0000921895-15-000588.txt : 20150310 0000921895-15-000588.hdr.sgml : 20150310 20150310171229 ACCESSION NUMBER: 0000921895-15-000588 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20150310 DATE AS OF CHANGE: 20150310 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: YuMe Inc CENTRAL INDEX KEY: 0001415624 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-ADVERTISING AGENCIES [7311] IRS NUMBER: 000000000 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-87912 FILM NUMBER: 15690019 BUSINESS ADDRESS: STREET 1: 1204 MIDDLEFIELD ROAD CITY: Redwood City STATE: CA ZIP: 94063 BUSINESS PHONE: 650-591-9400 MAIL ADDRESS: STREET 1: 1204 MIDDLEFIELD ROAD CITY: Redwood City STATE: CA ZIP: 94063 FORMER COMPANY: FORMER CONFORMED NAME: Yume Inc DATE OF NAME CHANGE: 20071018 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: AVI Partners, LLC CENTRAL INDEX KEY: 0001603432 IRS NUMBER: 900886983 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: PARKVIEW TOWER STREET 2: 1150 1ST AVENUE, SUITE 450 CITY: KING OF PRUSSIA STATE: PA ZIP: 19406 BUSINESS PHONE: (610) 354-8396 MAIL ADDRESS: STREET 1: PARKVIEW TOWER STREET 2: 1150 1ST AVENUE, SUITE 450 CITY: KING OF PRUSSIA STATE: PA ZIP: 19406 SC 13D/A 1 sc13da209789003_03062015.htm AMENDMENT NO. 2 TO THE SCHEDULE 13D sc13da209789003_03062015.htm
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

SCHEDULE 13D
(Rule 13d-101)

INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO § 240.13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
§ 240.13d-2(a)

(Amendment No. 2)1

YuMe, Inc.
(Name of Issuer)

Common Stock, $0.001 par value per share
(Title of Class of Securities)

98872B104
(CUSIP Number)
 
STEVE WOLOSKY, ESQ.
ANDREW FREEDMAN, ESQ.
OLSHAN FROME WOLOSKY LLP
Park Avenue Tower
65 East 55th Street
New York, New York 10022
(212) 451-2300
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

March 6, 2015
(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 ¨.

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.


_______________
1              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. 98872B104
 
1
NAME OF REPORTING PERSON
 
AVI CAPITAL YANKEE, LP
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) o
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
WC
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 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
 
3,003,560
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
3,003,560
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
3,003,560
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
9.1%
14
TYPE OF REPORTING PERSON
 
PN

 
2

 
CUSIP NO. 98872B104
 
1
NAME OF REPORTING PERSON
 
AVI CAPITAL PARTNERS, LP
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) o
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
WC
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 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
 
72,433
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
72,433
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
72,433
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
Less than 1%
14
TYPE OF REPORTING PERSON
 
PN

 
3

 
CUSIP NO. 98872B104
 
1
NAME OF REPORTING PERSON
 
AVI PARTNERS, LLC
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) o
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
AF
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 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
 
3,075,993
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
3,075,993
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
3,075,993
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
9.3%
14
TYPE OF REPORTING PERSON
 
OO

 
4

 
CUSIP NO. 98872B104
 
1
NAME OF REPORTING PERSON
 
AVI MANAGEMENT, LLC
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) o
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
AF
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 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
 
3,075,993
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
3,075,993
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
3,075,993
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
9.3%
14
TYPE OF REPORTING PERSON
 
OO

 
5

 
CUSIP NO. 98872B104
 
1
NAME OF REPORTING PERSON
 
JAMES A. DUNN, JR.
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) o
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
AF
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
USA
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
 - 0 -
8
SHARED VOTING POWER
 
3,075,993
9
SOLE DISPOSITIVE POWER
 
 - 0 -
10
SHARED DISPOSITIVE POWER
 
3,075,993
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
3,075,993
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
9.3%
14
TYPE OF REPORTING PERSON
 
