EX-2.2 3 d372210dex22.htm EX-2.2 EX-2.2

Exhibit 2.2

EXECUTION VERSION

 

 

 

MEMBERSHIP INTEREST PURCHASE AGREEMENT

BY AND AMONG

IBG BORROWER LLC,

ICONIX BRAND GROUP, INC.,

DHX MEDIA LTD.

AND

DHX SSP HOLDINGS LLC

DATED MAY 9, 2017

 

 

 

 

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.


         Page  

ARTICLE I DEFINITIONS; CONSTRUCTION

     1  

1.1

 

Defined Terms

     1  

1.2

 

Additional Defined Terms

     8  

1.3

 

Construction

     9  

1.4

 

Exhibits and the Disclosure Letters

     10  

1.5

 

Knowledge

     10  

ARTICLE II SALE OF INTERESTS; CLOSING

     10  

2.1

 

Sale of Interests

     10  

2.2

 

Closing; Closing Deliverables

     10  

ARTICLE III PURCHASE PRICE

     12  

3.1

 

Purchase Price; Delivery of Funds

     12  

3.2

 

Working Capital Adjustment

     12  

3.3

 

DHX Parent Guaranty

     13  

3.4

 

Iconix Parent Guaranty

     14  

3.5

 

Purchase Price Allocation

     14  

ARTICLE IV REPRESENTATIONS AND WARRANTIES OF SELLER

     15  

4.1

 

Due Organization, Good Standing

     15  

4.2

 

Authorization; Noncontravention

     15  

4.3

 

Title to Interests

     16  

4.4

 

Company; Capitalization

     16  

4.5

 

Financial Statements; Undisclosed Liabilities

     17  

4.6

 

Consents and Approvals

     17  

4.7

 

Title to Non-IP Assets

     17  

4.8

 

Intentionally Omitted

     17  

4.9

 

Litigation and Other Proceedings; Orders

     17  

4.10

 

Absence of Certain Changes and Events

     18  

4.11

 

Material Contracts

     19  

4.12

 

Tax Matters

     21  

4.13

 

Intellectual Property

     22  

4.14

 

Compliance with Laws

     24  

4.15

 

Finders; Brokers

     24  

4.16

 

Employees and Benefit Plans

     24  

4.17

 

Certain Payments

     25  

4.18

 

Accounts Receivable

     25  

4.19

 

Transactions with Affiliates

     25  

4.20

 

Insurance

     25  

4.21

 

No Material Adverse Effect

     26  

4.22

 

Exclusivity of Representations

     26  

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

(ii)


         Page  

ARTICLE V REPRESENTATIONS AND WARRANTIES OF PURCHASER

     26  

5.1

 

Corporate Due Organization, Good Standing and Corporate Power of Purchaser

     26  

5.2

 

Authorization; Noncontravention

     26  

5.3

 

Consents and Approvals

     27  

5.4

 

Available Funds

     27  

5.5

 

Litigation

     28  

5.6

 

Finders; Brokers

     28  

5.7

 

Investigation and Acknowledgment by Purchaser

     28  

5.8

 

Exclusivity of Representations

     29  

ARTICLE VI COVENANTS

     29  

6.1

 

Access to Information Concerning Properties and Records

     29  

6.2

 

Conduct of Seller and the Business

     30  

6.3

 

Efforts to Close; Antitrust Laws

     30  

6.4

 

Public Announcements

     31  

6.5

 

Notification of Certain Matters

     32  

6.6

 

Post-Closing Access to Records and Personnel; Litigation Support

     32  

6.7

 

Tax Matters

     33  

6.8

 

Further Assurances

     35  

6.9

 

Audited Financials

     35  

6.10

 

Financing

     35  

6.11

 

Aged Accounts Receivable Credit

     38  

6.12

 

Efforts to Collect and Reporting

     38  

6.13

 

Payment to Wrong Party Following Closing

     38  

6.14

 

Transfer of Domain Name Registrations

     38  

ARTICLE VII CONDITIONS PRECEDENT

     39  

7.1

 

