CONTRIBUTION AND EXCHANGE AGREEMENT
among
THE PROMENADE TRUST
and
RFX ACQUISITION LLC
and
SPORTS ENTERTAINMENT ENTERPRISES, INC.
Dated as of December 15, 2004
TABLE OF CONTENTS
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Amounts Paid and Calculated in U.S. Dollars; Receivables and Payable Currency |
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Purchasers" Corporate Opportunities; Trustees not Personally Liable |
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EXHIBITS
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Exhibit A |
Purchase and Sale Agreement |
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Exhibit B |
Operating Agreement |
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Exhibit C |
Closing Escrow Agreement |
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Exhibit D |
Instrument of Assignment |
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Exhibit E |
Bill of Sale and Instrument of Assumption |
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Exhibit F-1 |
Form of Legal Opinion of Proskauer Rose LLP |
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Exhibit F-2 |
Form of Legal Opinion of Glankler Brown PLLC |
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Exhibit F-3 |
Form of Legal Opinion of Greenberg Traurig |
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Exhibit G |
Letter Agreement with Beneficiary |
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Exhibit H |
Form of Employment Agreement |
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Exhibit I |
Form of Beneficiary Employment Agreement |
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Exhibit J |
Unaudited Financial Statements |
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Exhibit K |
Publico Financial Statements |
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Exhibit L |
Tax Sharing Agreement |
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Exhibit M |
[Intentionally Omitted] |
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Exhibit N |
Prohibited Activities |
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Exhibit O |
Publico Preferred Stock Term Sheet |
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Exhibit P |
Consulting and Non-Competition Agreement |
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Exhibit Q |
Knowledge of Seller |
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Exhibit R |
Mansion Agreement |
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Exhibit S |
EPE Series A and Series B Preferred Stock Term Sheet |
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Exhibit T |
Other Preferred Stock Term Sheet |
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SCHEDULES
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Schedule A |
Excluded Assets and Excluded Liabilities |
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Schedule 3.2(h) |
Title Endorsements |
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Schedule 3.3(b) |
Employment Agreements |
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Schedule 4.1 |
Beneficiaries under the Trust Agreement |
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Schedule 4.3(a) |
Subsidiaries of Seller |
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Schedule 4.3(b) |
Transferred Subsidiaries |
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Schedule 4.4 |
Consents and Approvals Required for Seller |
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Schedule 4.5 |
Seller Non-Contravention |
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Schedule 4.8 |
Litigation and Claims |
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Schedule 4.9(a) |
Taxes – EPE Shares |
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Schedule 4.9(b) |
Taxes – Contributed Assets |
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Schedule 4.10(a) |
Employee Benefit Plans |
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Schedule 4.10(c) |
Employee Benefits |
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Schedule 4.11(a) |
Labor Matters |
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Schedule 4.11(b) |
List of Employees |
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Schedule 4.12 |
No Default and Compliance with Laws |
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Schedule 4.13 |
Environmental Matters |
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Schedule 4.14(a) |
Material Contracts |
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Schedule 4.14(b) |
Breaches of Material Contracts |
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Schedule 4.14(c) |
Guarantees |
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Schedule 4.14(d) |
Material Contracts Requiring Consent |
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Schedule 4.15 |
Title to Tangible Personal Property |
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Schedule 4.16(a) |
All Owned Real Property and All Leased Real Property used by Seller or the Transferred Subsidiaries to Conduct the Business |
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Schedule 4.16(b) |
Exceptions to Title to Owned and Leased Real Properties |
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Schedule 4.16(d) |
Defaults and Related Matters |
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Schedule 4.17 |
Material Adverse Effects |
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Schedule 4.18 |
Insurance |
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Schedule 4.19 |
Permits |
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Schedule 4.20(a) |
Intellectual Property Rights |
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Schedule 4.20(c)(i) |
Pending Lawsuits, Actions and/or Formal Claims Relating to Intellectual Property Rights |
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Schedule 4.20(c)(ii) |
List of Recipients of Cease and Desist Letters Regarding Intellectual Property Rights |
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Schedule 4.20(c)(iii) |
Persons Infringing Intellectual Property Rights |
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Schedule 4.20(d) |
Pending Claims, Demands and Suits Asserting that Intellectual Property Rights Infringe Upon Third Party Rights |
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Schedule 4.20(e)(i) |
Musical Compositions |
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Schedule 4.20(e)(ii)(a) |
Schedule of "Suspense Account" Monies (Those Royalty Monies Due to But Not Paid to Songwriters and/or Other Participants) |
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Schedule 4.20(e)(ii)(b) |
Schedule of "Suspense Account" Monies (Those Monies Received by or on Behalf of Seller in Regard to Musical Compositions Neither Owned or Controlled by Seller) |
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Schedule 4.20(e)(iv)(A) |
Songwriters and Other Royalty Participants |
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Schedule 4.20(e)(iv)(B) |
List of Agreements with Include "Controlled Compositions" Clauses and/or Other Compensation Clauses Below Industry Norms |
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Schedule 4.20(e)(v) |
List of Extant Exclusive Agreements |
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Schedule 4.20(e)(vii) |
Schedule of Advances |
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Schedule 4.20(f)(i) |
Audio/Visual Masters and Corresponding Agreements |
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Schedule 4.20(f)(iii) |
