-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, FcoFun2jbvx96eb6A3emgkgp+rwJcYzPf7wZvLjvuk+ZgmXTkdWgqXDvcJL2A6RW J6pjYTuz/beSWJbt0YEbPg== 0001144204-10-021125.txt : 20100419 0001144204-10-021125.hdr.sgml : 20100419 20100419172437 ACCESSION NUMBER: 0001144204-10-021125 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20100419 DATE AS OF CHANGE: 20100419 GROUP MEMBERS: DAVID LOCKWOOD GROUP MEMBERS: NATHANIEL MACLEITCH GROUP MEMBERS: VA SMALLCAP PARTNERS, LLC GROUP MEMBERS: VALUEACT SMALLCAP MANAGEMENT, L.P. GROUP MEMBERS: VALUEACT SMALLCAP MANAGEMENT, LLC GROUP MEMBERS: VALUEACT SMALLCAP MASTER FUND, L.P. FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Cresswell Jonathan William CENTRAL INDEX KEY: 0001488322 FILING VALUES: FORM TYPE: SC 13D/A MAIL ADDRESS: STREET 1: 86 OSBORNE ROAD STREET 2: WINDSOR CITY: BERKSHIRE STATE: X0 ZIP: SL4 3EN SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: Mandalay Media, Inc. CENTRAL INDEX KEY: 0000317788 STANDARD INDUSTRIAL CLASSIFICATION: PATENT OWNERS & LESSORS [6794] IRS NUMBER: 222267658 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-34362 FILM NUMBER: 10757828 BUSINESS ADDRESS: STREET 1: 2121 AVENUE OF THE STARS STREET 2: SUITE 2550 CITY: LOS ANGELES, STATE: CA ZIP: 90067 BUSINESS PHONE: (310) 601-2500 MAIL ADDRESS: STREET 1: 2121 AVENUE OF THE STARS STREET 2: SUITE 2550 CITY: LOS ANGELES, STATE: CA ZIP: 90067 FORMER COMPANY: FORMER CONFORMED NAME: Mediavest, Inc. DATE OF NAME CHANGE: 20050809 FORMER COMPANY: FORMER CONFORMED NAME: EB2B COMMERCE INC /NY/ DATE OF NAME CHANGE: 20010323 FORMER COMPANY: FORMER CONFORMED NAME: DYNAMICWEB ENTERPRISES INC DATE OF NAME CHANGE: 19960624 SC 13D/A 1 v181537_sc13da.htm
  
 
UNITED STATES
 
 
SECURITIES AND EXCHANGE
COMMISSION
 
 
Washington, D.C. 20549
 
 
Amendment No. 1
SCHEDULE 13D
 
 
Under the Securities Exchange Act of 1934
 
Mandalay Media, Inc.
(Name of Issuer)
 
Common Stock
(Title of Class of Securities)
 
562565101
 (CUSIP Number)
 
Barry I. Grossman, Esq.
Ellenoff Grossman & Schole, LLP
150 East 42nd Street, 11th Floor
New York, NY 10017
 
Allison Bennington, Esq.,
ValueAct Capital
435 Pacific Avenue, Fourth Floor
San Francisco, CA  94133
 
 (Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
 
April 16, 2010
(Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o
 
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.
 
* The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
 
The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). 
 

 
CUSIP No. 562565101

 
1.
Name of Reporting Person:
         
Jonathan Cresswell
     
     
 
2.
Check the Appropriate Box if a Member of a Group (See Instructions)
       
   
(a)
x
       
       
   
(b)
o
       
     
 
3.
SEC Use Only
     
     
 
4.
Source of Funds (See Instructions)
OO
     
     
 
5.
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o
     
     
 
6.
Citizenship or Place of Organization
British
     
 
   
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With
 
7.
    
Sole Voting Power
1,770,287
    
  
8.
   
Shared Voting Power
0
     
   
9.
   
Sole Dispositive Power
1,770,287
         
  
10.
  
