Muzak Holdings LLC NOTICE TO UNITHOLDERS

Transcription

1 Muzak Holdings LLC NOTICE TO UNITHOLDERS To the Holders of Units of Muzak Holdings LLC (the "Compan"): Introduction We are pleased to advise you that the Company has entered into an agreement and plan of merger (the "Merger Agreement"), dated as of March 24, 2011, with Mood Media Corporation, a corporation existing under the laws of Canada ("Mood Media"), Mood US Acquisition, LLC, a Delaware limited liability company ("Merger Sub"), Silver Point Capital Fund, L.P., a Delaware limited partnership, SP Muzak Inc., a Delaware corporation and Silver Point Capital, L.P., a Delaware limited partnership. Capitalized terms used but not defined herein have the meanings assigned to them in the Merger Agreement, a copy of which is attached hereto as Annex A. In accordance with the terms of the Merger Agreement, if the merger of Merger Sub with and into the Company (the "Merger") becomes effective, each Common Unit and Preferred Unit issued and outstanding immediately prior to the date and time at which the Merger becomes effective (the "Effective Time"), other than any Units owned by the Company or any of its Subsidiaries (which will be cancelled), shall, by virtue of the Merger and without any action on the part of the holder thereof, be converted at the Effective Time into the right to receive, without interest and subject to any applicable withholding tax specified in Section 2.13 of the Merger Agreement, the Common Unit Consideration or Preferred Unit Consideration, as the case may be, but only after delivery of a Letter of Transmittal to the Surviving Company as provided in Section 2.8 of the Merger Agreement. At the Effective Time all such Units shall no longer be outstanding and shall automatically be cancelled and shall cease to exist, and each holder of such Units shall cease to have any rights with respect thereto, except the right to receive the Common Unit Consideration or Preferred Unit Consideration, as the case may be, as provided herein without interest. The right to receive any Common Unit Consideration or Preferred Unit Consideration shall not be represented by any certificate or other instrument and shall be nontransferable (including by pledge or grant of a security interest) except by operation of law (including testamentary transfers), in connection with a transfer to an existing Unitholder or with the prior written consent of the Surviving Company (not to be unreasonably withheld, conditioned or delayed). The Preferred Unit Consideration consists of a cash amount payable at the Effective Time (subject to any applicable withholding tax as specified in Section 2.13 of the Merger Agreement) equal to (a) the product of the Closing Preferred Unit Payment multiplied by the number of

2 Preferred Units held by such holder, and (b) additional amounts, if any, in accordance with a Payment Waterfall described in the Merger Agreement (see definition of "Payment Waterfall" in the Merger Agreement) and below. The Common Unit Consideration consists of the right to receive amounts, if any, in accordance with the Payment Waterfall. At the Effective Time, Mood Media will deposit with the Escrow Agent the Escrowed Consideration. The Escrowed Consideration is intended to support the obligation to compensate Mood Media and its subsidiaries for Mood Media Covered Losses pursuant to Article 11I of the Merger Agreement. The Escrowed Consideration will be released one year following Closing, to the extent Mood Media is not entitled to compensation for Mood Media Covered Losses and has not otherwise submitted a claim for Mood Media Covered Losses (in which event such claimed amounts will be withheld until resolution of such claim), and distributed in accordance with the Payment Waterfall. Claims for compensation for Mood Media Covered Losses will be administered on behalf of the Unitholders by Silver Point Capital, L.P., as Unitholder Representative. In addition, if the Combined Business EBITDA exceeds certain thresholds in the first, second and third years following the Effective Time, Mood Media will be required to pay one or more Performance Payments, not to exceed $30 million in the aggregate. If Mood Media has made claims for Mood Media Covered Losses prior to the second anniversary of the Effective Time and a Performance Payment becomes due, Mood Media will be entitled to set-off such Covered Losses against such Performance Payment (or, in certain circumstances, to deposit in escrow that portion of the Performance Payment(s) until the claim is resolved). To the extent Performance Payments are payable and not so escrowed (and if they are escrowed, to the extent the claim(s) are thereafter resolved in favor of the Unitholders), they are to be distributed in accordance with the Payment Waterfall. The aggregate amount of compensation to which Mood Media is entitled in respect of Mood Media Covered Losses, whether by withdraw from the Escrowed Consideration or set-off against Performance Payments, is $22 million. Additionally, if the Escrowed Consideration would otherwise include cash in excess of $15 million, such excess will not be escrowed and instead will be distributed at the Closing to Unitholders in accordance with the Payment Waterfall. Under the Payment Waterfall, any amounts released from the Escrow Account and any Performance Payments distributable to Unitholders will be payable in the following order of priority: " first, to reimburse the Unitholder Representative for its third-party, out-of-pocket expenses as Unitholder Representative; " second, to holders of Preferred Units as of the Effective Time, pro rata, until such holders have received an amount equal to the excess (without interest) of the

