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Hearing Date: May 7, 2020 at 10:00 a.m. (prevailing Eastern Time) Objection Deadline: April 30, 2020 at 4:00 p.m. (prevailing Eastern Time)
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Steven J. Reisman, Esq. Jerry L. Hall, Esq. (admitted pro hac vice) Cindi M. Giglio, Esq.
Peter A. Siddiqui, Esq. (admitted pro hac vice)
KATTEN MUCHIN ROSENMAN LLP 575 Madison Avenue New York, NY 10022
KATTEN MUCHIN ROSENMAN LLP 525 W. Monroe Street Chicago, IL 60661
Telephone: (212) 940-8800 Telephone: (312) 902-5455 Facsimile: (212) 940-8876 Facsimile: (312) 902-1061 sreisman@katten.com jerry.hall@katten.com cindi.giglio@katten.com
peter.siddiqui@katten.com
Counsel to Debtors and Debtors-in-Possession
UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK
) In re: ) Chapter 11 ) SIZMEK INC., et al.,1 ) Case No. 19-10971 (SMB) ) Debtors. ) (Jointly Administered) )
NOTICE OF HEARING ON DEBTORS’ MOTION FOR
ENTRY OF ORDER AUTHORIZING THE COMPROMISE OF CERTAIN CLAIMS WITH AMAZON.COM, INC. AND GRANTING RELATED RELIEF
PLEASE TAKE NOTICE that on April 14, 2020, Debtors filed the Debtors’ Motion for
Entry of Order Authorizing the Compromise of Certain Claims with Amazon.com, Inc. and
Granting Related Relief (the “Motion”).
PLEASE TAKE FURTHER NOTICE, that a hearing (the “Hearing”) on the Motion
will be held before the Honorable Stuart M. Bernstein, United States Bankruptcy Judge, in
1 Debtors in these Chapter 11 Cases, along with the last four digits of each Debtor’s federal tax identification number, include: Sizmek Inc. (4624); Sizmek DSP, Inc. (2319); Point Roll, Inc. (3173); Sizmek Technologies, Inc. (6402); Wireless Artist LLC (0302); WirelessDeveloper, Inc. (9686); X Plus One Solutions, Inc. (8106); X Plus Two Solutions, LLC (4914); and Solomon Acquisition Corp (4229). The location of Debtors’ service address for purposes of these Chapter 11 Cases is: Realization Services, Inc. Attn: Melanie Browne, P.O. Box 189, Bedford Hills, NY 10507.
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Courtroom 723, United States Bankruptcy Court for the Southern District of New York, One
Bowling Green, New York, NY 10004-1408 (the “Bankruptcy Court”) on May 7, 2020 at 10:00
a.m. (prevailing Eastern Time).
PLEASE TAKE FURTHER NOTICE that any responses or objections (each,
an “Objection”) to the Motion and the relief requested therein shall be in writing, shall conform
to the Federal Rules of Bankruptcy Procedure, the Local Bankruptcy Rules for the Southern
District of New York, the Order Establishing Certain Notice, Case Management, and
Administrative Procedures (the “Case Management Order”) [Docket No. 103], shall set forth the
basis for the Objection and the specific grounds therefore, and shall be filed with the Court
electronically in accordance with General Order M-399 by registered users of the Court’s case
filing system (the User’s Manual for the Electronic Case Filing System can be found at
http://www.nysb.uscourts.gov, the official website for the Court), with a hard copy delivered
directly to chambers pursuant to Local Bankruptcy Rule 9070-1 and served so as to be actually
received no later than April 30, 2020, at 4:00 p.m. (prevailing Eastern Time) (the “Objection
Deadline”) upon:
a. Counsel to Debtors, Katten Muchin Rosenman LLP, 575 Madison Avenue, New
York, NY 10022-2585, Attn.: Steven J. Reisman, Esq. and Jerry L. Hall, Esq., and
Katten Muchin Rosenman LLP, 525 West Monroe St., Chicago, IL 60661-3693,
Attn.: Peter A. Siddiqui, Esq.;
b. The Office of The United States Trustee, U.S. Federal Office Building, 201 Varick
Street, Suite 1006, New York, New York 10014, Attn.: Richard Morrissey, Esq.;
c. Counsel to the Official Committee of Unsecured Creditors, Cooley LLP, 55 Hudson
Yards, New York, NY 10001, Attn: Michael Klein, Esq.; and Lauren Reichardt, Esq.