IN

 
6

 
CUSIP NO. 98872B104
 
1
NAME OF REPORTING PERSON
 
DARREN C. WALLIS
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) o
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
AF
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
USA
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
 - 0 -
8
SHARED VOTING POWER
 
3,075,993
9
SOLE DISPOSITIVE POWER
 
 - 0 -
10
SHARED DISPOSITIVE POWER
 
3,075,993
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
3,075,993
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
9.3%
14
TYPE OF REPORTING PERSON
 
IN

 
7

 
CUSIP NO. 98872B104
 
1
NAME OF REPORTING PERSON
 
DEREK T. HARRAR
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) o
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
 
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
USA
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
 - 0 -
8
SHARED VOTING POWER
 
 - 0 -
9
SOLE DISPOSITIVE POWER
 
 - 0 -
10
SHARED DISPOSITIVE POWER
 
 - 0 -
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
 - 0 -
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
o
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
0%
14
TYPE OF REPORTING PERSON
 
IN

 
8

 
CUSIP NO. 98872B104

The following constitutes Amendment No. 2 to the Schedule 13D filed by the undersigned (“Amendment No. 2”).  This Amendment No. 2 amends the Schedule 13D as specifically set forth herein.
 
Item 2.
Identity and Background.
 
Item 2 is hereby amended and restated to read as follows:
 
 
(a)
This statement is filed by:
 
 
(i)
AVI Capital Yankee, LP, a Delaware limited partnership ("AVI Yankee"), with respect to the Shares directly owned by it;
 
 
(ii)
AVI Capital Partners, LP, a Delaware limited partnership ("AVI LP"), with respect to the Shares directly owned by it;
 
 
(iii)
AVI Partners, LLC, a Delaware limited liability company (“AVI Partners”), as the general partner of each of AVI Yankee and AVI LP;
 
 
(iv)
AVI Management, LLC, a Delaware limited liability company (“AVI Management”), as the investment manager of each of AVI Yankee and AVI LP;
 
 
 (v)
James A. Dunn, Jr., as a managing partner of AVI Partners and a managing member of AVI Management and as a nominee for election to the Board of Directors of the Issuer (the “Board”);
 
 
(vi)
Darren C. Wallis, as a managing partner of AVI Partners and a managing member of AVI Management; and
 
 
(vii)
Derek T. Harrar, as a nominee for election to the Board.
 
Each of the foregoing is referred to as a “Reporting Person” and collectively as the “Reporting Persons.” Each of the Reporting Persons is party to that certain Joint Filing and Solicitation Agreement as further described in Item 6. Accordingly, the Reporting Persons are hereby filing a joint Schedule 13D.
 
(b)           The address of the principal office of each of the Reporting Persons is 555 E. Lancaster Avenue, Suite 520, Radnor, Pennsylvania 19087.  Mr. Harrar does not currently have a principal business address.  For purposes of this Schedule 13D and serving as a nominee for the Board, Mr. Harrar’s business address is at c/o AVI Partners, LLC, 555 E. Lancaster Avenue, Suite 520, Radnor, Pennsylvania, 19087.
 
(c)           The principal business of each of AVI Yankee, AVI LP and AVI Partners is making value-oriented, special situation investments where identifiable catalysts are available to unlock value for all shareholders. AVI Management serves as the investment manager of each of AVI Yankee and AVI LP.  Each of Messrs. Dunn and Wallis serves as a managing partner of AVI Partners and a managing member of AVI Management.  The principal occupation of Mr. Harrar is advising private equity firms and their portfolio companies on technology, media and telecom investing and operating strategies and serving as a director of Brightcove, Inc., a leading global provider of cloud services for video.
 
 
9

 
CUSIP NO. 98872B104
 
(d)           No Reporting Person has, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).
 
(e)           No Reporting Person has, during the last five years, been 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.
 