Shared Dispositive Power
0
     

 
11.
Aggregate Amount Beneficially Owned by Each Reporting Person
1,770,287
     
     
 
12.
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)   o
     
     
 
13.
Percent of Class Represented by Amount in Row (11)
4.54%
     
     
 
14.
Type of Reporting Person (See Instructions)
IN
     
 


CUSIP No. 562565101

 
1.
Name of Reporting Person:
 
Nathaniel MacLeitch
     
     
 
2.
Check the Appropriate Box if a Member of a Group (See Instructions)
       
   
(a)
x
       
       
   
(b)
¨
       
     
 
3.
SEC Use Only
     
     
 
4.
Source of Funds (See Instructions)
OO
     
     
 
5.
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     ¨
     
     
 
6.
Citizenship or Place of Organization
United States
     
     
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With
7.
Sole Voting Power
1,770,287
   
   
8.
Shared Voting Power
0
   
   
9.
Sole Dispositive Power
1,770,287
   
   
10.
Shared Dispositive Power
0
     

 
11.
Aggregate Amount Beneficially Owned by Each Reporting Person
1,770,287
     
     
 
12.
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)   ¨
     
     
 
13.
Percent of Class Represented by Amount in Row (11)
4.54%
     
     
 
14.
Type of Reporting Person (See Instructions)
IN
     
 

 
CUSIP No. 562565101

 
1.
Name of Reporting Person:
 
ValueAct SmallCap Master Fund, L.P.
     
     
 
2.
Check the Appropriate Box if a Member of a Group (See Instructions)
       
   
(a)
x
       
       
   
(b)
¨
       
     
 
3.
SEC Use Only
     
     
 
4.
Source of Funds (See Instructions)
WC
     
     
 
5.
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     ¨
     
     
 
6.
Citizenship or Place of Organization
British Virgin Islands
     
     
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With
7.
Sole Voting Power
 0
   
   
8.
Shared Voting Power
561,798*
   
   
9.
Sole Dispositive Power
0
   
   
10.
Shared Dispositive Power
561,798*
     

 
11.
Aggregate Amount Beneficially Owned by Each Reporting Person
561,798 *
     
     
 
12.
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)   ¨
     
     
 
13.
Percent of Class Represented by Amount in Row (11)
1.4%
     
     
 
14.
Type of Reporting Person (See Instructions)
PN
     
 
* Excludes the Warrants described in Item 6 below.
 

 
CUSIP No. 562565101

 
1.
Name of Reporting Person:
          
VA SmallCap Partners, LLC
     
     
 
2.
Check the Appropriate Box if a Member of a Group (See Instructions)
     
   
(a)
x
       
       
   
(b)
¨
       
     
 
3.
SEC Use Only
     
     
 
4.
Source of Funds (See Instructions)
00
     
     
 
5.
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     ¨
     
     
 
6.
Citizenship or Place of Organization
Delaware
     
     
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With
7.
Sole Voting Power
0
   
   
8.
Shared Voting Power
561,798*
   
   
9.
Sole Dispositive Power
0
   
   
10.
Shared Dispositive Power
561,798*
     

 
11.
Aggregate Amount Beneficially Owned by Each Reporting Person
561,798*
     
     
 
12.
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)   ¨
     
     
 
13.
Percent of Class Represented by Amount in Row (11)
1.4%
     
     
 
14.
Type of Reporting Person (See Instructions)
00 (LLC)
     
 
* Excludes the Warrants described in Item 6 below.
 

 
CUSIP No. 562565101

 
1.
Name of Reporting Person:
          
ValueAct SmallCap Management, L.P.
     
     
 
2.
Check the Appropriate Box if a Member of a Group (See Instructions)
       
   
(a)
x
       
       
   
(b)
¨
       
     
 
3.
SEC Use Only
     
     
 
4.
Source of Funds (See Instructions)
00
     
     
 
5.
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     ¨
     
     
 
6.
Citizenship or Place of Organization
Delaware
     
     
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With
7.
Sole Voting Power
0
   
   
8.
Shared Voting Power
561,798*
   
   
9.
Sole Dispositive Power
0
   
   
10.
Shared Dispositive Power
561,798*
     

 
11.
Aggregate Amount Beneficially Owned by Each Reporting Person
561,798*
     
     
 
12.
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)   ¨
     
     
 
13.
Percent of Class Represented by Amount in Row (11)
1.4%
     
     
 
14.
Type of Reporting Person (See Instructions)
PN
     
 
* Excludes the Warrants described in Item 6 below.
 

