be requested pursuant to the HSR Act. The
parties hereto will not take any action that will have the effect of delaying, impairing or
impeding the receipt of any required approvals.



     5.19 Credit Facility Amendment. Without the prior written consent of Seller, so long
as any portion of the Deferred Consideration remains unpaid, Purchaser shall not enter into any
amendment, waiver or modification of the Credit Facility that would (i) violate, or result in a
breach of any covenant contained in, this Agreement or the Registration Rights Agreement, or (ii)
otherwise impair the ability of Purchaser to perform its obligations under this Agreement and the
Registration Rights Agreement. Notwithstanding the foregoing, Purchaser shall provide Seller with
a copy of any amendment, waiver or modification of the Credit Facility, whether or not such
amendment, waiver or modification is subject to the prior written consent of Seller pursuant to the
immediately preceding sentence in this Section 5.19, promptly after the execution thereof.



ARTICLE VI




CONDITIONS TO CLOSING




     6.1 Conditions to the Obligations of Seller. The obligation of Seller to consummate
the transactions contemplated by this Agreement to be consummated at the Closing is conditioned
upon fulfillment or waiver, on or before the Closing, of each of the following conditions:



     (a) Representations and Warranties. The representations and warranties of Purchaser
contained in this Agreement, without regard to any materiality or material adverse effect



33









 




qualifier contained therein, shall be true and correct on and as of the Closing Date as if
made at and as of the Closing Date (except for any representations and warranties made as of a
specified date, which shall be true and correct as of the specified date), except where the failure
of such representations and warranties to be true and correct has not had and would not reasonably
be expected to have a Purchaser Material Adverse Effect.




     (b) Performance of Obligations of Purchaser. Purchaser shall have performed in all
material respects all obligations required to be performed by it under this Agreement at or prior
to the Closing Date.



     (c) Certificates.



     (i) Seller shall have received from Purchaser a certificate, dated the Closing Date, duly
executed by a duly authorized officer of Purchaser, satisfactory in form to Seller, to the effect
of Section 6.1(a) and (b) above.



     (ii) Seller shall have received from Purchaser a certified copy of the Closing Deferred
Consideration Schedule, duly executed by the chief financial officer of Purchaser, satisfactory in
form to Seller.



     (d) No Actions. No Governmental Entity of competent jurisdiction shall have enacted,
issued, promulgated, enforced or entered any injunction, order, judgment, ruling or decree, whether
temporary, preliminary or permanent, which is in effect and which prohibits consummation of the
Closing. No Law shall have been promulgated, enacted or entered and is in effect that prohibits or
otherwise makes illegal the performance of this Agreement or the transactions contemplated hereby.



     (e) Purchaser VWAP. The Purchaser VWAP shall be not less than $15 per share.



     (f) NASDAQ Listing. The Purchaser Common Stock to be issued at the Closing shall have
been authorized for listing on NASDAQ, subject only to official notice of issuance.



     (g) 8-K Filing and Press Release. The actions contemplated by Section 5.3
shall have occurred as and when required by such Section.



     (h) Purchaser MAE. Since the date of this Agreement, there shall not have occurred
any Purchaser Material Adverse Effect.



     (i) Registration Statement. Purchaser shall have delivered to Seller a draft of an
S-3 Shelf Registration Statement covering the Initial Stock Consideration in a form and substance
reasonably acceptable to Seller.



     (j) Registration Rights Agreement. Each of the Registration Rights Agreement,
substantially in the form attached hereto, and the related indemnity letter agreement by and
between Purchaser and Goldman, Sachs & Co. shall have been executed and delivered by Purchaser.



34









 





     6.2 Conditions to the Obligations of Purchaser. The obligation of Purchaser to
consummate the transactions contemplated by this Agreement to be consummated at the Closing is
conditioned upon fulfillment or waiver, on or before the Closing, of each of the following
conditions:



     (a) Representations and Warranties. The representations and warranties of Seller
contained in this Agreement, without regard to any materiality or material adverse effect qualifier
contained therein, shall be true and correct on and as of the Closing Date as if made at and as of
the Closing Date (except for any representations and warranties made as of a specified date, which
shall be true and correct as of the specified date), except where the failure of such
representations and warranties to be true and correct has not had and would not reasonably be
expected to have a Seller Material Adverse Effect.