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d. Any other parties required to be served pursuant to the Case Management Order.
PLEASE TAKE FURTHER NOTICE that if no Objection to the Motion is received by
the Objection Deadline, the Motion shall be deemed unopposed, and the Bankruptcy Court may
enter an order granting the Motion without a hearing.
PLEASE TAKE FURTHER NOTICE that the Hearing may be continued or adjourned
thereafter from time to time without further notice other than an announcement of the adjourned
date or dates at the Hearing. Debtors will file an agenda before the Hearing, which may modify
or supplement the Motion to be heard at the Hearing.
PLEASE TAKE FURTHER NOTICE that a copy of the Motion may be obtained free
of charge by visiting the website of Stretto at https://cases.stretto.com/sizmek. You may also
obtain copies of any pleadings by visiting the Court’s website at http://www.nysb.uscourts.gov in
accordance with the procedures and fees set forth therein.
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Dated: April 14, 2020 /s/ Steven J. Reisman New York, New York KATTEN MUCHIN ROSENMAN LLP
Steven J. Reisman, Esq. Cindi M. Giglio, Esq. Jerry L. Hall, Esq. (admitted pro hac vice) 575 Madison Avenue New York, NY 10022
Telephone: (212) 940-8800
Facsimile: (212) 940-8876 Email: sreisman@katten.com
cindi.giglio@katten.com jerry.hall@katten.com
-and- Peter A. Siddiqui, Esq. (admitted pro hac vice) KATTEN MUCHIN ROSENMAN LLP 525 W. Monroe Street Chicago, IL 60661 Telephone: (312) 902-5455 Email: peter.siddiqui@katten.com
Counsel to Debtors and Debtors-in-Possession
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Hearing Date: May 7, 2020 at 10:00 a.m. (prevailing Eastern Time) Objection Deadline: April 30, 2020 at 4:00 p.m. (prevailing Eastern Time)
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Steven J. Reisman, Esq. Jerry L. Hall, Esq. (admitted pro hac vice)
Peter A. Siddiqui, Esq. (admitted pro hac vice) KATTEN MUCHIN ROSENMAN LLP
Cindi M. Giglio, Esq. KATTEN MUCHIN ROSENMAN LLP
525 W. Monroe Street Chicago, IL 60661
575 Madison Avenue Telephone: (312) 902-5455 New York, NY 10022 Facsimile: (312) 902-1061 Telephone: (212) 940-8800 peter.siddiqui@katten.com Facsimile: (212) 940-8876 sreisman@katten.com jerry.hall@katten.com cindi.giglio@katten.com
Counsel to Debtors and Debtors-in-Possession
UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK
) In re: ) Chapter 11 ) SIZMEK INC., et al.,2 ) Case No. 19-10971 (SMB) ) Debtors. ) (Jointly Administered) )
DEBTORS’ MOTION FOR ENTRY OF ORDER AUTHORIZING THE COMPROMISE OF CERTAIN CLAIMS
WITH AMAZON.COM, INC. AND GRANTING RELATED RELIEF
Sizmek Inc. and certain of its affiliates, as debtors and debtors-in-possession in the
above-captioned cases (collectively, the “Debtors”), hereby move (the “Motion”) this Court for
entry of an order, substantially in the form attached hereto as Exhibit A (the “Proposed Order”),
(i) approving the compromise of certain disputes among Debtor Sizmek Technologies, Inc.