(f)           Each of AVI Yankee, AVI LP, AVI Partners, and AVI Management is organized under the laws of the state of Delaware. Each of Messrs. Dunn, Wallis and Harrar is a citizen of the United States of America.
 
Item 3.
Source and Amount of Funds or Other Consideration.
 
Item 3 is hereby amended and restated to read as follows:
 
The Shares purchased by each of AVI Yankee and AVI LP were purchased with working capital (which may, at any given time, include margin loans made by brokerage firms in the ordinary course of business) in open market purchases, except as otherwise noted, as set forth in Schedule A, which is incorporated by reference herein.
 
The aggregate purchase price of the 3,003,560 Shares owned directly by AVI Yankee is approximately $15,695,482, excluding brokerage commissions. The aggregate purchase price of the 72,433 Shares owned directly by AVI LP is approximately $372,038, excluding brokerage commissions.
 
Item 4.
Purpose of Transaction.
 
Item 4 is hereby amended to add the following:
 
On March 6, 2015, AVI Yankee delivered a letter to the Issuer nominating James A. Dunn, Jr. and Derek T. Harrar (the “Nominees”) for election to the Board at the Issuer’s 2015 annual meeting of stockholders (the “Annual Meeting”).  The Reporting Persons believe that the addition of the Nominees to the Board is necessary to help enhance stockholder value at the Issuer.  The Reporting Persons have engaged, and intend to continue to engage, in discussions with management and the Board regarding Board representation and the composition of the Board, generally.
 
Item 5.
Interest in Securities of the Issuer.
 
Items 5(a)-(c) are hereby amended and restated to read as follows:
 
The aggregate percentage of Shares reported owned by each person named herein is based upon 33,044,651 Shares outstanding, as of October 31, 2014, which is the total number of Shares outstanding as reported in the Issuer’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on November 10, 2014.
 
 
10

 
CUSIP NO. 98872B104
 
A.
AVI Yankee
 
 
(a)
As of the close of business on March 10, 2015, AVI Yankee beneficially owned 3,003,560 Shares.
 
Percentage: Approximately 9.1%
 
 
(b)
1. Sole power to vote or direct vote: 3,003,560
 
2. Shared power to vote or direct vote: 0
 
3. Sole power to dispose or direct the disposition: 3,003,560
 
4. Shared power to dispose or direct the disposition: 0

 
(c)
The transactions in the Shares by AVI Yankee since the filing of Amendment No. 1 to the Schedule 13D are set forth in Schedule A and are incorporated herein by reference.
 
B.
AVI LP
 
 
(a)
As of the close of business on March 10, 2015, AVI LP beneficially owned 72,433 Shares.
 
Percentage: Less than 1%
 
 
(b)
1. Sole power to vote or direct vote: 72,433
 
2. Shared power to vote or direct vote: 0
 
3. Sole power to dispose or direct the disposition: 72,433
 
4. Shared power to dispose or direct the disposition: 0

 
(c)
AVI LP has not entered into any transactions in the Shares since the filing of Amendment No. 1 to the Schedule 13D.
 
C.
AVI Partners
 
 
(a)
AVI Partners, as the general partner of each of AVI Yankee and AVI LP, may be deemed to beneficially own the 3,075,993 Shares owned in the aggregate by AVI Yankee and AVI LP.
 
Percentage: Approximately 9.3%
 
 
(b)
1. Sole power to vote or direct vote: 3,075,993
 
2. Shared power to vote or direct vote: 0
 
3. Sole power to dispose or direct the disposition: 3,075,993
 
4. Shared power to dispose or direct the disposition: 0

 
(c)
AVI Partners has not entered into any transactions in the Shares since the filing of Amendment No. 1 to the Schedule 13D.  The transactions in the Shares on behalf of AVI Yankee since the filing of Amendment No. 1 to the Schedule 13D are set forth in Schedule A and are incorporated herein by reference.
 