3 Closing Preferred Unit Redemption Amount over the Closing Preferred Unit Payment; and *thereafter, to the holders of Common Units as of the Effective Time, on a pro rata basis. The Merger Agreement was approved by the Company's Board of Managers on March 23, 2011 and by the Boards of Directors of Mood Media and Merger Sub. In addition, the Merger has been approved by the requisite holders of Common Units and Preferred Units and no other limited liability company approvals are required to complete the Merger, but certain other conditions more fully described in the Merger Agreement must be satisfied prior to such completion. We currently expect that the Merger will be completed in the second quarter of Certain provisions of the LLC Agreement were also amended in connection with the approval of the Merger. Notice of Exercise of "Drag-Along" Rights under the Compan's LLC Agreement Each of you, when you acquired Units of the Company, became a party to the LLC Agreement of the Company. A copy of Section 11.5 of the LLC Agreement (as amended as referred to above) is attached hereto as Annex B. As you will note, Section 11.5 includes the following provisions: (a) "If at any time... the Board approves the merger or consolidation of the Company in which the members will receive cash or securities of any other Person for their Units, (each, a "Drag Sale") in each case to or with one or more related Persons (the "Purchaser") other than another member or an Affiliate of a Dragging Member, the Board...(the "Dragging Members") may, at their option, require each other Member (the "Dragged Members ") to sell all of the Units held by such Dragged Members concurrently with the consummation of such Drag Sale'. Notwithstanding the foregoing, in no event will a holder of Series A Preferred Units be obligated to become a Dragged Member pursuant to any transaction unless the Redemption Price is paid in full in cash upon the consummation of such transaction; provided, however, that this limitation shall not apply to a transaction consummated pursuant to that certain Agreement and Plan of Merger, in substantially the form attached hereto (the "Merger Agreement") and on the terms set forth therein, including (a) the payment of the Closing Preferred Unit Payment (as defined in the Merger Agreement) in cash upon the consummation of such transaction, and (b) provision for payment to the holders of Series A Preferred Units of amounts released to or for the benefit of the Unitholders (as defined in the Merger Agreement) from the Escrow Account (as defined in the Merger Agreement) and any Performance Payments (as defined in the Merger Agreement), up to the excess of the Closing Preferred Unit Redemption Amount (as defined in the Merger Agreement) over the Closing Preferred Unit Payment, on a priority basis over the holders of the Common Units."

4 (b) "At the closing of a Drag Sale, each Dragged Member shall deliver to such Purchaser all documents and instruments as may be reasonably requested by such Purchaser in connection with such Drag Sale, against payment of the appropriate purchase price [and]... [iln the event that any such Drag Sale is structured as a merger, consolidation or similar business combination, each Member agrees to vote in favor of the transaction and take all action to waive any dissenter, appraisal or other similar rights.." (d) "Upon consummation of a Drag Sale, if a Dragged Member has not delivered any documents and instruments as contemplated [above], such Dragged Member shall no longer be considered a holder of Units in the Company and such Dragged Member's sole rights with respect to such Units shall be to receive the consideration receivable in connection with such Drag Sale upon delivery of the appropriate documents and instruments." The Board of Managers of the Company hereby notifies you that it is exercising its dragalong right pursuant to Section 11.5 of the LLC Agreement in respect of the Merger and therefore you are required under Section 11.5 of the LLC Agreement to: 1. consent to and approve the Merger by executing and delivering, not later than April 21, 2011, the written consent in the form included as Annex C of this Notice; and 2. if you continue to hold Units as of the Effective Time of the Merger, execute and deliver the Letter of Transmittal in the form included as Annex D of this Notice. Please note that failure to execute and deliver the attached Member Consent and, if you continue to hold Units as of the Effective Time, the Letter of Transmittal will constitute a breach by you of the LLC Agreement and the Company reserves its right to pursue appropriate remedies against you in the event of such a breach. [Remainder of Page Intentionally Left Blank]

5 This notice was first mailed to holders of Units on March 31, By Order of the Board of Managers of the Company Name: Steven K. Richards Title: Chief Executive Officer