(“Parent”), certain of Debtors’ non-debtor affiliates, and Amazon.com, Inc. (“Amazon”), as set
forth in the Settlement and Release of Claims attached as Exhibit 1 to the Proposed Order (the
2Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification number, include: Sizmek Inc. (4624); Sizmek DSP, Inc. (2319); Point Roll, Inc. (3173); Sizmek Technologies, Inc. (6402); Wireless Artist LLC (0302); Wireless Developer, Inc. (9686); X Plus One Solutions, Inc. (8106); X Plus Two Solutions, LLC (4914); and Solomon Acquisition Corp. (4229). The location of Debtors’ service address for purposes of these chapter 11 cases is: Realization Services, Inc. Attn: Melanie Browne, P.O. Box 189, Bedford Hills, NY 10507
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“Settlement Agreement”), and (ii) granting related relief. In support of this Motion, Debtors
represent as follows:
JURISDICTION & VENUE
1. The United States Bankruptcy Court for the Southern District of New York (the
“Court”) has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334 and the
Amended Standing Order of Reference from the United States District Court for the Southern
District of New York, dated February 1, 2012. Debtors confirm their consent, pursuant
Bankruptcy Rule 7008 to the entry of a final order by the Court in connection with this Motion to
the extent that it is later determined that the Court, absent consent of the parties, cannot enter
final orders or judgments in connection herewith consistent with Article III of the United States
Constitution.
2. Venue is proper pursuant to 28 U.S.C. §§ 1408 and 1409.
3. The statutory basis for the relief requested herein is Rule 9019(a) of the Federal
Rules of Bankruptcy Procedure (the “Bankruptcy Rules”).
RELEVANT BACKGROUND
4. On June 20, 2019, the Court entered the Order Authorizing and Approving
Private Sale of Debtor Seller’s Portion of the AdServer Business Free and Clear of All Liens,
Claims, Encumbrances, and Other Interests, and Granting Related Relief [Dkt. No. 269] (the
“Sale Order”).
5. Pursuant to the Sale Order, the Court approved that certain Asset Purchase
Agreement dated May 31, 2019 (the “APA”) among Amazon, as purchaser, and Parent, and
Parent, Sizmek Technologies Ltd., an Israeli company (“Sizmek Israel”), and Sizmek
Technologies Ltd., a company incorporated in England and Wales (“Sizmek UK” and
collectively with Parent and Sizmek Israel, the “Sellers”), as sellers, pursuant to which the
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Sellers sold to Amazon, and Amazon purchased from the Sellers, the Sellers’ AdServer business
(the “Sale”). In connection with the APA, Amazon and the Sellers also entered into that certain
Transition Services Agreement dated as of June 21, 2019 (the “TSA”). The Sale closed on June
21, 2019 (the “Closing”).
6. The APA requires the Sellers to pay to Amazon, within ten business days of
receipt thereof, any payments from any third party relating to or arising from Amazon’s
ownership of the assets purchased under the APA or its operation of the AdServer business after
the Closing, including any payments with respect to Purchaser Accounts Receivable (as defined
in the APA).
7. Following the Closing, Amazon alleged that the Sellers received and failed to turn
over proceeds of Purchaser Accounts Receivable in excess of $3 million in violation of the APA.
On January 5, 2020, Amazon filed a limited objection to the Debtors’ Motion for the Entry of
Interim and Final Orders (I) Authorizing the Debtors to Use Cash Collateral Pursuant to 11
U.S.C. § 363; and (II) Granting Adequate Protection Pursuant to 11 U.S.C. § 361, 362, 363 and
507 [Dkt. No. 580] (the “Cash Collateral Motion”) based on those grounds.
8. At the hearing regarding the Cash Collateral Motion on January 7, 2020, the
Sellers and Amazon reached agreement whereby, among other things, the Sellers would transfer
certain funds to Amazon in satisfaction of their obligations to turn over the proceeds of
Purchaser Accounts Receivable and reconcile amounts owing under the TSA (the “Cash
Collateral Agreement”).