     (b) Performance of Obligations of Seller. Seller shall have performed in all material
respects all obligations required to be performed by it under this Agreement at or prior to the
Closing Date.



     (c) Certificates.



     (i) Purchaser shall have received from Seller a certificate, dated the Closing Date, duly
executed by a duly authorized officer of Seller, satisfactory in form to Purchaser, to the effect
of Section 6.2(a) and (b) above.



     (ii) Purchaser shall have received from Seller a certificate of non-foreign status meeting the
requirements of Treasury Regulations Section 1.1445-2(b)(2).



     (d) No Actions. No Governmental Entity of competent jurisdiction shall have enacted,
issued, promulgated, enforced or entered any injunction, order, judgment, ruling or decree, whether
temporary, preliminary or permanent which is in effect and which prohibits consummation of the
Closing. No Law shall have been promulgated, enacted or entered and is in effect that prohibits or
otherwise makes illegal the performance of this Agreement or the transactions contemplated hereby.



     (e) Purchaser VWAP. The Purchaser VWAP shall be not less than $15 per share.



     (f) Closing Agreements. The Registration Rights Agreement and the Note Assignment
Agreement, in each case, substantially in the form attached hereto, shall have been executed and
delivered by Seller.



ARTICLE VII




TAX MATTERS




     7.1 Company Tax Returns. After the Closing, Purchaser shall cause the Company to
prepare all Tax Returns that relate to any Pre-Closing Tax Period, required by Law to be filed by
the Company in accordance with Section 7.02 of the LLC Agreement. Pursuant to Section 706 of the
Code, Profits, Losses and items thereof for any taxable period that includes (but does not



35









 




end on) the Closing Date shall be determined based on an interim closing of the books as of
5:00 p.m., New York time, on the Closing Date.




     7.2 Contest. After the Closing, Purchaser shall notify Seller of any Contest that
relates to any Pre-Closing Tax Period and shall provide Seller with the opportunity to participate
in all proceedings, in accordance with Section 7.02 of the LLC Agreement.



     7.3 Tax Cooperation. After the Closing, Purchaser shall furnish or cause to be
furnished to Seller and Seller shall furnish or cause to be furnished to Purchaser, upon request,
as promptly as practicable, such information (including access to books and records) and assistance
relating to the Company, as is reasonably requested for the filing of any Tax Returns that relate
to any Pre-Closing Tax Period (including, without limitation, information regarding the company’s
unrealized receivables and inventory items for purposes of §751 of the Code), for the preparation
of, and for the prosecution or defense of any Contest that relates to any Pre-Closing Tax Period,
including executing and delivering such powers of attorney and other documents as are necessary to
carry out the provisions of this Article VII.



     7.4 Transfer Taxes. All excise, sales, use, value added, transfer (including real
property transfer), withholding, capital gains transfer taxes, stamp, documentary, filing,
recordation, registration and other similar taxes, together with any interest, additions, fines,
costs or penalties thereon and any interest in respect of any additions, fines, costs or penalties,
imposed in connection with this Agreement and the transaction contemplated hereby (the
“Transfer Taxes”) shall be borne by Purchaser, whether levied on Purchaser or Seller.
Purchaser shall be responsible for preparing and timely filing any Tax Returns required with
respect to any such Transfer Taxes. Purchaser and Seller shall cooperate with each other in order
to minimize applicable Transfer Taxes in a manner that is mutually agreeable and in compliance with
applicable Law, and shall to that extent execute such documents, agreements, applications,
instruments, or other forms as reasonably required, and shall permit any such Transfer Taxes to be
assessed and paid in accordance with applicable Law.



