Exhibit 4.16
October 24, 2000
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Exhibit 4.16
Letter Agreement
Winter Harbor, L.L.C.
c/o First Media, L.P.
11400 Skipwith Lane
Potomac, Maryland 20854
Gentlemen,
Reference is made to the Securities Purchase Agreement, dated as of
August 30, 2000, as amended, (the "Securities Purchase Agreement"), by and among
Winter Harbor, L.L.C., a Delaware limited liability company ("Winter Harbor"),
Red Cube International AG, an Aktiengesellschaft organized under the laws of
Switzerland ("Red Cube") and KPR Finanz-Und Verwaltungs AG, an
Aktiengesellschaft organized under the laws of Switzerland. Red Cube and Winter
Harbor have previously agreed that the First Closing would occur on October 25,
2000. The parties agree that pursuant to the terms of this letter agreement (the
"Letter Agreement") all provisions of the Securities Purchase Agreement shall
remain in full force and effect except follows:
1 Subject to the receipt by Winter Harbor of the payment described in paragraph
2 of this Letter Agreement, the parties agree that:
Section 7.1(a)(i) of the Securities Purchase Agreement is
amended to read in its entirety as follows:
(a) Except as provided in Section 7.1(a)(ii), or as otherwise
agreed to by Red Cube and Winter Harbor, the First Closing shall occur
at 10:00 a.m. on December 31, 2000 or such earlier date as Red Cube
shall designate to Winter Harbor on not less than five Business Days'
written notice.
(b) Each of Section 9.1(c) and Section 9.2(c) of the
Securities Purchase Agreement is amended to read in its entirety as follows:
Upset Date. If the First Closing shall not have occurred
on or prior to December 31, 2000.
2 Red Cube shall pay to Winter Harbor on October 25, 2000, U.S. $20,000,000 by
wire transfer of same-day funds to the account previously designated by Winter
Harbor. This payment shall not be refundable by Winter Harbor to Red Cube under
any circumstances. However, if the First Closing occurs, Winter Harbor agrees to
credit the amount of such payment, without interest, against the purchase price
payable by Red Cube at the First Closing under Section 2.2(a) of the Securities
Purchase Agreement. The credit to Red Cube, provided for in the preceding
sentence of this
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paragraph 2, which Red Cube would have been entitled to receive if the First
Closing had occurred, may be taken into account in calculating the amount of
damages suffered by Red Cube in the event of Winter Harbor's breach of the
Securities Purchase Agreement.
3 Capitalized terms used herein but not defined herein have the meanings
ascribed to such terms in the Securities Purchase Agreement.
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The following page is the signature page.
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Kindly acknowledge your confirmation and agreement with the foregoing
by countersigning this letter agreement in the space provided below, whereupon
this will become a binding agreement among us.
Sincerely,
Red Cube International AG
By: /s/ Niklaus F. Zenger
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Name: Niklaus F. Zenger
Title: CEO
KPR Finanz-Und Verwaltungs AG
By: /s/ Niklaus F. Zenger
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Name: Niklaus F. Zenger
CONFIRMED AND AGREED BY:
Winter Harbor, L.L.C.
By: First Media, L.P., its member
By: First Media Corporation, its general partner
By: /s/ Ralph W. Hardy, Jr.
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Title: Secretary and Principal Executive
Officer
