EXHIBIT 10.29
CONTRIBUTION AGREEMENT
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This Contribution Agreement (the "Contribution Agreement") is made and
entered into as of this 31st day of January, 2000 (the "Effective Date"), by and
among (a) HOB Entertainment, Inc. ("HOB"); (b) Chase Capital Partners, Chase/HOB
1999 Partners (GC), L.L.C., Chase/HOB 1998 Partners (GC), L.L.C., CB Capital
Investors, LLC, and Chase Venture Capital Associates, L.P. (collectively
"Chase"); (c) First Union Investors, Inc. ("First Union"); and (d) ▇. ▇. ▇▇▇▇▇▇▇
& Co., ▇. ▇. ▇▇▇▇▇▇▇ III, L.P., Whitney Strategic Partners III, L.P. and ▇. ▇.
▇▇▇▇▇▇▇ Market Value Fund, L.P. (collectively, "Whitney," and Chase, First Union
and Whitney collectively referred to as the "Investors").
WHEREAS, Chase, First Union and Whitney (collectively, the
"Investors") participated in the equity financing of HOB's acquisition of
Universal Concerts, Inc. and certain of its affiliates (the "UCI Acquisition");
WHEREAS, as part of the UCI Acquisition, the Investors purchased
certain securities, including, among others, HOB Class D-2 Preferred Stock (the
"Class D-2 Stock") and HOB Common Stock Warrants (the "Warrants") pursuant to a
certain Purchase Agreement for Class D-2 Preferred Stock, 12% Senior Redeemable
Preferred Stock, Senior Convertible Preferred Stock and Common Stock Purchase
Warrants, dated as of July 21, 1999, among HOB Entertainment, Inc., the
Investors and the other investors set forth on Exhibit A-1 and Exhibit A-2
thereof (the "Purchase Agreement");
WHEREAS, the Class D-2 Stock is convertible into shares of HOB Common
Stock ("Common Stock") at the option of the holder;
WHEREAS, the Investors have certain rights, preferences and privileges
concerning the Class D-2 Stock and the Warrants, including certain anti-dilution
rights, as set forth in the Amended and Restated Certificate of Incorporation of
HOB Entertainment, Inc. (the "Certificate of Incorporation") and the Warrants;
WHEREAS, HOB, the Investors and Wm. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇") are
parties to that certain Advisory Agreement dated as of the date hereof (the
"Advisory Agreement");
WHEREAS, in connection with the Advisory Agreement, HOB and Gorog are
entering into a certain Stock Option Agreement dated as of the date hereof (such
agreement as it exists on the date hereof, and without regard to subsequent
amendments thereto, being referred to hereinafter as the "Stock Option
Agreement");
WHEREAS, the parties hereto wish to set forth their certain
obligations with respect to said Advisory Agreement and Stock Option Agreement;
NOW, THEREFORE, in consideration of the execution of this Contribution
Agreement and the mutual promises contained herein, and other good and valuable
consideration, the parties agree as follows:
1. Advisory Agreement and Stock Option Agreement.
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Contemporaneously herewith the parties hereto shall execute the Advisory
Agreement in the form annexed hereto as Exhibit 1, and Gorog and HOB shall enter
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into the Stock Option Agreement, in the form annexed to the Advisory Agreement
as Exhibit A.
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2. Contributions of HOB Common Stock. Each of the Investors,
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severally but not jointly, hereby grants to HOB the right to purchase a number
of shares of Common Stock from such Investor upon any exercise of the Option by
Gorog equal to the percentage set forth opposite its name below (each a "Share
Percentage") of the total number of shares of Common Stock to be acquired by
Gorog upon such exercise:
Contributor Percentage
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Chase 28.126%
Whitney 28.126%
First Union 17.579%
Each Investor agrees to exercise its right to convert into Common Stock
securities convertible into, or exercisable for, Common Stock to the extent
necessary to comply with its obligations in the preceding sentence. The
purchase price to be paid by HOB for each share of Common Stock shall be the
price per share paid by Gorog upon such exercise (the "Call Price"), and the
form of consideration to be utilized by HOB shall be the same form of
consideration utilized by Gorog in effectuating such exercise. HOB will provide
each Investor with written notice (a "Call Notice") of each exercise of the
Option by Gorog promptly upon receiving notice of Gorog's exercise. The Call
Notice shall designate the number of shares with respect to which the Option was
exercised by Gorog and the number of shares of Common Stock to be purchased by
HOB from each Investor. Within five (5) business days after receipt of a Call
Notice, each Investor shall transfer to HOB such Investor's Share Percentage of
the number of shares of Common Stock with respect to such exercise of the
Option, against payment of the aggregate Call Price therefor by wire transfer to
an account in a bank located in the United States specified by such Investor.