     7.5 Purchase Price Allocation. For purposes of Sections 751 and 743(b) of the Code,
the Company, Purchaser and Seller shall allocate the portion of the Purchase Price which is treated
as the purchase price for U.S. tax purpose (as opposed to the portion, if any, treated as interest
or other income for such purposes), in accordance with Section 755 of the Code and cooperate fully
with each other in order to complete such allocation, together with any related Tax elections,
forms or schedules, within a reasonable period of time following the Closing Date. Purchaser and
Seller will use efforts that are reasonable and in good faith to agree on such allocation among the
assets within 90 days of the Closing Date and will also use efforts that are reasonable and in good
faith to produce a preliminary estimate of such allocation among the assets within 30 days of the
Closing Date. If the parties fail to reach such agreement, the parties may report such purchase
price allocation in their discretion, except as required by Law. Except as required pursuant to a
determination (as defined in Section 1313 of the Code), the parties hereto agree not to take any
position inconsistent with such characterization or allocation in any Tax Return, in any refund
claim or in any examination, litigation, investigation or otherwise.



36









 





ARTICLE VIII




TERMINATION




     8.1 Termination. This Agreement may be terminated at any time prior to the Closing
Date:



     (a) By the mutual consent of Purchaser, on the one hand, and Seller, on the other hand, in a
written instrument;



     (b) By Seller, if any of the conditions set forth in Section 6.1 becomes incapable of
satisfaction;



     (c) By Purchaser, if any of the conditions set forth in Section 6.2 becomes incapable
of satisfaction; or



     (d) By Purchaser or Seller, in the event that the Closing has not occurred on or before
February 26, 2009, unless the failure to so consummate by such time is due to (i) a material breach
of this Agreement by the party seeking to terminate, in which case such party shall have no right
to terminate this Agreement pursuant to this Section 8.01(d) or (ii) the failure to satisfy the
conditions set forth in Section 6.1(d) or Section 6.2(d) herein, in which case
neither party shall have the right to terminate this Agreement pursuant to this Section
8.1(d) until 5:00 p.m., New York City time, on March 9, 2009.



     8.2 Effect of Termination. If this Agreement is terminated pursuant to this Article
VIII, (a) this Agreement shall forthwith become wholly void and of no further force and effect and
all further obligations of the parties hereto or of their respective officers, directors or
employees with respect to any obligation under this Agreement shall terminate without further
liability except (a) for the obligations under Section 5.10 (Public Disclosure), this
Section and Article IX, each of which shall survive in its entirety any termination of this
Agreement and shall remain in full force and effect; and (b) such termination shall not relieve or
release any party for any liabilities or damages caused by reason of such party’s knowing or
willful breach of this Agreement. The parties further agree that if the Agreement is terminated
pursuant to Article VIII prior to the Closing Date, such termination shall be deemed to be
a failure to complete the transfer of the GAM Shares within the applicable period set forth in
Section 8.06(b) of the LLC Agreement and the provisions set forth in Section 8.06(c) of the LLC
Agreement shall apply; provided, however, that except for the waiver described in
the immediately preceding sentence, neither party shall be deemed to have waived any of its other
rights under the LLC Agreement.



ARTICLE IX

MISCELLANEOUS




     9.1 Binding Effect; Assignment. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors and permitted assigns. Nothing in this
Agreement shall create or be deemed to create any third party beneficiary rights in any Person or
entity not a party to this Agreement except as provided below. No assignment of this Agreement or
of any rights or obligations hereunder may be made by any party (by operation of law or otherwise)
without the prior written consent of the other parties hereto and any attempted



37









 




assignment without the required consents shall be void, provided that Seller shall be
permitted to assign its rights in whole or in part without Purchaser consent and Purchaser shall
execute and deliver to Seller or its assignee such instruments and documents and take such other
actions as Seller or such assignee may reasonably request or as may be otherwise reasonably
necessary to consummate more fully and effectively such assignment. Upon any such permitted
assignment, the references in this Agreement to Seller shall also apply to any such assignee unless
the context otherwise requires. No assignment of any obligations hereunder shall relieve the
parties hereto of any such obligations.