 
11

 
CUSIP NO. 98872B104
 
D.           AVI Management
 
 
(a)
AVI Management, as the investment manager of each of AVI Yankee and AVI LP, may be deemed to beneficially own the 3,075,993 Shares owned in the aggregate by AVI Yankee and AVI LP.
 
Percentage: Approximately 9.3%
 
 
(b)
1. Sole power to vote or direct vote: 3,075,993
 
2. Shared power to vote or direct vote: 0
 
3. Sole power to dispose or direct the disposition: 3,075,993
 
4. Shared power to dispose or direct the disposition: 0

 
(c)
AVI Management has not entered into any transactions in the Shares since the filing of Amendment No. 1 to the Schedule 13D. The transactions in the Shares on behalf AVI Yankee since the filing of Amendment No. 1 to the Schedule 13D are set forth in Schedule A and are incorporated herein by reference.
 
E.
Messrs. Dunn and Wallis
 
 
(a)
Each of Messrs. Dunn and Wallis, as a managing partner of AVI Partners and a managing member of AVI Management, may be deemed to beneficially own the 3,075,993 Shares owned in the aggregate by AVI Yankee and AVI LP.
 
Percentage: Approximately 9.3%
 
 
(b)
1. Sole power to vote or direct vote: 0
 
2. Shared power to vote or direct vote: 3,075,993
 
3. Sole power to dispose or direct the disposition: 0
 
4. Shared power to dispose or direct the disposition: 3,075,993

 
(c)
None of Messrs. Dunn or Wallis has entered into any transactions in the Shares since the filing of Amendment No. 1 to the Schedule 13D. The transactions in the Shares on behalf of AVI Yankee since the filing of Amendment No. 1 to the Schedule 13D are set forth in Schedule A and are incorporated herein by reference.
 
F.           Mr. Harrar
 
 
(a)
As of the close of business on March 10, 2015, Mr. Harrar did not own any Shares.
 
Percentage: 0%
 
 
(b)
1. Sole power to vote or direct vote: 0
 
2. Shared power to vote or direct vote: 0
 
3. Sole power to dispose or direct the disposition: 0
 
4. Shared power to dispose or direct the disposition: 0

 
(c)
Mr. Harrar has not entered into any transactions in the Shares since the filing of Amendment No. 1 to the Schedule 13D.
 
Each Reporting Person, as a member of a “group” with the other Reporting Persons for the purposes of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, may be deemed the beneficial owner of the Shares directly owned by the other Reporting Persons.  Each Reporting Person disclaims beneficial ownership of such Shares except to the extent of his or its pecuniary interest therein.
 
 
12

 
CUSIP NO. 98872B104
 
Item 6.
Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.
 
Item 6 is hereby amended to add the following:
 
On March 10, 2015, the Reporting Persons entered into a Joint Filing and Solicitation Agreement pursuant to which, among other things, (i) they agreed to the joint filing on behalf of each of them of statements on Schedule 13D, and any amendments thereto, with respect to the securities of the Issuer, (ii) they agreed to solicit proxies or written consents for the election of the Nominees to the Board at the Annual Meeting (the “Solicitation”), and (iii) AVI Yankee agreed to pay directly all pre-approved expenses incurred in connection with the Solicitation. A copy of the Joint Filing and Solicitation Agreement is attached hereto as Exhibit 99.1 and is incorporated herein by reference.
 
AVI Yankee has entered into a letter agreement, pursuant to which it and its affiliates have agreed to indemnify Mr. Harrar against any and all claims of any nature arising from the Solicitation and any related transactions.  A form of the indemnification letter agreement is attached hereto as Exhibit 99.2 and is incorporated herein by reference.
 
Item 7.
Material to be Filed as Exhibits.
 
Item 7 is hereby amended to add the following exhibits:
 
 
99.1
Joint Filing and Solicitation Agreement by and between AVI Capital Yankee, LP, AVI Capital Partners, LP, AVI Partners, LLC, AVI Management, LLC, James A . Dunn Jr., Darren C. Wallis, and Derek T. Harrar, dated March 10, 2015.
 