Each Investor covenants, severally but not jointly, that so long as the Option
is outstanding, such Investor will retain ownership of a number of shares of
Common Stock and/or securities convertible into or exercisable for Common Stock
equal to such Investor's Share Percentage of the aggregate number of shares of
Common Stock for which the Option is exercisable (without regard to vesting
requirements). Each Investor hereby waives any rights such Investor may have
under that certain Co-Sale Agreement dated as of September 10, 1999 by and among
certain Investors and other stockholders of HOB with respect to any sales of
Common Stock to HOB pursuant to this paragraph 2.
3. Release. Each of the parties hereto, on behalf of itself and its
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respective Releasees as hereafter defined (each a "Releasor"), for good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, unconditionally and forever releases and
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discharges each of the other parties and their respective partners, officers,
directors, stockholders, representatives, affiliates, subsidiaries,
predecessors, successors, co-investors, controlling persons, agents and
employees, past and present, and any other person or entity acting by, through,
or in concert with them, or any of them (collectively the "Releasees") from all
actions, causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, extents,
executions, claims, rights, obligations, losses, liabilities, costs, expenses,
attorneys' fees, and demands whatsoever, whether known or unknown, contingent or
absolute, suspected or unsuspected, disclosed or undisclosed, asserted or
unasserted, hidden or concealed, matured or unmatured, material or immaterial,
whether individual, class, derivative or representative, whether in law,
admiralty or equity, or of any other type or in any other capacity, against each
of the respective Releasees, which such Releasor ever had, now has or hereafter
can, shall or may, have for, upon, or by reason of any matter, cause or thing
whatsoever from the beginning of the world to the Effective Date in any way
arising out of, based upon or related to Gorog or his role in the UCI
Acquisition, or to any other plans, discussions or proposals by or among any of
the parties with Gorog, or to Gorog's involvement or interest in a possible
transaction involving Universal Concerts, Inc. (the "Released Claims"), except
for any claim pursuant to, arising out of, or for breach of this Contribution
Agreement or the Advisory Agreement. Each Releasor intends that this release
(and the covenant not to ▇▇▇ set forth in paragraph 4 of this Contribution
Agreement) shall be effective as a full and final accord and satisfaction, and
as a bar to all actions, causes of action, claims, obligations, costs, expenses,
attorneys' fees, damages, losses, liabilities and demands of or against any
Releasee of any nature, character or kind, known or unknown, suspected or
unsuspected, arising out of the Released Claims except for any claim pursuant
to, arising out of, or for breach of this Contribution Agreement or the Advisory
Agreement. Each of the Releasors represents and warrants that he/she/it/they
have not assigned or transferred any interest in any claim released by this
paragraph 3, and, further, that any Releasor who breaches the foregoing
representation and warranty shall indemnify and hold harmless any and all
Releasees hereunder, and each of them, of, from and against all liabilities,
claims, demands, damages, costs, expenses, and attorneys' fees incurred by such
Releasee as a result of any person asserting any such assignment or transfer in
violation of this paragraph's representation and warranty. It is the intention
of the parties to this Contribution Agreement, and each of them, that this
indemnity does not require payment as a condition precedent to recovery. Each
Releasor acknowledges that it is familiar with Section 1542 of the California
Civil Code, which provides as follows:
A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially
affected his settlement with the debtor.
Each Releasor expressly waives and relinquishes any and all rights and benefits
which it may have under, or which may be conferred on it by, the provisions of
Section 1542 of the California Civil Code, as well as under any other state or
federal statute or common law principle of similar effect, to the fullest extent
that they may lawfully waive such rights or benefits pertaining to the released
matters. Each Releasor intends that this release shall be and remain in effect
as a full and complete release notwithstanding the discovery or existence of any
additional or different claims or facts arising out of the released matters.
