EX-99.(D)(5) 12 dex99d5.htm ROLLOVER AGREEMENT Exhibit (d)(5) EXECUTION VERSION ROLLOVER AGREEMENT
Exhibit (d)(5)
EXECUTION VERSION
This Rollover Agreement (this “Agreement”) dated as of January 9, 2011, by and between Icon Acquisition Holdings, L.P., a Delaware limited partnership (“Purchaser”) and Xxxxx Xxxxxxxx (the “Investor”), a stockholder of Playboy Enterprises, Inc., a Delaware corporation (the “Company”). Capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement (as defined below).
WHEREAS, soon after the execution of this Agreement, Purchaser shall cause Icon Merger Sub, Inc., a Delaware corporation and wholly-owned subsidiary of Purchaser (“Sub”), to commence (within the meaning of Rule 14d-2 of the Securities Exchange Act, as amended) a tender offer to acquire all of the Common Stock of the Company at an offer price of $6.15 per share, net to the seller in cash (the “Offer Price”), pursuant to the terms and conditions set forth in an Offer to Purchase under cover of the Schedule TO and in a related Letter of Transmittal to be filed with the Securities and Exchange Commission (which, together with any amendments or supplements thereto, collectively constitute the “Offer”);
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ARTICLE 1
Section 1.1 Contributed Common Stock. Upon the terms and subject to the conditions of this Agreement, the Investor hereby agrees to transfer, contribute and deliver to Purchaser as of the Contribution Closing (as defined below) all of the Rollover Shares. For the avoidance of doubt, Rollover Shares shall not include shares of Common Stock subject to Investor Stock Awards or Investor Options. In consideration for the Rollover Shares, Purchaser hereby agrees to issue to the Investor, as of the Contribution Closing, the number of units of Purchaser Interests equal to the Rollover Shares Value divided by the value of one limited partnership unit, which the parties hereby agree shall be the same price per limited partnership unit paid by RT-ICON Holdings LLC, a Delaware limited liability company (“RT-ICON”), for its purchase of identical limited partnership units in connection with the Merger (the “Unit Purchase Price”). For purposes of this section the “Rollover Shares Value” shall equal the Offer Price multiplied by the number of Rollover Shares.
Section 1.2 Investor Stock Awards and Investor Options. Unless otherwise agreed in writing by the Company, RT-ICON and Investor, at the Effective Time, Investor Stock Awards shall become fully vested with respect to the maximum number of shares subject thereto and shall be cancelled and converted into the right to receive the Merger Consideration, without interest, in the same manner as other shares of Common Stock, and Investor’s Company Options will be cancelled and converted into the right to receive the Option Consideration, in each case subject to applicable Tax withholding. Investor agrees not to exercise any Company Stock Options during the term of this Agreement. At the Effective Time, Investor will pay all of the Merger Consideration and Option Consideration received by Investor (that is, net of taxes determined in accordance with the Employment Agreement) (the “Net Cash Proceeds”) to Purchaser in exchange for limited partnership units identical to all of the limited partnership units purchased by RT-ICON in connection with the Merger at the Unit Purchase Price.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
(a) Purchaser is a limited partnership, validly existing and in good standing under the laws of the state of Delaware and has all requisite power and authority to execute and deliver this Agreement and to perform its obligations hereunder. The execution and delivery by Purchaser of this Agreement, the performance by Purchaser of its obligations hereunder, and the consummation by Purchaser of the transactions contemplated hereby have been duly authorized. This Agreement has been duly executed and delivered by Purchaser and, assuming the due execution and delivery thereof by the Investor, constitutes a legal, valid and binding obligation of Purchaser, enforceable against Purchaser in accordance with its terms, except as enforceability may be limited by the Enforceability Exceptions.
(b) The execution, delivery and performance by Purchaser of this Agreement and the consummation by Purchaser of the transactions contemplated hereby do not and will not, with or without the giving of notice or the passage of time or both, (i) violate the provisions of any Law or Order applicable to Purchaser or its properties or assets, (ii) require authorization, approval, consent or other action by any Person under, result in a breach of any of the terms of, or constitute a default under, or give rise to any right of termination, cancellation or acceleration or to a loss of any benefit to which Purchaser is entitled under any provision of any agreement or other instrument to which Purchaser is a party or by which Purchaser is bound, or (ii) violate the provisions of the governing documents of Purchaser.