     9.2 Notices. All notices, requests, demands, consents and other communications given
or required to be given under this Agreement and under the related documents shall be in writing
and delivered to the applicable party at the address indicated below:



	 	 	 	 	 
	 

	 	If to Purchaser:
	 	Coinstar, Inc.
	 

	 	 	 	1800 114th Ave. SE
	 

	 	 	 	Bellevue, WA 98009-9258
	 

	 	 	 	Attention: Don Rench, General Counsel
	 

	 	 	 	Facsimile: (425) 943-8090
	 
	 	 	 	 
	 

	 	With a copy to:
	 	Perkins Coie LLP
	 

	 	 	 	1201 Third Avenue, Suite 4800
	 

	 	 	 	Seattle, WA 98101-3099
	 

	 	 	 	Attention: Andrew Bor, Esq.
	 

	 	 	 	Facsimile: (206) 359-8000
	 
	 

	 	If to Seller:	 	 GetAMovie, Inc.
	 

	 	 	 	2915 Jorie Boulevard. Dept. 060
	 

	 	 	 	Oak Brook, IL 60523
	 

	 	 	 	Attention: Cathy Griffin, Esq., Vice-President,

 General Counsel and Secretary
	 

	 	 	 	Facsimile: (630) 623-8154
	 
	 	 	 	 
	 

	 	With a copy to:
	 	Cleary Gottlieb Steen & Hamilton LLP
	 

	 	 	 	One Liberty Plaza
	 

	 	 	 	New York, New York 10006
	 

	 	 	 	Attention: Janet L. Fisher, Esq.
	 

	 	 	 	Facsimile: (212) 225-3999





or, as to each party at such other address as shall be designated by such party in a written notice
to the other parties complying as to delivery with the terms of this Section. All notices may be
sent by facsimile, or registered or certified mail, return receipt requested, postage prepaid.
Notice shall be effective upon actual receipt thereof.




     9.3 Incorporation. All exhibits attached hereto and to which reference is made herein
are incorporated by reference as if fully set forth herein.



38









 





     9.4 Governing Law. This Agreement shall be governed by and construed in accordance
with the Laws of the State of New York applicable to contracts made and to be performed in that
State.



     9.5 Consent to Jurisdiction. The parties hereto agree that any suit, action or
proceeding brought by Seller or Purchaser seeking to enforce any provision of, or based on any
matter arising out of or in connection with, this Agreement or the transactions contemplated hereby
shall be brought in any federal or state court located in New York County, New York. Each of the
parties hereto submits to the jurisdiction of any such court in any suit, action or proceeding
seeking to enforce any provision of, or based on any matter arising out of, or in connection with,
this Agreement or the transactions contemplated hereby and hereby irrevocably waives the benefit of
jurisdiction derived from present or future domicile or otherwise in such action or proceeding.
Each party hereto 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.



     9.6 Entire Agreement. This Agreement, including the exhibits and schedules hereto,
contains the entire understanding of and all agreements between the parties hereto with respect to
the subject matter hereof and supersedes any prior or contemporaneous agreements or understandings,
oral or written, pertaining to any such matters which agreements or understandings shall be of no
force or effect for any purpose.



     9.7 Counterparts. This Agreement 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.



     9.8 Waiver. Any term, condition or provision of this Agreement may be waived to the
extent permitted by Law in writing at any time by the party which is entitled to the benefits
thereof. The waiver of any breach of any provision under this Agreement by any party shall not be
deemed to be a waiver of any preceding or subsequent breach under this Agreement. No such waiver
shall be effective unless in writing.



     9.9 Expenses. Except as otherwise provided herein, each party shall bear and pay all
costs and expenses which it incurs, or which may be incurred on its behalf, in connection with this
Agreement and the transactions contemplated hereby.



     9.10 Severability. If any provision of this Agreement, as applied to any part or
circumstance, shall be adjudged by a court of competent jurisdiction to be void, invalid or
unenforceable, the same shall in no way affect any other provision of this Agreement, the
application of any such provision and any other circumstances or the validity or enforceability of
the other provisions of this Agreement.



