ex102to8k06113_02132009.htm


    Exhibit
10.2

     

    New
Century Equity Holdings Corp.

    200
Crescent Court, Suite 1400

    Dallas,
Texas 75201

     

    


     

    February
13, 2009

     

    


    Horst
Dieter Esch

    1090
Primrose Place

    Park
City, UT 84098

    


    Dear
Dieter:

     

    Reference
is hereby made to:

     

    (a) that
certain Loan Agreement, dated as of December 21, 2005, as amended, modified or
supplemented, from time to time (the “Loan Agreement”, and together with all
documents ancillary to the Loan Agreement, the “Loan Documents”), between
Wilhelmina International Ltd., a New York corporation (the “Company”), and
Signature Bank (“Signature Bank”);

     

    (b) that
certain agreement, dated as of August 25, 2008 (the “Acquisition Agreement”), by
and among New Century Equity Holdings Corp., a Delaware corporation (“NCEH” or
“we”), Wilhelmina Acquisition Corp., a New York corporation (“Wilhelmina
Acquisition”), Dieter Esch (“Esch” or “you”), Lorex Investments AG, a Swiss
corporation, Brad Krassner (“Krassner”), Krassner Family Investments Limited
Partnership, a Nevada limited partnership, the Company, Wilhelmina – Miami,
Inc., a Florida corporation (“Wilhelmina Miami”), Wilhelmina Artist Management
LLC, a New York limited liability company (“WAM”), Wilhelmina Licensing LLC, a
Delaware limited liability company (“Wilhelmina Licensing”), Wilhelmina Film
& TV Productions LLC, a New York limited liability company (“Wilhelmina TV”,
and together with the Company, Wilhelmina Miami, WAM and Wilhelmina Licensing,
the “Wilhelmina Companies”), Sean Patterson, and the shareholders of Wilhelmina
Miami; and

     

    (c) that
certain allocation letter dated August 25, 2008 (the “Allocation Letter”)
between Esch and Krassner directing NCEH with respect to the payment of proceeds
under Section 2.3(d) of the Acquisition Agreement.

     

    Capitalized
terms used but not defined herein shall have the respective meanings given to
such terms in the Acquisition Agreement unless the context otherwise
requires.

     

    For good
and valuable consideration (including in order to facilitate a mutually
beneficial closing under the Acquisition Agreement), the receipt and sufficiency
of which is hereby acknowledged, you and we hereby agree as
follows:

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      
        	 	
                A.

              	
                Escrow

              


      

    

     

    Notwithstanding the provisions of
Section 2.3 of the Acquisition Agreement and the directions set forth in the
Allocation Letter, one million seven hundred and fifty thousand dollars ($1.75
million) of the cash proceeds to be paid to Esch at Closing (taking into account
the terms of the Allocation Letter) (such amount, “Bank Holdback Amount”) shall
instead be paid to and  held in escrow by the Escrow Agent until the
occurrence of either (a) a Holdback Release Event (as defined below) or (b) Bank
Payoff Event (as defined below).  Funds held in escrow pursuant to the
foregoing shall remain strictly in the custody and control of the Escrow Agent
until any release pursuant to Section B below and shall be invested in a money
market fund invested principally in US Treasuries.  The “Escrow Agent”
shall initially be Olshan Grundman Frome Rosenzweig & Wolosky LLP (“Olshan”)
(to whom the Bank Holdback Amount proceeds shall be remitted promptly following
Closing, and no later then three (3) Business Days thereafter to enable
preparation of an appropriate account); provided that, within fifteen (15) days
following the Closing, Esch and NCEH shall use their reasonable best efforts to
select a mutually acceptable third party escrow agent, which third party shall
become the “Escrow Agent” hereunder upon execution of an applicable assignment
from Olshan or a similar document which includes the precise obligations
hereunder (which other escrow document may include such other customary terms
applicable to escrow agents as are mutually acceptable to the
parties).

    
       

      
        
          	 	
                  B.

                	
                        
                    Release

                  

                


        

      

    

     

    Upon the occurrence of a Holdback
Release Event, the Escrow Agent shall pay directly to you by check or wire (at
your election) from escrow all or any remaining portion (as applicable) of the
Bank Holdback Amount then held in escrow by the Escrow Agent.  For the
avoidance of doubt, in the event that a Bank Payoff Event occurred and all or a
portion of the Bank Holdback Amount was paid by the Escrow Agent to Signature
Bank, NCEH shall have no liability to Esch for proceeds payable under the
Acquisition Agreement (which proceeds were escrowed hereunder and paid to
Signature Bank) other than in respect of amounts set forth in any issued Notes
(as defined below) in accordance with the terms thereof.

     

    A
“Holdback Release Event” shall mean (1) the closing of (and initial funding to
NCEH under) a new revolving bank facility (other than under the Loan Documents)
for NCEH or the Company which provides committed working capital financing to
NCEH or the Company on terms acceptable to NCEH in its absolute discretion and
of a size materially comparable to the bank facility (including the term loan)
under the Loan Documents or (2) the extension by Signature Bank of the Loan
Documents (including the maturity of the revolving credit note) for a term
extending to December 31, 2009 or later without (a) any adverse change in the
terms of the Loan Documents (as of the date hereof) that is not immaterial (it
being understood and agreed that an increase in the rate of interest by 1% or
less shall be deemed immaterial) and (b) any requirement that additional equity
capital in NCEH or the Company (or any of its subsidiaries) be contributed or
raised.