Audio/Visual Material Outstanding Advances |
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Schedule 4.20(g)(i) |
Audio Masters and Corresponding Agreements |
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Schedule 4.20(g)(iii) |
Audio Master Material Outstanding Advances |
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Schedule 4.20(h)(i) |
Written Works |
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Schedule 4.20(h)(iii) |
Written Works |
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Schedule 4.20(i) |
Trademarks |
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Schedule 4.20(j) |
Identity Rights |
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Schedule 4.20(k) |
Photographs |
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Schedule 4.20(l) |
Owned or Validly Licensed Software |
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Schedule 4.20(m)(i) |
Material Intellectual Property Contracts |
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Schedule 4.21 |
Outstanding Indebtedness of the Business |
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Schedule 5.1 |
Members of Purchasing LLC |
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Schedule 5.3(c) |
Capital Stock or Other Equity Interests of any Person held by Publico |
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Schedule 5.4 |
Consents and Approvals Required for Purchasers |
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Schedule 5.5 |
Purchasers Non-Contravention |
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Schedule 5.9 |
SEC Reports and Financial Statements Not Filed Timely or Related Matters |
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Schedule 5.12 |
Business of Publico |
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Schedule 5.14 |
Trading in Stock |
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Schedule 5.19 |
Taxes – Publico |
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Schedule 6.1(e) |
Permitted Dividends and Distributions |
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Schedule 6.1(j) |
Permitted Indebtedness |
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Schedule 6.9(b) |
Certain Confidential Information |
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Schedule 6.10(a) |
Related Party Agreements which Shall be Terminated |
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Schedule 6.10(b) |
Liquidation of Certain Seller Entities |
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Schedule 6.13 |
Meadow Oaks Debt Fee |
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Schedule 7.2(i) |
Exceptions to Audited Financial Statements Condition |
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Schedule 7.2(j) |
Liabilities |
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Schedule 10.17(a) |
Controlling Person"s Activities |
vii
CONTRIBUTION AND EXCHANGE AGREEMENT, dated as of December 15, 2004 among The Promenade Trust, a grantor trust created under the laws of Tennessee ("Seller"), Sports Entertainment Enterprises, Inc., a Colorado corporation ("Publico") and RFX Acquisition LLC, a Delaware limited liability company ("Purchasing LLC," and together with Publico, "Purchasers"), (each a "Party," and collectively, the "Parties").
W I T N E S S E T H:
WHEREAS, Purchasing LLC has identified Publico, as an appropriate vehicle for the transactions contemplated by this Agreement and the operation of the Business after the Closing hereunder, and has entered into an acquisition agreement with Publico of even date herewith pursuant to which (i) Purchasing LLC will acquire control of Publico at the closing simultaneously with the Closing hereunder, and (ii) Purchasing LLC will make certain cash contributions to Publico (the closing of such contribution and acquisition transaction, the "Concurrent Contribution");
WHEREAS, Seller desires to contribute and Publico desires to accept and receive, an interest in the assets, properties and rights, and to assume the liabilities and obligations related thereto, of Seller that are used or useful in businesses and operations and relate in any way to Elvis Presley or to Seller, excluding only (i) the assets, properties and rights set forth on Schedule A (the "Excluded Assets") and (ii) the liabilities and obligations set forth on Schedule A (the "Excluded Liabilities") (such businesses and operations and such assets, properties, rights liabilities and obligations thereof, excluding the Excluded Assets and the Excluded Liabilities, the "Business");
WHEREAS, Seller will form a Delaware limited liability company ("LLC") and contribute and transfer to LLC (the "LLC Contribution"), at or before the Closing, all of the assets, properties and rights of the Business, other than those held directly or indirectly by Elvis Presley Enterprises, Inc., a Tennessee corporation ("EPE") (the "Contributed Assets"), and LLC will accept such assets and accept and assume the liabilities and obligations of Seller to the extent related to the Contributed Assets, as provided hereunder;
WHEREAS, EPE and LLC together will hold at Closing all of the assets, properties and rights, and liabilities and obligations of the Business;
WHEREAS, simultaneous with the Concurrent Contribution, Seller desires to contribute to Publico by means of the contributions, transfers and assignments contemplated hereby and on the terms and subject to the conditions hereof, 100% of the outstanding Class A membership interests of LLC as of the Closing Date (such contributed interests, the "LLC Interests") and the EPE Shares, with Seller retaining the Retained Interest;
WHEREAS, Seller and Publico will enter into: (i) a stockholders agreement covering the Parties ownership of the EPE Shares ("Stockholders
Agreement"), and (ii) an Operating Agreement covering the Parties ownership of the LLC Interests, in the form set forth on Exhibit B hereto, governing the operation after Closing of EPE and LLC, respectively;
WHEREAS, all the transactions, contributions, transfers and assignments contemplated by this Agreement and by the Concurrent Contribution are intended to be part of a single integrated plan and are together intended to qualify as a tax-free contribution to the capital of Publico under Section 351 of the Code;
NOW, THEREFORE, in consideration of the mutual covenants and undertakings contained herein, and subject to and on the terms and conditions herein set forth, the Parties agree as follows:
DEFINITIONAL PROVISIONS AND INTERPRETATION
Section 1.1 Definitional Provisions; Interpretation.
(a) The words "herein" and "hereunder" and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement.
(b) Terms defined in the singular shall have a comparable meaning when used in the plural, and vice versa.
(c) This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting or causing any instrument to be drafted.
(d) For purposes of Article VIII the words "indemnify", "indemnification" and "indemnity" shall be deemed to also refer to the words "defend" and "hold harmless".
(e) Whenever the words "include", "including" or "includes" appear in this Agreement, they shall be read to be followed by the words "without limitation" or words having similar import.
CONTRIBUTION AND EXCHANGE OF LLC INTERESTS AND EPE SHARES
Section 2.1 Contribution and Exchange of LLC Interests and EPE Shares. Upon the terms and subject to the conditions set forth in this Agreement, at the Closing, Seller shall contribute to Publico the LLC Interests and the EPE Shares (the "Seller Contribution