EX-99.(D)(4) 11 dex99d4.htm CONTRIBUTION AGREEMENT Exhibit (d)(4) EXECUTION VERSION CONTRIBUTION AGREEMENT
Exhibit (d)(4)
EXECUTION VERSION
This Contribution Agreement (this “Agreement”) dated as of January 9, 2011, by and among Icon Acquisition Holdings, L.P., a Delaware limited partnership (“Purchaser”), The HMH Playboy Stock Trust (the “PS Trust”), and The Xxxx X. Xxxxxx 1991 Trust, dated May 21, 1991, as amended (the “1991 Trust,” and collectively with the PS Trust, the “Investors”). 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”);
WHEREAS, contemporaneously with the execution of this Agreement, Purchaser, GTD Acquisitions LLC, a Delaware limited liability company controlled by the Principal and RT-ICON Holdings LLC, a Delaware limited liability company (“RT-ICON”) are entering into that certain limited partnership agreement of Purchaser (the “LP Agreement”); and
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ARTICLE 1
Section 1.1 Contribution of Excluded Shares.
(a) Prior to the Contribution Closing, the PS Trust intends to transfer all of its Shares to the 1991 Trust. Should this occur, then without further agreement by the 1991 Trust or any other party hereto, the 1991 Trust will succeed to all rights, interests and obligations under this Agreement of the PS Trust.
(b) Upon the terms and subject to the conditions of this Agreement, each of the Investors hereby agrees to transfer, contribute and deliver to Purchaser as of the Contribution Closing (as defined below) the Excluded Shares. In consideration for the Excluded Shares and the performance by the Investors of the obligations under Section 1.2 below, Purchaser hereby agrees to issue to the Investors, as of the Contribution Closing, the number of units of Purchaser Interests equal to the Excluded Shares Value divided by the value of one limited partnership unit, which the parties hereby agree shall be ten dollars ($10.00) per unit. For purposes of this section the “Excluded Shares Value” shall equal the Offer Price multiplied by the number of Excluded Shares. The Purchaser Interests shall have the rights, preferences, allocations, privileges and restrictions set forth in the LP Agreement.
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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 Investors, 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 the 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 (iii) violate the provisions of the governing documents of Purchaser.
Section 2.2 Representations and Warranties of the Investors. Each Investor represents and warrants to Purchaser that:
(a) This Agreement and its execution, delivery and performance by the Investor has been duly authorized by all requisite action on behalf of the Investor and its trustees. 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 provisions of any Law or Order applicable to the Investor, (ii) violate the trust agreement of the Investor, (iii) require authorization, approval, consent or other action by any Person (other than authorizations, approvals and consents that have already been obtained and actions already taken) 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 Excluded Shares.
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(c) As of the date hereof, the Investor is the beneficial owner of its Excluded Shares, 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 Excluded Shares) other than those created by this Agreement. The Investor and its trustees together will have, and at all times during the term of this Agreement will have, with respect to its Excluded Shares, the sole power, directly or indirectly, to vote such Excluded Shares.
ARTICLE III
Section 3.1 No Proxies for or Encumbrances on Excluded Shares. Except pursuant to the terms of this Agreement or the Merger Agreement, none of the Investors will, 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 Excluded Shares, (b) tender any of the Excluded Shares pursuant to the Offer, (c) otherwise sell, assign, transfer, encumber or dispose of any Excluded Shares during the term of this Agreement, or (d) 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 the Excluded Shares 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 Voting Agreement. If Section 6.7 of the Merger Agreement becomes applicable, the Investors hereby agree to execute the Written Consent and deliver it to the Company as promptly as practicable after the Expiration Date but in no event later than two (2) Business Days after the Expiration Date, subject to and in accordance with the terms of such Section 6.7.
ARTICLE IV
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following mailing by certified or registered mail, postage prepaid and return receipt requested, 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 Investors to: |
Xxxxxx Stock Trust and/or Xxxxxx 1991 Trust
00000 Xxxxxxx Xxxxx Xxxx
Xxx Xxxxxxx, XX 00000
with copies (which shall not constitute notice) to:
Xxxxxx Xxxxxx & Xxxxx LLP
000 Xxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Xxxxx X. Xxxxx, Esq.
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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 applicable to contracts made in, and to be performed within, said state, without regard to conflicts of laws principles that would require the application of any other jurisdiction’s laws. The parties hereto hereby (a) submit to the exclusive jurisdiction of any state or federal court sitting 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, L.P. | ||
By: | Icon Acquisition Holdings LLC, its General Partner | |
By: | /s/ Xxxxxxxx X. Xxxx III | |
Name: | Xxxxxxxx X. Xxxx III | |
Title: | Vice President and CFO |
[Signature Page to Contribution Agreement - Xxxxxx]
INVESTOR: |
/s/ Xxxx X. Xxxxxx |
Xxxx X. Xxxxxx, as trustee of The Xxxx X. Xxxxxx 1991 Trust, dated May 21, 1991, as amended |
[Signature Page to Contribution Agreement - Xxxxxx]
INVESTOR: |
/s/ Xxxx X. Xxxxxx |
Xxxx X. Xxxxxx, as co-trustee of The HMH Playboy Stock Trust |
/s/ Xxxx X. X’Xxxxxx |
Xxxx X’Xxxxxx, as co-trustee of The HMH Playboy Stock Trust |
/s/ Xxxxxxx Xxxxxxxxxx |
Xxxxxxx Xxxxxxxxxx, as co-trustee of The HMH Playboy Stock Trust |
/s/ Xxxxxxx Xxxxxxxx |
Xxxxxxx Xxxxxxxx, as co-trustee of The HMH Playboy Stock Trust |
/s/ Xxxx Xxxxxxxx |
Xxxx Xxxxxxxx, as co-trustee of The HMH Playboy Stock Trust |
/s/ Xxxxxxx X. Xxxxxx |
Xxxxxxx Xxxxxx, as co-trustee of The HMH Playboy Stock Trust |
[Signature Page to Contribution Agreement - Xxxxxx]