     9.11 Specific Performance. The parties agree that if any of the provisions of this
Agreement were not performed by the parties hereto in accordance with their specific terms or were
otherwise breached thereby at or prior to the Closing, irreparable damage would occur, no adequate
remedy at Law would exist and damages would be difficult to determine, and that each



39









 




party hereto will be entitled to specific performance at or prior to the Closing to prevent
such breaches of the provisions of this Agreement and to enforce specifically the terms and
provisions hereof, in addition to any other remedy to which it may be entitled at Law or in equity.




     9.12 Fair Market Value. As provided in the recitals to this Agreement, this Agreement
sets forth the fair market value of the GAM Shares as agreed to by Seller and Purchaser under
Section 8.06(e) of the LLC Agreement.



[Signature Page Follows]




40









 






     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	COINSTAR, INC.

 	 
	 
	 	By  	/s/
DAVID W. COLE	 
	 	Name:  	David W. Cole	 
	 	Title:  	Chief Executive Officer	 
	 



	 	 	 	 	 
	 	GETAMOVIE, INC.

 	 
	 
	 	By  	/s/
MICHAEL D. RICHARD	 
	 	Name:  	Michael D. Richard	 
	 	Title:  	Vice President – Treasury	 
	 
















 



SCHEDULE II


Deferred Consideration Unit Price by Deferred Consideration Payment Date




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Initial	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Consideration	 	Feb-09	 	Mar-09	 	Apr-09	 	May-09	 	Jun-09	 	Jul-09	 	Aug-09	 	Sep-09	 	Oct-09
	32,500,000

	 	 	10,150,000	 	 	 	10,350,000	 	 	 	10,600,000	 	 	 	10,850,000	 	 	 	11,100,000	 	 	 11,400,000
	 	 	11,700,000	 	 	 12,000,000
	 	 	12,300,000	 
	34,000,000

	 	 	10,000,000	 	 	 	10,200,000	 	 	 	10,450,000	 	 	 	10,700,000	 	 	 	10,950,000	 	 	 11,250,000
	 	 	11,550,000	 	 	 11,850,000
	 	 	12,150,000	 
	35,500,000

	 	 	9,850,000	 	 	 	10,050,000	 	 	 	10,300,000	 	 	 	10,550,000	 	 	 	10,800,000	 	 	 11,100,000
	 	 	11,400,000	 	 	 11,700,000
	 	 	12,000,000	 
	37,000,000

	 	 	9,700,000	 	 	 	9,900,000	 	 	 	10,150,000	 	 	 	10,400,000	 	 	 	10,650,000	 	 	 10,950,000
	 	 	11,250,000	 	 	 11,550,000
	 	 	11,850,000	 
	38,500,000

	 	 	9,550,000	 	 	 	9,750,000	 	 	 	10,000,000	 	 	 	10,250,000	 	 	 	10,500,000	 	 	 10,800,000
	 	 	11,100,000	 	 	 11,400,000
	 	 	11,700,000	 
	40,000,000

	 	 	9,400,000	 	 	 	9,600,000	 	 	 	9,850,000	 	 	 	10,100,000	 	 	 	10,350,000	 	 	 10,650,000
	 	 	10,950,000	 	 	 11,250,000
	 	 	11,550,000	 
	41,500,000

	 	 	9,250,000	 	 	 	9,450,000	 	 	 	9,700,000	 	 	 	9,950,000	 	 	 	10,200,000	 	 	 10,500,000
	 	 	10,800,000	 	 	 11,100,000
	 	 	11,400,000	 
	43,000,000

	 	 	9,100,000	 	 	 	9,300,000	 	 	 	9,550,000	 	 	 	9,800,000	 	 	 	10,050,000	 	 	 10,350,000
	 	 	10,650,000	 	 	 10,950,000
	 	 	11,250,000	 
	44,500,000

