AGREEMENT AND PLAN OF MERGER
This
Amendment, dated as of February 12, 2008, is among
Mandalay Media, Inc., a Delaware corporation
(“Parent”), Twistbox Acquisition, Inc., a Delaware
corporation and a wholly-owned subsidiary of Parent
(“Merger Sub”), Twistbox Entertainment, Inc., a
Delaware corporation (the “Company”), and Adi
McAbian and Spark Capital, L.P. (“Spark Capital”)
as representatives of the stockholders of the Company
(collectively, the “Stockholder Representatives”
and individually, a “Stockholder
Representative”).
1.
Reference to Merger Agreement; Definitions.
Reference
is made to the Agreement and Plan of Merger dated as of December
31, 2007, by and among Parent, Merger Sub, the Company and the
Stockholder Representatives (the “Merger Agreement”).
Terms defined in the Merger Agreement and not otherwise defined
herein are used herein with the meanings so defined.
2.
Amendment to Section 1.4(a) of Merger Agreement. Section 1.4(a) of
the Merger Agreement is hereby deleted in its entirety and replaced
with the following:
“(a)
At
the Effective Time, the Certificate of Incorporation of the
Company shall be the Certificate of Incorporation of the
Surviving Corporation.”
3.
Amendment to Schedule 1.5(a) of Merger Agreement
.
Schedule 1.5(a) of the Merger Agreement is hereby deleted in its
entirety and replaced with new Schedule 1.5(a) attached
hereto.
4.
Amendment to Section 1.5(e) of Merger Agreement. Section 1.5(e) of
the Merger Agreement is hereby deleted in its entirety and replaced
with the following:
“(e)
Stock Options .
At
the Effective Time, each
outstanding option (a “Company Option”) to purchase
shares of Company Common Stock issued pursuant to the
Company’s 2006 Stock Incentive Plan (the “Stock
Plan”) shall be assumed by Parent, on the same terms and
conditions as were applicable under the Stock Plan immediately
prior to the Effective Time, except that: (i)
the number of shares of Parent Common Stock subject to each Company
Option shall be determined by multiplying the number of shares of
Company Common Stock that were subject to such Company Option
immediately prior to the Effective Time by the Option Conversion
Ratio (as defined below), and rounding the resulting number down to
the nearest whole number of shares of Paren