9. On January 9, 2020, the Court entered the Final Order (I) Authorizing the
Debtors to Use Cash Collateral Pursuant to 11.U.S.C. § 363, (II) Granting Adequate Protection
Pursuant to 11 U.S.C. §§ 361, 362, 363, and 507, and (III) Granting Related Relief [Dkt. No.
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588] (the “Final Cash Collateral Order”), granting the Cash Collateral Motion on a final basis
and incorporating the terms of the Cash Collateral Agreement. (See Final Cash Collateral Order
at ¶ 12.)
10. Following the entry of, and in compliance with, the Final Cash Collateral Order,
Amazon and the Sellers have exchanged reports relating to the collection of accounts receivable,
and have worked in good faith to reconcile the amounts of outstanding Purchaser Accounts
Receivable, the amounts of Sellers Accounts Receivable (as defined in the APA) received by
Amazon, the amounts due from Amazon and its affiliates to Debtors and their affiliates,
including under the TSA, and amounts due from Debtors and their affiliates to Amazon and its
affiliates, including under the TSA.
11. The Parties have participated in settlement discussions regarding their disputes
and have agreed in good faith to settle, release, and compromise all their potential claims and
disputes related to the APA and the TSA (the “Settlement”), as set forth in the Settlement
Agreement, subject to the Court’s approval.
12. As set forth in further detail in the Settlement Agreement, Amazon and the Sellers
have agreed, among other things: (i) that the Sellers will continue to remit funds to Amazon as
required by the Final Cash Collateral Order, up to the amount of the Outstanding Purchase
Accounts Receivable (as defined in the Final Cash Collateral Order); (ii) that Amazon’s
obligation under the APA to remit to the Sellers collections in respect of Sellers Accounts
Receivable shall remain in full force and effect; (iii) to terminate all Forward TSA Obligations
(as defined in the Settlement Agreement); (iv) that Amazon will continue to perform its reverse
WD1, WD2, and WD-3 TSA services to the Sellers pursuant to the TSA in accordance with the
terms thereof, with the Sellers remitting payment to Amazon for such services in accordance
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with the TSA; and (v) that no other payments between Amazon, the Sellers, and each of their
affiliates will be made in connection with the APA, the TSA, or the other Transaction
Documents (as defined in the APA), other than as provided in the Settlement Agreement.
13. Additionally, as set forth in further detail in the Settlement Agreement, Amazon
and the Sellers have agreed to release each other and their respective affiliates from all claims for
relief, damages, demands, suits, actions, injuries, losses, costs, expenses and/or causes of action
arising out of or relating to the APA, the TSA, the above-captioned bankruptcy cases, and the
maters addressed in the Amazon Reconciliation (as defined in the Settlement Agreement) prior
to the date of the Settlement Agreement.
14. Debtors have determined that the Settlement is in the best interest of Debtors and
their estates and accordingly request that the Court approve the Settlement Agreement and the
terms thereof.
15. Debtors have consulted with the Official Committee of Unsecured Creditors (the
“Committee”) and Cerberus Business Finance, LLC (“Cerberus”), Debtors’ pre-petition secured
lender, and have been advised that they have no objection to the relief requested herein.
RELIEF REQUESTED
16. By this Motion and pursuant to Bankruptcy Rule 9019, Debtors request the entry
of an Order, substantially in the form of the Proposed Order, approving the Settlement as set
forth in the Settlement Agreement.
BASIS FOR RELIEF REQUESTED
17. Bankruptcy Rule 9019(a) provides that “[o]n motion by the trustee and after
notice and a hearing, the court may approve a compromise or settlement.” A bankruptcy court
must determine whether a proposed settlement “is in the best interest of an estate[.]” See Nellis
v. Shugrue, 165 B.R. 115, 122 (S.D.N.Y. 1994). When evaluating a proposed settlement, a
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bankruptcy court need not decide the issues of law and facts raised therein, but rather should
“canvass the issues and see whether the settlement falls below the lowest point in the range of
reasonableness.” Finkelstein v. W.T. Grant Co. (In re W.T. Grant Co.), 699 F.2d 599, 608 (2d
Cir. 1983) (quoting Newman v. Stein, 464 F.2d 689, 693 (2d Cir. 1972)) (internal quotations and
brackets omitted). Importantly, a bankruptcy court’s discretion should be exercised “in light of
the general public policy favoring settlements.” In re Dewey & LeBoeuf LLP, 478 B.R. 627, 641
(S.D.N.Y. 2012).