	 	 	8,950,000	 	 	 	9,150,000	 	 	 	9,400,000	 	 	 	9,650,000	 	 	 	9,900,000	 	 	 10,200,000
	 	 	10,500,000	 	 	 10,800,000
	 	 	11,100,000	 
	46,000,000

	 	 	8,800,000	 	 	 	9,000,000	 	 	 	9,250,000	 	 	 	9,500,000	 	 	 	9,750,000	 	 	 10,050,000
	 	 	10,350,000	 	 	 10,650,000
	 	 	10,950,000	 
	47,500,000

	 	 	8,650,000	 	 	 	8,850,000	 	 	 	9,100,000	 	 	 	9,350,000	 	 	 	9,600,000	 	 	 9,900,000
	 	 	10,200,000	 	 	 10,500,000
	 	 	10,800,000	 
	49,000,000

	 	 	8,500,000	 	 	 	8,700,000	 	 	 	8,950,000	 	 	 	9,200,000	 	 	 	9,450,000	 	 	 9,750,000
	 	 	10,050,000	 	 	 10,350,000
	 	 	10,650,000	 
	50,500,000

	 	 	8,350,000	 	 	 	8,550,000	 	 	 	8,800,000	 	 	 	9,050,000	 	 	 	9,300,000	 	 	 9,600,000
	 	 	9,900,000	 	 	 10,200,000
	 	 	10,500,000	 
	52,000,000

	 	 	8,200,000	 	 	 	8,400,000	 	 	 	8,650,000	 	 	 	8,900,000	 	 	 	9,150,000	 	 	 9,450,000
	 	 	9,750,000	 	 	 10,050,000
	 	 	10,350,000	 
	53,500,000

	 	 	8,050,000	 	 	 	8,250,000	 	 	 	8,500,000	 	 	 	8,750,000	 	 	 	9,000,000	 	 	 9,300,000
	 	 	9,600,000	 	 	 9,900,000
	 	 	10,200,000	 
	55,000,000

	 	 	7,900,000	 	 	 	8,100,000	 	 	 	8,350,000	 	 	 	8,600,000	 	 	 	8,850,000	 	 	 9,150,000
	 	 	9,450,000	 	 	 9,750,000
	 	 	10,050,000	 





For illustration only: Assuming an
Initial Consideration payment of
$40,000,000, if 5 Deferred
Consideration Units are paid in the
month of July and the remaining 5
Deferred Consideration Units are paid
in the month of October the following
would be the total Deferred
Consideration paid by Purchaser:




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Number of	 	 	 	 	 	 	 
	 	 	Deferred	 	 	 	 	 	 	 
	 	 	Consideration	 	 	Deferred	 	 	 	 
	 	 	Units	 	 	Consideration	 	 	Total	 
	Month	 	Purchased	 	 	Unit Price	 	 	Cost	 
	 
	Feb-09
	 	 	 	 	 	 	9,400,000	 	 	 	—	 
	Mar-09
	 	 	 	 	 	 	9,600,000	 	 	 	—	 
	Apr-09
	 	 	 	 	 	 	9,850,000	 	 	 	—	 
	May-09
	 	 	 	 	 	 	10,100,000	 	 	 	—	 
	Jun-09
	 	 	 	 	 	 	10,350,000	 	 	 	—	 
	Jul-09
	 	 	5	 	 	 	10,650,000	 	 	 	53,250,000	 
	Aug-09
	 	 	 	 	 	 	10,950,000	 	 	 	—	 
	Sep-09
	 	 	 	 	 	 	11,250,000	 	 	 	—	 
	Oct-09
	 	 	5	 	 	 	11,550,000	 	 	 	57,750,000	 
	 
	 
	 	 	10	 	 	 	 	 	 	 	 	 
	 
	 
	 	Deferred Consideration	 	 	 	 	 	 	111,000,000	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Initial Consideration	 	 	 	 	 	 	40,000,000	 
	 
	 	Deferred Consideration	 	 	 	 	 	 	111,000,000	 
	 
	 
	 
	 	Purchase Price	 	 	 	 	 	 	151,000,000