Conditions to the Obligations of Each Party

     39  

7.2

 

Conditions to the Obligations of Purchaser

     39  

7.3

 

Conditions to the Obligations of Seller

     40  

7.4

 

Frustration of Closing Conditions

     40  

ARTICLE VIII INDEMNIFICATION; REMEDIES

     40  

8.1

 

General Indemnification by Seller

     40  

8.2

 

Tax Indemnification by Seller

     40  

8.3

 

Indemnification by Purchaser

     41  

8.4

 

Time Limitations

     41  

8.5

 

Limitations on Amount

     41  

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

(iii)


         Page  

8.6

 

Procedure for Indemnification — Third Party Claims

     42  

8.7

 

Adjustment to Purchase Price

     43  

8.8

 

Damages

     43  

ARTICLE IX TERMINATION

     43  

9.1

 

Termination Events

     43  

9.2

 

Effect of Termination

     44  

9.3

 

No Recourse to Debt Financing Source

     45  

ARTICLE X MISCELLANEOUS

     45  

10.1

 

Expenses

     45  

10.2

 

Extension; Waiver

     45  

10.3

 

Notices

     45  

10.4

 

Entire Agreement

     47  

10.5

 

Binding Effect; Benefit; Assignment

     47  

10.6

 

Amendment and Modification

     47  

10.7

 

Counterparts

     47  

10.8

 

Applicable Law

     47  

10.9

 

Severability

     48  

10.10

 

Specific Enforcement; Limitation on Damages

     48  

10.11

 

Waiver of Jury Trial

     48  

10.12

 

Release

     49  

10.13

 

Rules of Construction

     49  

10.14

 

Headings

     49  

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

(iv)


   EXHIBITS

Exhibit A

  

–  Form of Release

Exhibit B

  

–  Interests Assignment and Assumption Agreement

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

(v)


MEMBERSHIP INTEREST PURCHASE AGREEMENT

This MEMBERSHIP INTEREST PURCHASE AGREEMENT (this “Agreement”) is dated May 9, 2017 by and among IBG Borrower LLC, a limited liability company organized under the Laws of the State of Delaware (“Seller”), and, solely for purposes of Section 3.4 hereof, Iconix Brand Group, Inc., a corporation organized under the Laws of the State of Delaware (“Iconix”), on the one hand, and DHX SSP Holdings LLC, a limited liability company organized under the Laws of the State of Delaware (“Purchaser”), and, solely for purposes of Section 3.3 hereof, DHX Media Ltd., a corporation organized under the Laws of Canada (“DHX”), on the other hand. Unless otherwise expressly provided to the contrary, all capitalized terms used in this Agreement shall have the meanings ascribed to such terms in Section 1.1 of this Agreement.

W I T N E S S E T H:

WHEREAS, Seller owns all of the issued and outstanding membership interests (the “Interests”) of Shortcake IP Holdings LLC, a limited liability company organized under the Laws of the State of Delaware (the “Company”), which is engaged in the Business;

WHEREAS, upon the terms and subject to the conditions of this Agreement, the parties hereto desire that Purchaser purchase and Seller sells or causes to be sold, transferred, conveyed and assigned to Purchaser, the Interests on the Closing Date (the “Purchase”);

WHEREAS, it is the intention of the parties hereto that, upon consummation of the Purchase pursuant to this Agreement, Purchaser shall own all of the outstanding membership interests of the Company; and

WHEREAS, as a material inducement to Iconix and Seller to enter into this Agreement, DHX is providing a guaranty in favor of Iconix and Seller pursuant to which DHX is guaranteeing certain obligations of Purchaser including the payment of the Purchase Price.

NOW, THEREFORE, in consideration of the premises and of the mutual covenants, representations, warranties and agreements herein contained, the parties, intending to be legally bound, agree as follows:

ARTICLE I

DEFINITIONS; CONSTRUCTION

1.1    Defined Terms. When used in this Agreement, the following terms shall have the respective meanings specified therefor below:

Affiliate” of any Person shall mean any other Person directly or indirectly controlling, controlled by, or under common control with, such Person, provided that for the purposes of this definition, “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by Contract or otherwise.