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4. HOB And The Investors' Covenant Not To ▇▇▇. HOB and the Investors
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each covenant and agree on behalf of itself and each of its respective Releasees
that it and they will never initiate any suit or action at law or otherwise
against any of the other parties to this Contribution Agreement and the other
Releasees, or institute, prosecute, induce, encourage, assist, participate in or
in any way aid any other person or entity to institute or prosecute any
litigation, claim, demand, action or cause of action against any of the other
Releasees, for any relief, including without limitation, damages, costs,
expenses or compensation for or on account of any damage, loss or injury either
to person or property, or both, or for breach of any agreement, obligation or
duty, whether developed or undeveloped, resulting or to result, known or
unknown, which any of the Releasors ever had, now has, or which hereafter can,
shall or may have for or by reason of any matter, cause or thing whatsoever from
the beginning of the world to the Effective Date in any way arising out of,
based upon or related to the Released Claims except for any claim pursuant to,
arising out of, or for breach of this Contribution Agreement or the Advisory
Agreement. The Releasees, and each of them, acknowledge and agree that if
he/she/it/they hereafter commence any suit arising out of, based upon, or
relating to any Released Claim, the Releasee who violates the provisions of this
paragraph 4 shall pay to the other Releasee(s), in addition to any other damages
caused thereby, all attorneys' fees and costs incurred by such Releasee(s), and
each of them, in defending or otherwise responding to such suit or claim.
5. Confidentiality. The parties to this Contribution Agreement agree
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that the existence and terms of this Contribution Agreement shall be held
strictly confidential and shall not be divulged to any non-party to this
Contribution Agreement, except counsel for the parties hereto. Notwithstanding
the foregoing, the parties hereto may divulge the existence and terms of this
Contribution Agreement if required to do so to comply with any legal or
regulatory requirements, including any court order in connection with a judicial
proceeding, or if required to do so in connection with an administrative
proceeding (including an audit by the Internal Revenue Service) or in connection
with the filing of tax returns, or in connection with the enforcement of this
Contribution Agreement.
6. Disputes. In any action brought to enforce or construe this
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Contribution Agreement or arising out of this Contribution Agreement (an
"Action"), the parties each hereby waive trial by jury. Any and all such
Actions shall be brought in the State or Federal Court located in Los Angeles
County, California and shall not be transferred or removed elsewhere. All
parties hereto hereby consent to the exclusive jurisdiction of such courts over
such Actions and agree that in addition to other permitted manners, service of
the summons and complaint in any Action may be made by mailing same to the
address set forth below (or to such other address which any party may notify the
other parties to utilize, by notice given pursuant to this Contribution
Agreement) by certified mail (return receipt requested) and also by first class
mail. In any Action brought to enforce this Contribution Agreement, the
prevailing party shall be entitled to recover costs and reasonable attorneys'
fees and disbursements.
7. Notices. Notices or process required to be given hereunder shall
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be sent by certified mail (return receipt requested) and also by first class
mail and shall be deemed given or received 3 days after mailing thereof, to:
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If to HOB:
HOB Entertainment, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇.▇▇▇▇▇▇▇
With a copy by mail or fax to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
If to Chase:
Chase Venture Capital Associates, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
If to First Union:
First Union Investors, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax No.:
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇
with a copy by mail or fax to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP
Bank of America Corp. Ctr.,
Suite 4200
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax No.:▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
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If to Whitney:
c/o ▇. ▇. ▇▇▇▇▇▇▇ & Co.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇
Fax NO.:(▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
with a copy by mail or fax to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Singer & ▇▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
8. Miscellaneous Provisions.
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(a) Governing Law. This Contribution Agreement shall be governed,
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construed, interpreted, and enforced in accordance with the substantive law of
the State of California applied to agreements entered into and performed
entirely within such State.
(b) Entire Agreement. This Contribution Agreement (including the
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annexed exhibits) is the complete and exclusive statement of the entire
agreement and understanding between all the undersigned parties with respect to
the subject matter hereof. No representations, oral or otherwise, express or
implied, other than those specifically set forth in this Contribution Agreement
(including the annexed exhibits) have been made by any party to the other party
regarding the subject matter of this Contribution Agreement. If any of the terms
of this Contribution Agreement shall conflict with any term of the Advisory
Agreement, the terms of this Contribution Agreement shall govern.