6 Annex A Agreement and Plan of Merger

7 Annex B Section 11.5 of the Company's LLC Agreement (a) If at any time (i) the Silver Point Members hold at least 40% of the outstanding Common Units and the Silver Point Members decide to sell all of their Units, (ii) the Board approves a sale of all of the Units, or (iii) the Board approves the merger or consolidation of the Company in which the members will receive cash or securities of any other Person for their Units, (each, a "Drag Sale") in each case to or with one or more related Persons (the "Purchaser") other than another member or an Affiliate of a Dragging Member, the Board, or the Members selling such interests, as applicable (the "Dragging Members") may, at their option, require each other Member (the "Dragged Members") to sell all of the Units held by such Dragged Members concurrently with the consummation of such Drag Sale. Notwithstanding the foregoing, in no event will a holder of Series A Preferred Units be obligated to become a Dragged Member pursuant to any transaction unless the Redemption Price is paid in full in cash upon the consummation of such transaction; provided, however, that this limitation shall not apply to a transaction consummated pursuant to that certain Agreement and Plan of Merger, in substantially the form attached hereto (the "Merger Agreement") and on the terms set forth therein, including (a) the payment of the Closing Preferred Unit Payment (as defined in the Merger Agreement) in cash upon the consummation of such transaction, and (b) provision for payment to the holders of Series A Preferred Units of amounts released to or for the benefit of the Unitholders (as defined in the Merger Agreement) from the Escrow Account (as defined in the Merger Agreement) and any Performance Payments (as defined in the Merger Agreement), up to the excess of the Closing Preferred Unit Redemption Amount (as defined in the Merger Agreement) over the Closing Preferred Unit Payment, on a priority basis over the holders of the Common Unit. (b) The Dragging Members shall give each Dragged Member, not less than fifteen (15) days prior to the date of the proposed sale, a notice summarizing the economic terms of such Drag Sale, including the purchase price, closing date and the identity of the Purchaser. The Dragged Member sale shall be made on the same date, at a price equal to a proportionate share of the aggregate purchase price paid in such Drag Sale (which proportionate share shall be based upon the amount that would be distributable to such Dragged Member relative to the amount that would be distributable to all other Dragging and Dragged Members had an amount equal to the equity value of the Company implied by such purchase price been distributed pursuant to Section 7.1 (as determined by the Board)) and on terms and conditions at least as favorable to such Dragged Member as the terms and conditions as the sale by the Dragging Members (and if a unique implied purchase price is not mathematically determinable, using the highest possible implied purchase price). In connection with any Drag Sale, each Dragged Member shall take such actions as may be reasonably required by the Dragging Members and shall otherwise cooperate in good faith with the Dragging Members. At the closing of a Drag Sale, each Dragged Member shall deliver to such Purchaser all documents and instruments as may be reasonably requested by such Purchaser in connection with such Drag Sale, against payment of the appropriate purchase price; provided, however, that the Dragged Members shall not be required to make any representations and warranties except those relating to title of their Units, due

8 authorization of the Drag Sale and the absence of conflicts, which such representations and warranties shall be made severally and not jointly and that the liability of the Members thereunder shall be borne by each of them on a pro rata basis determined according to the aggregate proceeds received by each of them in the Drag Sale and no Dragged Members shall be required to agree to, or be deemed to have agreed to, any non-financial terms, covenants and agreements such as non-competition and non-solicitation agreements without its express written consent. In the event that any such Drag Sale is structured as a merger, consolidation or similar business combination, each Member agrees to vote in favor of the transaction and take all action to waive any dissenter, appraisal or other similar rights; provided, however, that notwithstanding the foregoing, each Dragged Member may be liable for breaches of representations and warranties about the Company or the Subsidiaries and their operations so long as such liability is not in excess of such Dragged Member's pro rata percentage interest in the aggregate proceeds of the Drag Sale. (c) In the event the consideration to be paid in exchange for Units in a Drag Sale includes any securities, and the receipt thereof by a Dragged Member would require under applicable law the registration or qualification of such securities or of any Person as a broker or dealer or agent with respect to such securities where such registration or qualification is not otherwise required under the terms of the Drag Sale, then such Dragged Member shall not have the right to sell Units in such Drag Sale. In such event, the Dragging Members shall have the Units which would have otherwise been sold by such Dragged Member pursuant to the Drag Sale, an amount in cash equal to the Fair Market Value per Unit as of the date such securities would have been issued in exchange for such Units. (d) Upon consumnmation of a Drag Sale, if a Dragged Member has not delivered any documents and instruments as contemplated by clause (b), such Dragged Member shall no longer be considered a holder of Units in the Company and such Dragged Member's sole rights with respect to such Units shall be to receive the consideration receivable in connection with such Drag Sale upon delivery of the appropriate documents and instruments.

9 Annex C Member Consent MUZAK HOLDINGS LLC MEMBER CONSENT The undersigned, being a holder of Units of Muzak Holdings LLC, a Delaware limited liability company (the "Compgny"), does hereby irrevocably: (a) (b) consent to and approve the agreement and plan of merger (the "Merger Agreement"), dated as of March 24, 2011, among Mood Media Corporation, a corporation existing under the laws of Canada, Mood US Acquisition, LLC, a Delaware limited liability company, the Company, Silver Point Capital Fund, L.P., a Delaware limited partnership, SP Muzak Inc., a Delaware corporation, and Silver Point Capital, L.P., a Delaware limited partnership, as described in the Notice to Holders of Units of the Company dated March 31, 2011 (in which the Merger Agreement is included as Annex A and the merger contemplated thereby); and constitute, appoint, authorize, direct and empower, effective as of the Closing, Silver Point Capital, L.P. as the "Unitholder Representative" on the terms set forth in Section of the Merger Agreement. IN WITNESS WHEREOF, the undersigned has executed this consent as of the date set forth below. NAME OF HOLDER: By: Name: Date: Address: Units held: Common Units: Preferred Units:

10 NOTE: Please execute this consent by signing in the space provided and returning the signed consent to Ginger Covey Hohi no later than April 21, 2011, both by to: ginger-coveyhohl~muzak.com and by mail of the original to: Muzak Holdings LLC c/o Muzak LLC 3318 Lakemont Boulevard Fort Mill, South Carolina 29715

11 Annex D Letter of Transmittal