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.


Aged Accounts Receivable” shall mean any accounts receivable of the Company incurred in the ordinary course of business which have been outstanding for more than 120 days from the applicable due date pursuant to the relevant Contract.

Antitrust Authorities” shall mean the Federal Trade Commission, the Antitrust Division of the United States Department of Justice, the attorneys general of the several states of the United States of America and any other Governmental Entity having jurisdiction with respect to the transactions contemplated hereby pursuant to applicable Antitrust Laws.

Antitrust Filings” shall mean all required filings under the HSR Act and all filings under other applicable Antitrust Laws required in order to consummate the transactions contemplated by this Agreement.

Antitrust Laws” shall mean the Sherman Act, 15 U.S.C. §§ 1-7, as amended; the Clayton Act, 15 U.S.C. §§ 12-27, 29 U.S.C. §§ 52-53, as amended; the HSR Act; the Federal Trade Commission Act, 15 U.S.C. §§ 41-58, as amended; and all other Laws and Orders that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization, restraint of trade, or lessening of competition through merger or acquisition.

Balance Sheet” shall mean the unaudited proforma balance sheet of the Business as at December 31, 2016, as set forth in Section 4.5(a) of the Seller Disclosure Letter.

Business” shall mean the business of the Company, as currently conducted by the Company, of owning, exploiting, promoting, advertising and licensing the IP Assets.

Business Day” shall mean any day except a Saturday, a Sunday or any other day on which commercial banks are required or authorized to close in New York, New York or Halifax, Nova Scotia.

Closing Working Capital” shall mean Current Assets minus Current Liabilities, determined as of the close of business on the Closing Date. The Closing Working Capital can be represented by a positive or a negative number.

Code” shall mean the United States Internal Revenue Code of 1986, as amended.

Confidentiality Agreement” shall mean that certain Nondisclosure and Restrictive Covenant Agreement, dated as of August 29, 2016, by and between Iconix and DHX.

Contract” shall mean any note, bond, mortgage, indenture, guaranty, license, franchise, agreement, contract, lease, commitment, promise or undertaking, and any amendments thereto.

Copyright” shall mean, throughout the world, all registered and unregistered copyrights and registrations and applications to register the same, all extensions, renewals and reversions related thereto, and all design and database rights recognized by applicable Law, including moral rights of authors.

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-2-


Current Assets” shall mean cash and cash equivalents, accounts receivable, prepaid expenses and deposits, but excluding any (i) deferred Tax assets, (ii) Aged Accounts Receivable (net of applicable reserves), (iii) the portion of any prepaid expense or deposit of which Purchaser will not receive the benefit following Closing, and (iv) receivables from any of the Company’s Affiliates, directors, employees, officers or equity holders, and any of their respective Affiliates, in each case as determined with respect to the Business in accordance with GAAP applied using the same accounting methods, practices, principles, policies and procedures, with consistent classifications, judgments and valuation and estimation methodologies that were used in preparing the Balance Sheet.

Current Liabilities” shall mean accounts payable, accrued Taxes, accrued expenses and current deferred revenue, but excluding any (i) deferred Tax liabilities, and (ii) payables to any of the Company’s Affiliates, directors, employees, officers or equity holders, and any of their respective Affiliates, in each case as determined with respect to the Business in accordance with GAAP applied using the same accounting methods, practices, principles, policies and procedures, with consistent classifications, judgments and valuation and estimation methodologies that were used in preparing the Balance Sheet.

Equity Interests” of any Person shall mean the shares, membership interests, partnership interests or other equity interests, as applicable, of such Person.

GAAP” shall mean generally accepted accounting principles of the United States of America consistently applied, as in effect from time to time.

Governmental Authorization” shall mean any approval, consent, license, permit, waiver or other authorization issued, granted, given or otherwise made available by or under the authority of any Governmental Entity or pursuant to any Law or Order.