 
CUSIP No. 562565101

 
1.
Name of Reporting Person:
    
ValueAct SmallCap Management, LLC
     
     
 
2.
Check the Appropriate Box if a Member of a Group (See Instructions)
       
   
(a)
x
       
       
   
(b)
o
       
     
 
3.
SEC Use Only
     
     
 
4.
Source of Funds (See Instructions)
00
     
     
 
5.
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o
     
     
 
6.
Citizenship or Place of Organization
Delaware
     
     
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With
7.
Sole Voting Power
0
   
   
8.
Shared Voting Power
561,798*
   
   
9.
Sole Dispositive Power
0
   
   
10.
Shared Dispositive Power
561,798*
     

 
11.
Aggregate Amount Beneficially Owned by Each Reporting Person
561,798*
     
     
 
12.
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)   o
     
     
 
13.
Percent of Class Represented by Amount in Row (11)
1.4%
     
     
 
14.
Type of Reporting Person (See Instructions)
00 (LLC)
     
 
* Excludes the Warrants described in Item 6 below.
 


CUSIP No. 562565101

 
1.
Name of Reporting Person:
            
David Lockwood
     
     
 
2.
Check the Appropriate Box if a Member of a Group (See Instructions)
       
   
(a)
x
       
       
   
(b)
¨
       
     
 
3.
SEC Use Only
     
     
 
4.
Source of Funds (See Instructions)
00
     
     
 
5.
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     ¨
     
     
 
6.
Citizenship or Place of Organization
Delaware
     
     
Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With
7.
Sole Voting Power
0
   
   
8.
Shared Voting Power
561,798*
   
   
9.
Sole Dispositive Power
0
   
   
10.
Shared Dispositive Power
561,798*
     

 
11.
Aggregate Amount Beneficially Owned by Each Reporting Person
561,798*
     
     
 
12.
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)   ¨
     
     
 
13.
Percent of Class Represented by Amount in Row (11)
1.4%
     
     
 
14.
Type of Reporting Person (See Instructions)
IN
     
 
* Excludes the Warrants described in Item 6 below.
 

 
Item 1. 
Security and Issuer
 
This Amendment No. 1 to Schedule 13D (this “Amendment No. 1”) relates to shares of common stock, $.0001 par value (the “Common Stock”), of Mandalay Media, Inc., a Delaware corporation (the “Issuer” or the “Company”), whose principal executive offices are located at 2121 Avenue of the Stars, Suite 2550, Los Angeles, CA, 90067.  This Amendment No. 1 amends and supplements, as set forth below, the information contained in Items 1 through 7 and the Exhibits of the Schedule 13D filed by Jonathan Cresswell and Nathaniel MacLeitch on April 1, 2010 (the “Schedule 13D”).  All capitalized terms used herein but not defined herein have the meanings set forth in the Schedule 13D.   Except as amended by this Amendment No. 1, all information contained in the Schedule 13D is, after reasonable inquiry and to the best of the Reporting Persons’ knowledge and belief, true, complete and correct as of the date of this Amendment No. 1.

Item 2. 
Identity and Background

Item 2 of the Schedule 13D is amended to read in its entirety as follows.

The names of the persons filing this statement (the “Reporting Persons”) are Jonathan Cresswell, a citizen of the United Kingdom, Nathaniel MacLeitch, a citizen of the United States, ValueAct SmallCap Master Fund, L.P. (“VAC”), a limited partnership organized under the laws of the British Virgin Islands, VA SmallCap Partners, LLC, a Delaware limited liability company, ValueAct SmallCap Management, L.P., a Delaware limited partnership, ValueAct SmallCap Management, LLC, a Delaware limited liability company, and David Lockwood, a citizen of the United States .
 
Jonathan Cresswell is joint managing director of AMV Holding Limited (“AMV”), a mobile media and marketing company and a subsidiary of the Issuer. The address of AMV is 65 High Street, Marlow, Buckinghamshire, United Kingdom.

Nathaniel MacLeitch is joint managing director of AMV. The address of AMV is 65 High Street, Marlow, Buckinghamshire, United Kingdom.

The principal business of VAC is to purchase, sell, trade and invest in securities. .