 
99.2
Form of Indemnification Letter Agreement.
 
 
99.3
Power of Attorney.
 
 
13

 
CUSIP NO. 98872B104
 
SIGNATURES
 
After reasonable inquiry and to the best of his knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.
 
Dated:  March 10, 2015
AVI CAPITAL YANKEE, LP
   
 
By:
AVI Partners, LLC,
its general partner
   
 
By:
/s/ Darren C. Wallis
   
Name:
Darren C. Wallis
   
Title:
Managing Partner


 
AVI CAPITAL PARTNERS, LP
   
 
By:
AVI Partners, LLC,
its general partner
   
 
By:
/s/ Darren C. Wallis
   
Name:
Darren C. Wallis
   
Title:
Managing Partner


 
AVI PARTNERS, LLC
   
 
By:
/s/ Darren C. Wallis
   
Name:
Darren C. Wallis
   
Title:
Managing Partner


 
AVI MANAGEMENT, LLC
   
 
By:
/s/ Darren C. Wallis
   
Name:
Darren C. Wallis
   
Title:
Managing Member

   
   
 
/s/ Darren C. Wallis
 
DARREN C. WALLIS
Individually and as attorney-in-fact for James A. Dunn, Jr. and Derek T. Harrar
 
 
14

 
CUSIP NO. 98872B104
 
SCHEDULE A
 
Transactions in the Shares Since the Filing of Amendment No. 1 to the Schedule 13D
 
Shares of Common Stock
Purchased/(Sold)
Price Per
Share($)
Date of
Purchase/(Sale)

AVI CAPITAL YANKEE, LP

15,253
5.4838
02/24/2015
81,000
5.5326
02/25/2015
27,100
5.6411
02/26/2015
20,000
5.6443
02/27/2015
15,000
5.6278
03/02/2015
14,300
5.6322
03/03/2015
12,275
5.6300
03/04/2015
55,000
5.7275
03/05/2015
40,000
5.5900
03/09/2015
40,000
5.5500
03/10/2015


EX-99.1 2 ex991to13da209789003_030615.htm JOINT FILING AND SOLICITATION AGREEMENT ex991to13da209789003_030615.htm
Exhibit 99.1
 
JOINT FILING AND SOLICITATION AGREEMENT
 
WHEREAS, certain of the undersigned are stockholders, direct or beneficial, of YuMe, Inc., a Delaware corporation (the “Company”);
 
WHEREAS, AVI Capital Yankee, LP, a Delaware limited partnership (“AVI”),  AVI Capital Partners, LP, a Delaware limited partnership, AVI Partners, LLC, a Delaware limited liability company, AVI Management, LLC, a Delaware limited liability company, James A. Dunn, Jr., Darren C. Wallis, and Derek T. Harrar wish to form a group for the purpose of seeking representation on the Board of Directors of the Company (the “Board”) at the 2015 annual meeting of stockholders of the Company (including any other meeting of stockholders held in lieu thereof, and any adjournments, postponements, reschedulings or continuations thereof, the “2015 Annual Meeting”) and for the purpose of taking all other action necessary to achieve the foregoing.
 

NOW, IT IS AGREED, this 10th day of March 2015 by the parties hereto:
 
1.           In accordance with Rule 13d-1(k)(1)(iii) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), each of the undersigned (collectively, the “Group”) agrees to the joint filing on behalf of each of them of statements on Schedule 13D, and any amendments thereto, with respect to the securities of the Company.  Each member of the Group shall be responsible for the accuracy and completeness of his/its own disclosure therein, and is not responsible for the accuracy and completeness of the information concerning the other members, unless such member knows or has reason to know that such information is inaccurate.  AVI or its representative shall provide each member of the Group with copies of all Schedule 13D filings and other public filings to be filed on behalf of such member at least 24 hours prior to the filing or submission thereof.
 