Governmental Entity” shall mean any United States or non-United States federal, national, state, territory, provincial or local court, arbitral tribunal, administrative agency or commission or other governmental or quasi-governmental authority of any nature (including any governmental agency, branch, department, official, or entity and any court or other tribunal), including any regulatory agency or authority, any securities exchange and any organization or body exercising, or entitled to exercise, any administrative, executive, judicial, legislative, police, regulatory or taxing authority or power of any nature.

HSR Act” shall mean the Hart-Scott-Rodino Antitrust Improvements Act of 1976, 15 U.S.C. § 18a et seq., as amended, and the rules and regulations promulgated thereunder.

Intellectual Property” shall mean any and all intellectual property rights, including rights in or with respect to (including remedies against infringement thereof and rights of protection of interest therein under the law of all jurisdictions) any and all of the following: (a) utility and design patents; (b) Trademarks, slogans, design rights (and design registrations) and brand names and other indicia of origin, whether registered or unregistered, and all associated goodwill; (c) Copyrights; (d) social network site handles; and (e) all registrations and applications for, and all extensions, renewals and reversions of, any of the foregoing.

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-3-


IP Assets” shall mean all Intellectual Property primarily relating to the “STRAWBERRY SHORTCAKE” brand, and the characters, cartoons, comics, comic strips, drawings, artwork, graphics, illustrations, animation, plots, storylines, dialogues, settings, themes and backgrounds associated with that brand, that is owned by the Company, including any of the foregoing that are Owned IP Assets, together with the Licensed IP Assets.

IRS” shall mean the United States Internal Revenue Service.

Law” shall mean any statute, law, constitution, treaty, ordinance, policy, rule or regulation of any Governmental Entity, any common law principle or doctrine and all judicial interpretations thereof.

Liabilities” shall mean any and all indebtedness, liabilities and obligations of any nature, whether accrued or fixed, known or unknown, absolute or contingent, liquidated or unliquidated, matured or unmatured or determined or determinable.

License Agreements” shall mean all Contracts pursuant to which the Company licenses all or any part of the IP Assets to another Person.

Licensed IP Assets” shall mean all Intellectual Property that is used in the Business and that is licensed to the Company by any other Person.

Liens” shall mean any liens, security interests, claims, easements, mortgages, charges, pledges, indentures, deeds of trust, rights of way, encroachments or any other encumbrances and other restrictions or limitations on ownership or use of real or personal property (both tangible and intangible) or irregularities in title thereto, including any title retention device, conditional sale or other security arrangement or collateral assignment.

Material Adverse Effect” shall mean any change, effect, event, development, fact, condition, circumstance, or occurrence (each, an “Effect”) that, individually or in the aggregate, has had, or would reasonably be expected to have, a material adverse effect on the business, assets, condition (financial or otherwise) or results of operations of the Business, taken as a whole, or on the ability of a Person to consummate or perform the Purchase in accordance with the terms of this Agreement, provided that no Effect resulting from any of the following shall constitute a Material Adverse Effect or be considered in determining whether a Material Adverse Effect has occurred:

(a)    general economic or political conditions in the United States or in any other country or region in the world in which the Business is operated;

(b)    conditions or changes in the securities markets, credit markets, currency markets or other financial markets in the United States or any other country or region in the world in which the Business is operated, including (i) interest rates in the United States or any other country or region in the world in which the Business is operated, and exchange rates for the currencies of any such countries, and (ii) any suspension of trading in securities (whether

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-4-


equity, debt, derivative or hybrid securities) generally on any securities exchange or over-the-counter market operating in the United States or any other country or region in the world in which the Business is operated;

(c)    any changes or prospective changes after the date hereof to applicable Laws or interpretations thereof by any Governmental Entity, or to any applicable accounting rules (or interpretations thereof);

(d)    the announcement of this Agreement and the transactions contemplated hereby or any communication by Purchaser of its plans or intentions with respect to the Business or any portion thereof;

(e)    the pendency or consummation of the transactions contemplated by this Agreement or any actions or inactions by Purchaser or Seller or any of their respective Subsidiaries taken or omitted in accordance with this Agreement;

(f)    any natural or man-made disaster or any acts of terrorism, sabotage, military action or war (whether or not declared), or any escalation or worsening thereof in such countries or regions;

(g)    any action taken or not taken at the request, or with the written consent or waiver, of Purchaser; or

(h)    any matter disclosed in the Seller Disclosure Letter or in the SEC Reports;

provided that with respect to clauses (a), (b), (c) and (f), to the extent that such Effects do not have a materially disproportionate impact on the Business relative to other companies in the industries in which the Business is operated.