(c) Titles and Captions. Paragraph titles or captions contained
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herein are inserted only as a matter of convenience and for reference and in no
way define, limit, extend or describe the scope of the Contribution Agreement or
the intent of any provision.
(d) Further Assurances. Each of the parties shall take such other
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actions and execute such other documents as may be reasonably necessary to
effectuate this Contribution Agreement and the undertakings made herein.
(e) Acknowledgment of Receipt of Consideration. Each party
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acknowledges receipt of legally sufficient consideration for this Contribution
Agreement.
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(f) Parties. This Contribution Agreement shall be binding upon, and
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shall inure to the benefit of, the parties hereto and their respective heirs,
estates, successors and assigns.
(g) No Acknowledgment Of Liability. Neither the execution and
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delivery of this Contribution Agreement nor any actions taken by any party
pursuant to this Contribution Agreement shall be deemed to constitute any
acknowledgment of wrongdoing or liability on the part of any party to this
Contribution Agreement.
(h) Legal Counsel. The parties hereto have each been represented by
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legal counsel in connection with this Contribution Agreement.
(i) Non-Waiver of Breach. The waiver by any party of any breach of
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this Contribution Agreement shall not be deemed or construed as a waiver of any
other breach, whether prior, subsequent, or contemporaneous, of this
Contribution Agreement.
(j) Amendments. This Contribution Agreement shall not be suspended,
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waived, terminated, amended or modified in any manner except in a writing signed
by all parties to be bound.
(k) Counterparts. This Contribution Agreement may be executed
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simultaneously in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument. Telefacsimile transmissions of any executed original Contribution
Agreement or document and/or retransmission of any executed telefacsimile
transmission shall be deemed to be the same as the delivery of an executed
original.
(l) Drafter. For purposes of construing this Contribution Agreement,
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each of the parties hereto shall be deemed the drafter of this Contribution
Agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Contribution
Agreement as of the day and year first above written.
HOB ENTERTAINMENT, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. Trojan
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Name: ▇▇▇▇▇▇▇ ▇. Trojan
Title: President and Chief Executive Officer
CHASE CAPITAL PARTNERS
By:
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Name:
Title:
CHASE/HOB 1999 PARTNERS (GC), L.L.C.
By: CB Capital Investors, L.P.
Its Managing Member
By: CB Capital Investors, Inc.
Its Managing Partner
By:_____________________________________________
Name:
Title:
CHASE/HOB 1998 PARTNERS (GC), L.L.C.
By: Chase Venture Capital Associates, L.P.
Its Managing Member
By: Chase Capital Partners
Its General Partner
By:_____________________________________________
Name:
Title:
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CB CAPITAL INVESTORS, LLC
By: Chase Capital Partners
Its Manager
By: _____________________________________________
Name:
Title:
CHASE VENTURE CAPITAL ASSOCIATES, L.P.
By: Chase Capital Partners, General Partner
Its General Partner
By: _____________________________________________
Name:
Title:
FIRST UNION INVESTORS, INC.
By: _____________________________________________
Name:
Title:
▇. ▇. ▇▇▇▇▇▇▇ & CO.
By: Whitney General Partner, L.L.C.,
Its General Partner
By: _____________________________________________
Name:
A Managing Member
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▇. ▇. ▇▇▇▇▇▇▇ III, L.P.
By: ▇. ▇. ▇▇▇▇▇▇▇ Equity Partners III, LLC,
Its General Partner
By: _____________________________________________
Name:
A Managing Member
WHITNEY STRATEGIC PARTNERS III, L.P.
By: ▇. ▇. ▇▇▇▇▇▇▇ Equity Partners III, LLC,
Its General Partner
By: _____________________________________________
Name:
A Managing Member
▇. ▇. ▇▇▇▇▇▇▇ MARKET VALUE FUND, L.P.
By: Whitney Market Value GP, Ltd.
Its General Partner
By: _____________________________________________
Name:
A Managing Member
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