Section 2.2 Representations and Warranties of the Investor. The Investor represents and warrants to Purchaser that:
(a) Investor has full legal capacity, right and authority to execute and deliver this Agreement and to perform his obligations hereunder. This Agreement has been duly executed and delivered by the Investor, and assuming the due execution and delivery thereof by Purchaser, constitutes a legal, valid and binding obligation of the Investor, enforceable against the Investor in accordance with its terms, except as enforceability may be limited by the Enforceability Exceptions.
(b) The execution, delivery and performance of this Agreement by the Investor and the consummation by the Investor of the transactions contemplated hereby do not and will not, with or without the giving of notice or the passage of time or both, (i) violate the
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provisions of any Law or Order applicable to the Investor, (ii) require authorization, approval, consent or other action by any Person under, result in a breach of any of the terms of, or constitute a default under, or give rise to any right of termination, cancellation or acceleration or to a loss of any benefit to which the Investor is entitled under any provision of any agreement or other instrument to which the Investor is a party or by which the Investor is bound, or (iv) result in the imposition of any Lien on any of the Rollover Shares.
(c) As of the date hereof, the Investor is the beneficial owner of the Rollover Shares, Investor Stock Awards and Investor Options, free and clear of any Liens and any other limitation or restriction (including any restriction on the right to vote or otherwise dispose of any such Rollover Shares) other than those created by this Agreement and those set forth in the applicable Employee Benefit Plans relating to the Investor Stock Awards and Investor Options.
(d) The spouse of the Investor has executed and delivered to Purchaser the requisite spousal consent in a form satisfactory to the Company and Purchaser.
ARTICLE III
Section 3.1 No Proxies or Encumbrances. Except pursuant to the terms of this Agreement or the Merger Agreement, and, except for settlement of Investor Stock Awards and Investor Options, the Investor will not, directly or indirectly, (a) grant any proxies or enter into any voting trust or other agreement or arrangement with respect to the voting of any of the Rollover Shares, (b) tender any of the Rollover Shares pursuant to the Offer or (c) otherwise sell, assign, transfer, encumber or dispose of, or enter into any contract, option or other arrangement or understanding with respect to the direct or indirect sale, assignment, transfer, encumbrance or other disposition of, any of the Rollover Shares, Investor Stock Awards or Investor Options unless such action is effective upon a Change in Recommendation resulting from a Superior Proposal in compliance with Section 6.3(f) of the Merger Agreement.
Section 3.2 Further Assurances. Each party hereto shall use its commercially reasonable efforts to take, or cause to be taken, all action and to do, or cause to be done, all things necessary, proper or advisable to satisfy its obligations hereunder.
ARTICLE IV
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All notices, consents and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by hand delivery, by prepaid overnight courier (providing written proof of delivery), by confirmed facsimile transmission or by certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:
(a) | if to Purchaser to: |
Icon Acquisition Holdings LLC, General Partner
c/x Xxxxx Traverse Management, LLC
0000 Xxxxxx xx Xxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxx Xxxx
with copies (which shall not constitute notice) to:
Xxxxxxxx Xxxxxx Xxxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxx Xxxxxx
Xxxxx-Xxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Esq.
Xxxx X. Xxxxxxx, Esq.
(b) | if to the Investor to: |
Xxxxx Xxxxxxxx
000 Xxxxx Xxxx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
with copies (which shall not constitute notice) to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx
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the other parties, and any such assignment without such prior written consent shall be null and void; provided, that notwithstanding the foregoing, after consummation of the transactions contemplated as of the Contribution Closing, Purchaser may assign all but not less than all of its rights and obligations hereunder to any Affiliate without the prior written consent of the other parties hereto. This Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and permitted assigns.
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Section 4.12 Governing Law; Consent to Jurisdiction. This Agreement shall be governed by, and construed and interpreted in accordance with, the Laws of the State of Delaware, without giving effect to any Law that would cause the Laws of any jurisdiction other than the State of Delaware to be applied. The parties hereto hereby (a) submit to the exclusive jurisdiction of any state or federal court in Delaware for the purpose of any action arising out of or relating to this letter agreement brought by any party hereto and (b) irrevocably waive, in any such action, any claim of improper venue or any claim that such courts are an inconvenient forum.
SIGNATURE PAGES FOLLOW
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ICON ACQUISITION HOLDINGS, LP | ||
By: | /s/ Xxxxxxxx X. Xxxx III | |
Name: | Xxxxxxxx X. Xxxx III | |
Title: | Vice President and CFO |
[Signature Page to Rollover Agreement – Flanders]
INVESTOR: |
/s/ Xxxxx Xxxxxxxx |
Xxxxx Xxxxxxxx |
[Signature Page to Rollover Agreement – Flanders]