The principal business of VA SmallCap Partners, LLC is to serve as the General Partner to ValueAct SmallCap Master Fund, L.P.

The principal business of ValueAct SmallCap Management, L.P. is to render management services to ValueAct SmallCap Master Fund, L.P.

The principal business of ValueAct SmallCap Management, LLC is to serve as the General Partner to ValueAct SmallCap Management, L.P.  

David Lockwood is the managing member, principal owner and controlling person of VA SmallCap Partners and ValueAct SmallCap Management LLC, and such activities constitute his principal occupation.  

The address of the principal business and principal office of each of the Reporting Persons is set forth on Exhibit “A” hereto.
 
During the last five years, none of the Reporting Persons nor the other entities mentioned in this Item 2 have been (a) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (b) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

Item 3. 
Source and Amount of Funds or Other Consideration

Item 3 of the Schedule 13D is amended to read in its entirety as follows.

The Reporting Persons acquired the shares of Common Stock to which this Statement relates as follows:

 

 

(a) 
Pursuant to a Stock Purchase Agreement with the Issuer dated October 8, 2008 (the “Stock Purchase Agreement”), Mr. Cresswell received 1,770,287 shares of Common.

(b) 
Pursuant to the Stock Purchase Agreement, Mr. MacLeitch received 1,770,287 shares of Common Stock.
(c) 
The Common Stock beneficially owned by VAC, VA SmallCap Partners, LLC, ValueAct SmallCap Management, L.P., ValueAct SmallCap Management, LLC, and David Lockwood was acquired with working capital of such Reporting Persons pursuant to a private placement.

Item 4. 
Purpose of Transaction
 
Item 4 of the Schedule 13D is amended to read in its entirety as follows.
 
On July 30, 2007, VAC purchased a senior secured note from a subsidiary of the Issuer, Twistbox Entertainment, Inc. (“Twistbox”), in the initial principal amount of $16,500,000 (as amended, the “VAC Note”).  Multiple events of default currently exist under the VAC Note.
 
On October 23, 2008, the Issuer consummated the acquisition of 100% of the issued and outstanding share capital of AMV.  A portion of the purchase price was comprised of a secured promissory note issued by the Company in the initial  principal amount of $5,375,000, payable to Mr. MacLeitch (as trustee for certain former shareholders of AMV) (the “AMV Note”).
 
On April 16, 2010, the Reporting Persons entered into a letter of intent (the “Letter of Intent”) with the Issuer relating to a restructuring of the VAC Note and the AMV Note.
 
Pursuant to the Letter of Intent, the Reporting Persons and the Issuer agreed in principal and on a non-binding basis that the Issuer will sell 100% of the currently outstanding equity of AMV and assign certain contracts (collectively, the “Sale”) to a newly formed entity controlled by the Reporting Persons in exchange for (a) the cancellation of approximately $14.0 million of the aggregate amount of unpaid principal and accrued and unpaid interest of the VAC Note (resulting in a remaining outstanding balance of $6 million); (b) the cancellation of the AMV Note (the aggregate amount of unpaid principal and accrued and unpaid interest of which is presently approximately £6.3 million); (c) the cancellation of all warrants and Common Stock held by the Reporting Persons and (d) the termination of the Issuer’s obligations to pay certain earn-out payments under the Stock Purchase Agreement.
 
Additionally, pursuant to the Letter of Intent, the Reporting Persons and the Issuer agreed in principal and on a non-binding basis that, immediately following the consummation of the Sale, AMV and Twistbox will each contribute certain intellectual property, contracts and capital to a new advertising joint venture which will be owned 50% by AMV and 50% by Twistbox (the “Joint Venture”).
 
The Reporting Persons and the Issuer may continue to explore alternative structures to effect the substance of the transactions contemplated by the Letter of Intent.
 
Neither the Issuer nor the Reporting Persons are obligated to effect the foregoing and any such obligation is subject to, among other things, the execution by the Issuer and the Reporting Persons of definitive and binding agreements.  The consummation of the Sale would be conditioned upon the Issuer obtaining all stockholder approvals if and to the extent required under applicable law.   If the parties are unable to reach a definitive agreement or consummate the Sale or Joint Venture, VAC may exercise any remedies that it has under the VAC Note and Messrs. Cresswell and MacLeitch may exercise any remedies they have under the AMV Note.