18. In deciding whether a particular settlement is fair and equitable, courts consider:
(a) the balance between the litigation’s possibility of success and the settlement’s benefits; (b)
the likelihood of complex and protracted litigation, with its attendant expense, inconvenience,
and delay; (c) the paramount interests of creditors; (d) whether parties in interest support the
settlement; (e) the competency and experience of counsel supporting, and the experience and
knowledge of the bankruptcy court judge reviewing, the settlement; (f) the nature and breadth of
releases to be obtained by officers and directors; and (g) the extent to which the settlement is the
product of arm’s length bargaining. See Motorola, Inc. v. Official Comm. of Unsecured
Creditors (In re Iridium Operating LLC), 478 F.3d 452, 462 (2d Cir. 2007) (internal quotations
omitted).
19. Debtors submit that the Settlement Agreement represents a fair and equitable
compromise, falls well within the range of reasonableness and satisfies each of the foregoing
factors. Specifically, though the disputes resolved under the Settlement Agreement could have
been resolved through litigation, such litigation would likely require a significant investment of
resources, while the Settlement Agreement resolves the disputes without any adversarial process,
saving the estates from bearing the costs of litigation, as well as the additional reconciliations
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contemplated by the APA and TSA, and thus provides value. Thus, the Settlement Agreement is
beneficial to Debtors’ creditors and their stakeholders. Additionally, the Settlement Agreement
is supported by the Committee and Cerberus and was negotiated in good faith by the parties
without collusion and at arm’s length.
20. Debtors have determined, in their sound business judgment, that the Settlement is
fair, reasonable, and beneficial to their estates and their stakeholders. Accordingly, Debtors
respectfully request that the Court approve the Settlement Agreement pursuant to Bankruptcy
Rule 9019.
REQUEST FOR BANKRUPTCY RULE 6004 WAIVER
21. Debtors submit that waiver of the stay imposed by Bankruptcy Rule 6004(h) is
necessary to preserve the value of their estates. Accordingly, Debtors respectfully request that
the Court waive the 14-day stay imposed by Rule 6004(h) as the nature of the relief sought
herein warrants immediate relief.
NOTICE
22. In accordance with paragraph 19(d) of the Order Establishing Certain Notice,
Case Management, and Administrative Procedures [Dkt. No. 103] (the “Case Management
Order”), entered by this Court on April 23, 2019, Debtors will serve notice of this Motion on the
Master Service List (as defined in the Case Management Order), which includes all parties that
may be directly affected by the Settlement Agreement, as well as the parties to the Settlement
Agreement. In light of the nature of the relief requested, no other or further notice need to be
given.
NO PRIOR REQUEST
23. No previous application for the relief requested herein has been made by Debtors
to this or any other court.
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WHEREFORE, Debtors respectfully request that the Court enter an Order, substantially
in the form of the Proposed Order, granting the relief requested herein and such other and further
relief as is just and proper.