2.           So long as this agreement is in effect, each of the undersigned shall provide written notice to Olshan Frome Wolosky LLP (“Olshan”) of (i) any of their purchases or sales of securities of the Company; or (ii) any securities of the Company over which they acquire or dispose of beneficial ownership.  Notice shall be given no later than 24 hours after each such transaction.
 
3.           Each of the undersigned agrees to form the Group for the purpose of (i) soliciting proxies or written consents for the election of the persons nominated by the Group to the Board at the 2015 Annual Meeting, (ii) taking such other actions as the parties deem advisable, and (iii) taking all other action necessary or advisable to achieve the foregoing.
 
4.           AVI shall have the right to pre-approve all expenses incurred in connection with the Group’s activities and agrees to pay directly all such pre-approved expenses.
 
5.           Each of the undersigned agrees that any SEC filing, press release or stockholder communication proposed to be made or issued by the Group or any member of the Group in connection with the Group’s activities set forth in Section 3 shall be first approved by AVI, or its representatives, which approval shall not be unreasonably withheld.
 
6.           The relationship of the parties hereto shall be limited to carrying on the business of the Group in accordance with the terms of this Agreement.  Such relationship shall be construed and deemed to be for the sole and limited purpose of carrying on such business as described herein.  Nothing herein shall be construed to authorize any party to act as an agent for any other party, or to create a joint venture or partnership, or to constitute an indemnification.  Nothing herein shall restrict any party’s right to purchase or sell securities of the Company, as he/it deems appropriate, in his/its sole discretion, provided that all such sales are made in compliance with all applicable securities laws.
 
 
 

 
 
7.           This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute but one and the same instrument, which may be sufficiently evidenced by one counterpart.
 
8.           In the event of any dispute arising out of the provisions of this Agreement or their investment in the Company, the parties hereto consent and submit to the exclusive jurisdiction of the Federal and State Courts in the State of New York.
 
9.           Any party hereto may terminate his/its obligations under this Agreement on 24 hours’ written notice to all other parties, with a copy by fax to Steve Wolosky at Olshan, Fax No. (212) 451-2222.
 
10.         Each party acknowledges that Olshan shall act as counsel for both the Group and AVI and its affiliates relating to their investment in the Company.
 
11.         Each of the undersigned parties hereby agrees that this Agreement shall be filed as an exhibit to a Schedule 13D pursuant to Rule 13d-1(k)(1)(iii) under the Exchange Act.
 
 
 

 
 
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.
 
 
AVI CAPITAL YANKEE, LP
   
 
By:
AVI Partners, LLC,
its general partner
   
 
By:
/s/ Darren C. Wallis
   
Name:
Darren C. Wallis
   
Title:
Managing Partner


 
AVI CAPITAL PARTNERS, LP
   
 
By:
AVI Partners, LLC,
its general partner
   
 
By:
/s/ Darren C. Wallis
   
Name:
Darren C. Wallis
   
Title:
Managing Partner


 
AVI PARTNERS, LLC
   
 
By:
/s/ Darren C. Wallis
   
Name:
Darren C. Wallis
   
Title:
Managing Partner


 
AVI MANAGEMENT, LLC
   
 
By:
/s/ Darren C. Wallis
   
Name:
Darren C. Wallis
   
Title:
Managing Member
 
   
   
 
/s/ Darren C. Wallis
 
DARREN C. WALLIS
Individually and as attorney-in-fact for James A. Dunn, Jr. and Derek T. Harrar
 
   
   
 
/s/ Derek T. Harrar
 
DEREK T. HARRAR

 
EX-99.2 3 ex992to13da209789003_030615.htm FORM OF INDEMNIFICATION LETTER AGREEMENT ex992to13da209789003_030615.htm
Exhibit 99.2
 
AVI CAPITAL YANKEE, LP
c/o AVI Partners, LLC
555 E. Lancaster Avenue, Suite 520
Radnor, Pennsylvania 19087

 
March __, 2015


Re:           YuMe, Inc.
 