 

 
 
The foregoing description of the Letter of Intent does not purport to set forth all material terms of the Letter of Intent.
 
The Reporting Persons reserve the right to revise their plans or intentions at any time and to take any and all actions that they may deem appropriate to maximize the value of their investment in the Company in light of their general investment policies, market conditions, subsequent developments affecting the Company and the general business and future prospects of the Company.
 
Item 5. 
Interest in Securities of the Issuer
 
Item 5 of the Schedule 13D is amended to read in its entirety as follows
 
(a)-(b)    The responses to Items 7 - 13 of the cover pages of this Schedule 13D are incorporated herein by reference.
 
(c)      There have been no transactions in the Common Stock effected by the Reporting Persons effected in the last 60 days.
 
(d)      The Reporting Persons have the sole right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the Common Stock owned by them.
 
Item 6.            Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer
 
VAC holds three warrants to purchase shares of Common Stock (the “Warrants”).   The Warrants entitle VAC to purchase up to a total of 1,092,622, 1,092,621 and 280,899 shares of Common Stock, respectively.  All of the Warrants are out-of-the money.

Item 7.            Material to Be Filed as Exhibits
 
Item 7 of the Schedule 13D is hereby amended and supplemented by adding the following item at the end of Item 7
 
Exhibit 99.2             Joint Filing Agreement

 

 

SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

DATE:         April 19, 2010
     
       
 
 /s/ Jonathan Creswell
 
Jonathan Creswell
       
 
/s/ Nathaniel MacLeitch
 
Nathaniel MacLeitch
       
 
ValueAct SmallCap Master Fund, L.P.,
 
By:
VA SmallCap Partners, LLC, Its General
   
Partner
       
 
By:
/s/ David Lockwood
   
Name:
David  Lockwood
   
Title:
Managing Member
       
 
VA SMALLCAP PARTNERS, LLC
       
 
By:
/s/ David Lockwood
   
Name:
David  Lockwood
   
Title:
Managing Member
       
 
ValueAct SmallCap Management, L.P.
 
By:
ValueAct SmallCap Management, LLC,
   
Its General Partner
       
 
By:
/s/ David Lockwood
   
Name:
David  Lockwood
   
Title:
Managing Member
       
 
ValueAct SmallCap Management, LLC
       
 
By:
/s/ David Lockwood
   
Name:
David  Lockwood
   
Title:
Managing Member
       
 
/s/ David Lockwood
 
David Lockwood
Attention:  Intentional misstatements or omissions of fact constitute Federal criminal violations
(See 18 U.S.C. 1001) 

 

 

Exhibit “A”

Exhibit “A” of the Schedule 13D is amended to read in its entirety as follows:

Stockholder
 
Address
     
Jonathan Cresswell
 
86 Osborne Road, Windsor, Berkshire,
 
 
SL4 3EN, United Kingdom
     
Nathaniel MacLeitch
 
101 Dudley Gardens, London W13 9LU
     
ValueAct SmallCap Master Fund, L.P.
 
435 Pacific Avenue, Fourth Floor
   
San Francisco, CA 94133
     
VA SmallCap Partners, LLC
 
435 Pacific Avenue, Fourth Floor
   
San Francisco, CA 94133
     
ValueAct SmallCap Management, L.P.
 
435 Pacific Avenue, Fourth Floor
   
San Francisco, CA 94133
     
ValueAct SmallCap Management, LLC
 
435 Pacific Avenue, Fourth Floor
   
San Francisco, CA 94133
     
David Lockwood
 
435 Pacific Avenue, Fourth Floor
   
San Francisco, CA 94133

 

 
EX-99.2 2 v181537_ex99-2.htm
Exhibit 99.2

JOINT FILING AGREEMENT

JOINT FILING AGREEMENT (this “Agreement”), dated as of April 16, 2008, by and among the parties identified in the signature pages hereof (such parties collectively, the “Reporting Persons”).

