Exhibit 10.1
SECURITIES PURCHASE
AGREEMENT
Between
DG FastChannel,
Inc.
And
Midwood Capital Management
LLC,
Midwood Capital Partners,
L.P.,
Midwood Capital Partners QP,
L.P.
December 22, 2006
THIS SECURITIES PURCHASE AGREEMENT
(this “ Agreement ”) is entered into effective
as of December 22, 2006 between DG FastChannel, Inc., a Delaware
corporation (the “Purchaser”), Midwood Capital LLC, a
Delaware limited liability company (“ Seller ”),
Midwood Capital Partners, L.P., a Delaware limited partnership
(“LP”) and Midwood Capital Partners QP, L.P., a
Delaware limited partnership (“QP” and together with
LP, the “Funds”)’
WHEREAS, Seller and the Funds
beneficially own 1,108,674 shares (the “Shares”) of
common stock, no par value, of POINT.360 (“Point 360”),
a California corporation;
WHEREAS, Seller is the sole general
partner of, and manages and provides investment advice to, each of
the Funds;
WHEREAS, Purchaser desires to
acquire the Shares, free from all liens, pledges, encumbrances,
proxies, voting agreements or arrangements of any kind with respect
to the Shares, on the terms, representations warranties, and
covenants hereinafter set forth.
NOW, THEREFORE, in consideration of
the foregoing premises and the covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as
follows:
1.
Purchase . Seller shall deliver, convey and transfer,
or cause the Funds to deliver, convey and transfer, the Shares
against delivery in same day funds by wire transfer of $3.25 per
Share, for a total purchase price (“Purchase Price”) of
$3,603,191, to a brokerage account designated in writing by
Purchaser, by irrevocable written instructions (the “Transfer
Instructions”) to the broker(s) engaged by Seller on behalf
of the Funds which presently hold or otherwise have custody of the
Shares. Seller shall provide Purchaser with written wire
instructions for delivery of the Purchase Price to an account(s) at
a U.S. financial institution or broker (the “Wire
Instructions”), upon which Purchaser can rely in full payment
for the Shares. Against confirmation of delivery of the
Transfer Instructions to such broker(s) which presently hold or
have custody of the Shares, Purchaser shall deliver or cause to be
delivered the Purchaser Price in accordance with the Wire
Instructions.
2.
Representations, Warranties and Covenants of the Purchaser
. Purchaser hereby represents, warrants and covenants to each
of the Seller and the Funds as follows.
2.1
Due Authorization . Purchaser has all requisite power
and authority to execute, deliver and perform its obligations under
this Agreement, and has taken all necessary corporate action to
enter and perform this Agreement. This Agreement has been
duly authorized and validly executed and delivered by Purchaser and
constitutes a legal, valid and binding agreement of Purchaser
enforceable against Purchaser in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors’ and contracting parties’ rights generally
and except as enforceability may be subject to general principles
of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law).
2.2
Non-Contravention . The execution and delivery of this
Agreement, the purchase of the Shares under this Agreement, the
fulfillment of the terms of this Agreement and the consummation of
the transactions contemplated hereby will not (A) conflict with or
constitute a violation of, or default (with or without the giving
of notice or the passage of time or both) under,
1
(i) any material bond,
debenture, note or other evidence of indebtedness, or under any
material lease, indenture, mortgage, deed of trust, loan agreement,
joint venture or other agreement or instrument to which Purchaser
is a party, (ii) the charter, by-laws or other organizational
documents of Purchaser, as applicable, or (iii) any law,
administrative regulation, ordinance or order of any court or
governmental agency, arbitration panel or authority applicable to
Purchaser or its property, or (B) result in the creation or
imposition of any lien, encumbrance, claim, security interest or
restriction whatsoever upon any of the material properties or
assets of Purchaser or an acceleration of indebtedness pursuant to
any obligation, agreement or condition contained in any material
bond, debenture, note or any other evidence of indebtedness or any
material indenture, mortgage, deed of trust or any other agreement
or instrument to which Purchaser is a party or by which any of them
is bound or to which any of the property or assets of Purchaser is
subject. No consent, approval, authorization or other order
of, or registration, qualification or filing with, any regulatory
body, administrative agency, self-regulatory organization, stock
exchange or market, or other governmental body in the United States
is required for the execution and delivery of this Agreement and
the acquisition of the Shares by Purchaser, other than with respect
to such filings as may be required by Purchaser under the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”).
2.3
Status . Purchaser acknowledges that may be entering into
this Agreement and acquiring the Shares on the basis of incomplete
or inaccurate information available to it, and that neither Seller
nor the Funds, nor any of their respective affiliates or
representatives, have made any statement or representations with
respect to the financial condition, results of operations or
prospects of Point 360. Purchaser hereby waives any claims or
causes of action it may have against Seller, the Funds or any of
their respective affiliates or representatives with respect to the
offer to sell and the sale of the Shares under the securities laws
of the Untied States, applicable state securities or other laws or
judicial doctrines, upon delivery of the Shares as provided under
this Agreement.
3.
Representations, Warranties and Covenants of Seller and the
Funds . Each of Seller and the Funds, severally and not
joint, hereby represents, warrants and covenants to Purchaser as
follows:
3.1
Title . The Funds are the beneficial owner of the
Shares and hold good and marketable title to the Shares without
restriction on sale or transfer, and upon consummation of the
transaction contemplated