Dated: April 14, 2020 /s/ Steven J. Reisman New York, New York KATTEN MUCHIN ROSENMAN LLP
Steven J. Reisman, Esq. Jerry L. Hall, Esq. (admitted pro hac vice) Cindi M. Giglio, Esq. 575 Madison Avenue
New York, NY 10022
Telephone: (212) 940-8800 Facsimile: (212) 940-8876 Email: sreisman@katten.com jerry.hall@katten.com
cindi.giglio@katten.com -and- KATTEN MUCHIN ROSENMAN LLP Peter A. Siddiqui, Esq. (admitted pro hac vice) 525 W. Monroe Street Chicago, IL 60661 Telephone: (312) 902-5455 Email: peter.siddiqui@katten.com
Counsel to Debtors and Debtors-in-Possession
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Exhibit A
Proposed Order
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UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK
) In re: ) Chapter 11 ) SIZMEK INC., et al.,1 ) Case No. 19-10971 (SMB) ) Debtors. ) (Jointly Administered) )
ORDER GRANTING DEBTORS’ MOTION FOR ENTRY OF ORDER
AUTHORIZING THE COMPROMISE OF CERTAIN CLAIMS WITH AMAZON.COM, INC. AND GRANTING RELATED RELIEF
Upon consideration of the motion (the “Motion”)2 of the Debtors and debtors in
possession herein (collectively, the “Debtors”) for entry of an order authorizing the compromise
of certain claims with Amazon.com, Inc. (“Amazon”) and granting related relief; and this Court
having jurisdiction to consider the Motion and the relief requested therein pursuant to 28 U.S.C.
§§ 157 and 1334; and consideration of the Motion and the relief requested therein being a core
proceeding pursuant to 28 U.S.C. § 157(b); and venue being proper before this Court pursuant to
28 U.S.C.§§ 1408 and 1409; and due and sufficient notice of the Motion and opportunity for
objections having been provided; and it appearing that no other or further notice need be
provided; and the relief requested being a reasonable exercise of Debtors’ sound business
judgment consistent with their fiduciary duties and in the best interests of Debtors, their estates,
and their creditors; and this Court having determined that the legal and factual bases set forth in
1Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification number, include: Sizmek Inc. (4624); Sizmek DSP, Inc. (2319); Point Roll, Inc. (3173); Sizmek Technologies, Inc. (6402); Wireless Artist LLC (0302); Wireless Developer, Inc. (9686); X Plus One Solutions, Inc. (8106); X Plus Two Solutions, LLC (4914); and Solomon Acquisition Corp. (4229). The location of Debtors’ service address for purposes of these chapter 11 cases is: Realization Services, Inc. Attn: Melanie Browne, P.O. Box 189, Bedford Hills, NY 10507
2 Capitalized terms not defined herein shall have the meanings ascribed to them in the Motion.
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the Motion establish just cause for the relief granted herein; and after due deliberation and
sufficient cause appearing therefor it is hereby:
ORDERED, ADJUDGED, AND DECREED THAT:
1. The Motion is GRANTED as set forth herein.
2. Debtors are authorized to enter into the Settlement Agreement attached hereto as
Exhibit 1.
3. Debtors are authorized and empowered to take all actions necessary or
appropriate to implement the relief granted in this Order.
4. The terms and conditions of this Order shall be immediately effective and
enforceable upon its entry.
5. This Court shall retain jurisdiction with respect to all matters arising from or
related to the implementation or interpretation of this Order.
Dated: __________, 2020
New York, New York THE HONORABLE STUART M. BERNSTEIN UNITED STATES BANKRUPTCY JUDGE
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Exhibit 1 to Order
Settlement Agreement
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-9- SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS 502866461 v3
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IN WITNESS WHEREOF, the undersigned executed this Agreement as of the dates noted below, to be effective upon the entry of an order approving this Agreement by the Bankruptcy Court.
Sellers: Barry Kasoff as representative of Sizmek Technologies Ltd., an Israeli company. By:__________________________________ Dated:April 10, 2020 Barry L. Kasoff, CFO Barry Kasoff as representative of Sizmek Technologies, Inc., a Delaware corporation. By:__________________________________ Dated:April 10, 2020 Barry L. Kasoff, CFO George Pappachen as representative of Sizmek Technologies Ltd., a company incorporated in England and Wales. By:__________________________________ Dated:April 10, 2020 George Pappachen, Director Amazon: Paul Kotas as representative of Amazon.com, Inc., a Delaware corporation. By:__________________________________ Dated:April 10, 2020 Paul Kotas, SVP
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