Dear _______:

Thank you for agreeing to serve as a nominee for election to the Board of Directors of YuMe, Inc. (the “Company”) in connection with the proxy solicitation that AVI Capital Yankee, LP and its affiliates (collectively, the “AVI Group”) is considering undertaking to nominate and elect directors at the Company’s 2015 annual meeting of stockholders, or any other meeting of stockholders held in lieu thereof, and any adjournments, postponements, reschedulings or continuations thereof (the “AVI Group Solicitation”).  Your outstanding qualifications, we believe, will prove a valuable asset to the Company and all of its stockholders.  This letter (“Agreement”) will set forth the terms of our agreement.
 
The members of the AVI Group agree to jointly and severally indemnify and hold you harmless against any and all claims of any nature, whenever brought, arising from the AVI Group Solicitation and any related transactions, irrespective of the outcome; provided, however, that you will not be entitled to indemnification for claims arising from your gross negligence, willful misconduct, intentional and material violations of law, criminal actions or material breach of the terms of this agreement; provided further, that upon your becoming a director of the Company, this indemnification shall not apply to any claims made against you in your capacity as a director of the Company.  This indemnification will include any and all losses, liabilities, damages, demands, claims, suits, actions, judgments, or causes of action, assessments, costs and expenses, including, without limitation, interest, penalties, reasonable attorneys’ fees, and any and all reasonable costs and expenses incurred in investigating, preparing or defending against any litigation, commenced or threatened, any civil, criminal, administrative or arbitration action, or any claim whatsoever, and any and all amounts paid in settlement of any claim or litigation asserted against, resulting, imposed upon, or incurred or suffered by you, directly or indirectly, as a result of or arising from the AVI Group Solicitation and any related transactions (each, a “Loss”).
 
In the event of a claim against you pursuant to the prior paragraph or the occurrence of a Loss, you shall give the AVI Group prompt written notice of such claim or Loss (provided that failure to promptly notify the AVI Group shall not relieve us from any liability which we may have on account of this Agreement, except to the extent we shall have been materially prejudiced by such failure).  Upon receipt of such written notice, the AVI Group will provide you with counsel to represent you.  Such counsel shall be reasonably acceptable to you.  In addition, you will be reimbursed promptly for all Losses suffered by you and as incurred as provided herein.  The AVI Group may not enter into any settlement of loss or claim without your consent unless such settlement includes a release of you from any and all liability in respect of such claim.
 
You hereby agree to keep confidential and not disclose to any party, without the consent of the AVI Group, any confidential, proprietary or non-public information (collectively, “Information”) of the AVI Group, its affiliates or members of its Schedule 13D group which you have heretofore obtained or may obtain in connection with your service as a nominee hereunder.  Notwithstanding the foregoing, Information shall not include any information that is publicly disclosed by the AVI Group, its affiliates or members of its Schedule 13D group or any information that you can demonstrate is now, or hereafter becomes, through no act or failure to act on your part, otherwise generally known to the public.
 
 
 

 

Notwithstanding the foregoing, if you are required by applicable law, rule, regulation or legal process to disclose any Information you may do so provided that you first promptly notify the AVI Group so that the AVI Group or any member thereof may seek a protective order or other appropriate remedy or, in the AVI Group’s sole discretion, waive compliance with the terms of this Agreement.  In the event that no such protective order or other remedy is obtained or the AVI Group does not waive compliance with the terms of this Agreement, you may consult with counsel at the cost of the AVI Group and you may furnish only that portion of the Information which you are advised by counsel is legally required to be so disclosed and you will request that the party(ies) receiving such Information maintain it as confidential.

All Information, all copies thereof, and any studies, notes, records, analysis, compilations or other documents prepared by you containing such Information, shall be and remain the property of the AVI Group and, upon the request of a representative of the AVI Group, all such information shall be returned or, at the AVI Group’s option, destroyed by you, with such destruction confirmed by you to the AVI Group in writing.