WHEREAS, each Reporting Person beneficially owns shares of Common Stock, par value $0.0001 per share (the “Common Stock”), of Mandalay Media, Inc. (the “Company”);

WHEREAS, on April 16, 2010, the Reporting Persons entered into a letter of intent (the “Letter of Intent”) with the Issuer relating to a restructuring of certain indebtedness owed by the Issuer to the Reporting Persons;

WHEREAS, by entering into the Letter of Intent, the Reporting Persons may be deemed to have formed a “group” (the “Reporting Group”) for purposes of Section 13(d) of the Exchange Act of 1934, as amended (the “Exchange Act”) and the rules and regulations promulgated thereunder, and as a result, the Reporting Group may be deemed to have acquired beneficial ownership of all shares of Common Stock beneficially owned by the Reporting Persons; and
 
WHEREAS, each of the Reporting Persons desires by this Agreement to provide for the joint filing of an amendment (the “Joint Schedule 13D/A”) to the Statement on Schedule 13D filed by Jonathan Cresswell and Nathaniel McLeitch on April 1, 2010 (as amended from time to time, including pursuant to the Joint Schedule 13D/A, the “Joint Schedule 13D”) with respect to the Reporting Persons’ respective beneficial ownership of shares of Common Stock.

NOW, THEREFORE, the Reporting Persons hereby agree as follows:

1.           Joint Filing.  Pursuant to Rule 13d-1(k) of the Exchange Act, each of the Reporting Persons shall cooperate to jointly prepare and file the Joint Schedule 13D/A with respect to their respective beneficial ownership of shares of Common Stock on behalf of the Reporting Group and all necessary or appropriate amendments to the Joint Schedule 13D. The Reporting Persons agree that this Agreement may be included as an exhibit to the Joint Schedule 13D/A and any amendments thereto, and any amendments to the Joint Schedule 13D may be filed without the necessity of filing additional joint filing agreements. For purposes of this Agreement, the terms “beneficial ownership” and “beneficial owner” shall have the meanings given to them pursuant to Rule 13d-3 of the Exchange Act.
 
2.           Amendments. Each Reporting Person agrees that if (a) it or any of its Affiliates takes any action that would require the Reporting Group to amend the Joint Schedule 13D or (b) any information concerning such Reporting Person or any of its Affiliates set forth in the Joint Schedule 13D is or becomes inaccurate in any material respect, such Reporting Person shall notify the other Reporting Persons no later than one business day thereafter, and shall cause an appropriate amendment to the Joint Schedule 13D to be promptly prepared and distributed to the other Reporting Persons for review.  For purposes of this Agreement, the terms “Affiliate” and “Affiliates” shall have the meanings given to them pursuant to Rule 12b-2 of the Exchange Act.

 
 

 
 
3.           Reasonable Opportunity to Review. Each Reporting Person agrees to provide the other Reporting Persons a reasonable opportunity to review and comment on each proposed amendment to the Joint Schedule 13D.
 
4.           Information; Responsibility.
 
 Each Reporting Person represents and warrants to the other Reporting Persons that the information concerning such Reporting Person and any of its Affiliates contained in the Joint Schedule 13D (including the Joint Schedule 13D/A) or any amendment thereto will be, true, correct and complete in all material respects and in accordance with all applicable laws.
 
In accordance with Rule 13d-1(k) of the Exchange Act, each Reporting Person shall be responsible for the completeness and accuracy of the information concerning such Reporting Person contained in the Joint Schedule 13D, but shall not be responsible for the completeness and accuracy of the information concerning any other Reporting Person contained therein, unless such Reporting Person knows or has reason to believe that such information is inaccurate.
 
5.             Indemnification. Each Reporting Person agrees to indemnify each other Reporting Person for any losses, claims, liabilities or expenses (including reasonable legal fees and expenses) resulting from, or arising in connection with, the breach by such Reporting Person of any representations, warranties or agreements in this Agreement.
 
6.            Termination; Survival. Any Reporting Person may terminate its obligation to continue to jointly file future amendments to the Joint Schedule 13D by delivering written notice to each other Reporting Person at least two business days prior to the effective date of such termination in which case the provisions of this Agreement solely with respect to such Reporting Person shall terminate; provided that (x) paragraphs 5, 6, 7, 8 and 9 hereof shall survive such termination and (y) such Reporting Person shall continue to be subject to its indemnification obligations under this Agreement for any breach by such Reporting Person hereunder existing at the time of such termination. In addition, following the termination by any Reporting Person pursuant to this Section 6, such Reporting Person shall promptly (and in any event within one business day after the filing) notify each other Reporting Person in writing of the filing of any Schedule 13D or amendment thereof with respect to its or any of its Affiliates’ beneficial ownership of shares of Common Stock.  
 