     

     Upon the occurrence of a Bank
Payoff Event (which may occur one or more times), the Escrow Agent shall release
and pay from escrow all or such portion (as determined by NCEH upon written
notice to the Escrow Agent) of the Bank Holdback Amount in cash to Signature
Bank in satisfaction of all or a portion of amounts (principal and/or interest)
outstanding due to Signature Bank under the Loan Documents; provided that, if
Esch and NCEH deliver a Mutual Deferral Notice, then the Escrow Agent shall
release such funds only upon subsequent direction by NCEH (provided that a Bank
Payoff Event continues to apply).  A “Mutual Deferral Notice” shall
mean a notice signed by both Esch and NCEH directing the Escrow Agent to not
release all or any portion of the Bank Holdback Notice until further notice by
NCEH.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    A “Bank
Payoff Event” shall mean:

     

    (1)
written notification by Signature Bank to the Company of the occurrence of any
Event of Default (as defined in the Loan Documents) under the Loan
Documents;

     

    (2)
written notification to the Company by Signature Bank of the termination of the
Loan Agreement (or any termination or reduction in the committed financing
thereunder) and/or notification of any mandatory repayment of principal by the
Company under any of the Loan Documents (including the revolving credit note) or
acceleration thereof;

     

    (3)
Signature Bank’s failure to acknowledge in a writing reasonably satisfactory to
NCEH that Signature Bank does not possess liens on, or security interests in,
any shares of stock in the Company or Wilhelmina Miami or any membership or
other equity interests in the other Wilhelmina Transferred Companies, or
Signature Bank’s failure or refusal to release any such liens held by Signature
Bank on such shares of stock or on any membership or other equity interests
(through the return of share certificates to the Company or other appropriate
action as reasonably requested by Purchaser’s counsel) and, in either case, such
failure (or refusal to release) continues for a period of thirty calendar days
following the Closing Date; or

     

    (4)
written notification to NCEH or the Company by Signature Bank of
any  requirement by Signature Bank that, in order to extend the term
of the Loan Agreement, additional equity capital in NCEH or the Company (or any
of its subsidiaries) is required to be contributed or raised.

     

    An email
communication shall be deemed written notification described in the foregoing
clauses (1)-(4).

    
      
         

        
          
            	 	
                    C.

                  	
                          
                            
                        Issuance
      of
Notes

                      

                    

                  


          

        

      

    

     

               In
the event that the Escrow Agent pays Signature Bank any portion of the Bank
Holdback Amount from escrow (any such payment, a “Payback Amount”) upon a Bank
Payoff Event, NCEH shall promptly issue to Esch, in replacement thereof, a
promissory note (a “Note”) in the form set forth as Exhibit A hereto in the
principal amount of such Payback Amount.  NCEH may issue one or more
such Notes to Esch, not to exceed an aggregate principal amount (between all
such Notes) equal to the Bank Holdback Amount.  Notes shall be issued
directly to Esch and shall not be held in escrow.

    
      
         

        
          
            	 	
                    D.

                  	
                          
                            
                        Termination

                      

                    

                  


          

        

      

       

    

    This letter agreement shall terminate
upon the release and payment by the Escrow Agent to Esch and/or to Signature
Bank of all remaining amounts held in escrow pursuant to Section
A.  The termination of this letter agreement shall have no effect on
any Notes issued by NCEH pursuant to paragraph C above, which Notes shall remain
in full force and effect.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
      
         

        
          
            	 	
                    E.

                  	
                          
                            
                        Other

                      

                    

                  


          

        

      

    

     

    THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW
PROVISION OR RULE (WHETHER OF THE STATE OF NEW YORK OR ANY OTHER JURISDICTION)
THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION OTHER
THAN THE STATE OF NEW YORK.  EACH OF ESCH AND NCEH HEREBY IRREVOCABLY
SUBMITS TO THE EXCLUSIVE PERSONAL AND SUBJECT MATTER JURISDICTION OF THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND THE SUPREME
COURT OF THE STATE OF NEW YORK LOCATED IN THE BOROUGH OF MANHATTAN OVER ANY
SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT.  EACH OF ESCH AND NCEH HEREBY IRREVOCABLY WAIVES TO THE
FULLEST EXTENT PERMITTED BY LAW (A) ANY OBJECTION THAT THEY MAY NOW OR HEREAFTER
HAVE TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH
COURT; AND (B) ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.

     

    EACH OF
ESCH AND NCEH HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW,
ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER
BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.

     

      This
letter agreement and any Note issued pursuant to the terms hereof shall
constitute the entire understanding between NCEH and Esch with respect to the
subject matter hereof and supersedes all other agreements and understandings
among NCEH and Esch with respect hereto. NCEH and Esch acknowledge and agree
that the agreement set forth herein does not require any amendment to the
Acquisition Agreement and shall operate as a standalone side agreement between
NCEH and Esch.  Each of NCEH and Esch is represented by counsel in
connection with the negotiation and execution hereof.

    


    Please
execute below to indicate your agreement to the terms hereof.

    


    [Signature Page
Follows]

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    [Signature
Page to Esch Letter re Bank Holdback Amount]

    


    Regards,

    


    
      
        
          	
                  New
      Century Equity Holdings Corp.

                
	 
      
	 
      
	
                  
                    /s/
      John Murray

                  

                
	
                  Name:
      John Murray

                
	
                  Title:
      Chief Financial Officer

                
	 
      


        

      

    

    


    
      
        	
                Acknowledged
      and Agreed:

              
	 
      
	 
      
	
                
                  /s/
      Horst Dieter Esch

                

              
	
                Horst
      Dieter Esch