This letter agreement shall be governed by the laws of the State of New York, without regard to the principles of the conflicts of laws thereof.
 

 
*              *              *
 
 
 

 
 
This letter agreement may be executed in counterparts, each of which shall be deemed an original, and all of which, taken together, shall constitute one and the same instrument.
 

 
Very truly yours,
 
 
AVI CAPITAL YANKEE, LP
 
 
By:
AVI Partners, LLC,
its general partner
     
 
By:
 
   
Name:
Darren C. Wallis
   
Title:
Managing Partner




ACCEPTED AND AGREED:


___________________________







 
EX-99.3 4 ex993to13da209789003_030615.htm POWER OF ATTORNEY ex993to13da209789003_030615.htm
Exhibit 99.3
 
POWER OF ATTORNEY
 
Know all by these presents, that the undersigned hereby constitutes and appoints Darren C. Wallis, the undersigned’s true and lawful attorney-in-fact, to take any and all action in connection with (i) the undersigned’s beneficial ownership of, or participation in a group with respect to, securities of YuMe, Inc. (the “Company”) directly or indirectly beneficially owned by AVI Capital Yankee, LP or any of its affiliates (collectively, the “AVI Group”) and (ii) any proxy solicitation of the AVI Group to elect the AVI Group’s slate of director nominees to the board of directors of the Company at the 2015 annual meeting of stockholders of the Company (the “Solicitation”).  Such action shall include, but not be limited to:
 
1.           executing for and on behalf of the undersigned any Schedule 13D, and amendments thereto, filed by the AVI Group that are required to be filed under Section 13(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) and the rules thereunder in connection with the undersigned’s beneficial ownership of, or participation in a group with respect to, securities of the Company or the Solicitation;
 
2.           executing for and on behalf of the undersigned all Forms 3, 4 and 5 required to be filed under Section 16(a) of the Exchange Act and the rules thereunder in connection with the undersigned’s beneficial ownership of, or participation in a group with respect to, securities of the Company or the Solicitation;
 
3.           executing for and on behalf of the undersigned all Joint Filing and Solicitation Agreements or similar documents pursuant to which the undersigned shall agree to be a member of the AVI Group;
 
4.           performing any and all acts for and on behalf of the undersigned that may be necessary or desirable to complete and execute any such document, complete and execute any amendment or amendments thereto, and timely file such form with the United States Securities and Exchange Commission and any stock exchange or similar authority; and
 
5.           taking any other action of any type whatsoever in connection with the Solicitation, including entering into any settlement agreement, that in the opinion of such attorney-in-fact, may be of benefit to, in the best interest of, or legally required by, the undersigned, it being understood that the documents executed by such attorney-in-fact on behalf of the undersigned pursuant to this Power of Attorney shall be in such form and shall contain such terms and conditions as such attorney-in-fact may approve in such attorney-in-fact's discretion.
 
The undersigned hereby grants to such attorney-in-fact full power and authority to do and perform any and every act and thing whatsoever requisite, necessary, or proper to be done in the exercise of any of the rights and powers herein granted, as fully to all intents and purposes as the undersigned might or could do if personally present, with full power of substitution or revocation, hereby ratifying and confirming all that such attorney-in-fact, or such attorney-in-fact’s substitutes, shall lawfully do or cause to be done by virtue of this Power of Attorney and the rights and powers herein granted.  The undersigned acknowledges that the foregoing attorney-in-fact, in serving in such capacity at the request of the undersigned, is not assuming any of the undersigned's responsibilities to comply with Section 13(d), Section 16 or Section 14 of the Exchange Act.
 
This Power of Attorney shall remain in full force and effect until the undersigned is no longer a member of the AVI Group unless earlier revoked by the undersigned in a signed writing delivered to the foregoing attorney-in-fact.
 
IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney to be executed as of this 9th day of March 2015.
 

 
/s/ Derek T. Harrar
 
DEREK T. HARRAR