7.             Governing Law; Jurisdiction; Waiver of Jury Trial. This Agreement will be governed in all respects by the laws of the State of New York. No suit, action or proceeding with respect to this Agreement may be brought in any court or before any similar authority other than in a court of competent jurisdiction in the State of New York, and the parties to this Agreement submit to the exclusive jurisdiction of those courts for the purpose of a suit, proceeding or judgment. Each party to this Agreement irrevocably waives any right it may have had to bring an action in any other court, domestic or foreign, or before any similar domestic or foreign authority. Each of the parties to this Agreement irrevocably and unconditionally waives trial by jury in any legal action or proceeding (including any counterclaim) in relation to this Agreement.
 
8.           Counterparts; Facsimile Signatures. This Agreement may be executed in any number of counterparts, each of which will be an original, but all of which together will constitute one instrument. This Agreement may be executed by facsimile or electronically-sent signature(s).
 
 
 

 

9.           Notices. All notices, requests and other communications hereunder must be in writing and shall be deemed to have been duly given only if delivered personally against written receipt or by facsimile transmission or mailed by prepaid first class mail, return receipt requested, or mailed by overnight courier prepaid to the parties hereto at the following addresses or facsimile numbers:
 
If to Jonathan Cresswell, to:
 
86 Osborne Road
Windsor, Berkshire
SL4 3EN, United Kingdom
Facsimile:
 
If to Nathaniel McLeitch, to:
 
Nathaniel McLeitch
101 Dudley Gardens
London W13 9LU
Facsimile:

If to ValueAct SmallCap Master Fund, L.P., VA SmallCap Partners, LLC, ValueAct SmallCap Management, L.P., ValueAct SmallCap Management, LLC or David Lockwood, to:

c/o ValueAct SmallCap Master Fund, L.P.
435 Pacific Avenue, Fourth Floor
San Francisco, CA 94133
Attention:  General Counsel
Facsimile: 415-362-5727
 
All such notices, requests and other communications shall (a) if delivered personally to the address as provided in this Section 9, be deemed given upon delivery, (b) if delivered by facsimile transmission to the facsimile number as provided in this Section 9, be deemed given upon facsimile confirmation, (c) if delivered by mail in the manner described above to the address as provided in this Section 9, upon the earlier of the third business day following mailing or upon receipt and (d) if delivered by overnight courier to the address as provided in this Section 9, be deemed given on the earlier of the first business day following the date sent by such overnight courier or upon receipt (in each case regardless of whether such notice, request or other communication is received by any other person to whom a copy of such notice is to be delivered pursuant to this Section 9).  Any party from time to time may change its address, facsimile number or other information for the purpose of notices to that party by giving written notice in the manner provided in this Section 9 specifying such change to the other Reporting Persons.
 
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first above written.

 
  /s/ Jonathan Creswell
 
Jonathan Creswell
       
 
/s/ Nathaniel MacLeitch
 
Nathaniel MacLeitch
       
 
ValueAct SmallCap Master Fund, L.P.,
 
By:
VA SmallCap Partners, LLC, Its General
   
Partner
       
 
By:
/s/ David Lockwood
   
Name:
David  Lockwood
   
Title:
Managing Member
       
 
VA SMALLCAP PARTNERS, LLC
       
 
By:
/s/ David Lockwood
   
Name:
David  Lockwood
   
Title:
Managing Member
       
 
ValueAct SmallCap Management, L.P.
 
By:
ValueAct SmallCap Management, LLC,
   
Its General Partner
       
 
By:
/s/ David Lockwood
   
Name:
David  Lockwood
   
Title:
Managing Member
       
 
ValueAct SmallCap Management, LLC
       
 
By:
/s/ David Lockwood
   
Name:
David  Lockwood
   
Title:
Managing Member
       
 
/s/ David Lockwood
 
David Lockwood

 
 

 
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