Order” shall mean any award, judgment, order, injunction, decree, decision, subpoena, writ, permit or license of any Governmental Entity or any arbitrator.

Owned IP Assets” shall mean the Intellectual Property owned by the Company.

Peanuts Transaction Agreement” shall mean that certain Membership Interest Purchase Agreement, dated as of the date hereof, by and among Iconix, Icon NY Holdings LLC, Seller, DHX and Purchaser for the sale and purchase of (a) 80% of the issued and outstanding common units of Peanuts Holdings LLC, and (b) all of the issued and outstanding membership interests of IBGNYC LLC and IBGSCREEN, LLC.

Permits” shall mean all permits, approvals, licenses, authorizations, certificates, rights, exemptions and Orders from Governmental Entities.

Permitted Liens” shall mean (a) statutory Liens or other Liens arising in the ordinary course of business (including by operation of law) securing payments not yet due, including mechanics’, carriers’, workmen’s, repairmen’s and materialmen’s Liens, (b) Liens for Taxes not yet due and payable or for current Taxes that may thereafter be paid without penalty

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-5-


and Liens for Taxes which are being contested in good faith and by appropriate proceedings, (c) Liens set forth in Section 1.1(b) of the Seller Disclosure Letter, (d) all Material Contracts, (e) any other licenses granted in any Intellectual Property and any Lien or other restriction on use arising under the terms of any Contract concerning Intellectual Property to which the Company is a party, which do not, individually or in the aggregate, result in material costs or liabilities to the Business, taken as a whole and all restrictions on the transfer or ownership of Intellectual Property arising as a matter of Law, (f) all restrictions and encumbrances resulting from filing or recordation requirements concerning the transfer or ownership of Intellectual Property which do not materially impair or limit or have a Material Adverse Effect on the use of the subject Intellectual Property, and (g) Liens created by this Agreement or in connection with the transactions contemplated hereby, or by the actions of Purchaser or its Affiliates.

Person” shall mean and include any individual, company, partnership, limited partnership, limited liability partnership, joint venture, corporation, limited liability company, association, trust, unincorporated organization, proprietorship, group or Governmental Entity.

Post-Closing Period” shall mean all taxable years or other taxable periods that begin after the Closing Date and, with respect to any Straddle Period, the portion of such taxable year or period beginning after the Closing Date.

Pre-Closing Period” shall mean all taxable years or other taxable periods that end on or before the Closing Date and, with respect to any Straddle Period, the portion of such taxable year or period ending on or before the Closing Date.

Proceeding” shall mean any action, arbitration, audit, hearing, investigation, litigation, or suit (whether civil, criminal, administrative, investigative or informal) commenced, brought, conducted or heard by or before, or otherwise involving, any Governmental Entity or arbitrator.

Purchase Price” shall mean an amount equal to [***].

Representatives” of any Person shall mean such Person’s directors, managers, officers, employees, members, agents, attorneys, consultants, advisors or other Persons acting on behalf of such Person.

Returns” shall mean any and all returns, reports, forms (including elections, declarations, statements, claims for refund, schedules, information returns or attachments thereto) and any other documents filed or required to be filed with a Taxing Authority with respect to Taxes, including any amendments thereto.

SEC” shall mean the United States Securities and Exchange Commission.

SEC Reports” shall mean all forms, reports, statements, certifications and other documents (together with all exhibits, amendments and supplements thereto) containing financial information regarding the Company and filed or furnished by Iconix with the SEC on or after March 3, 2015, to the extent such items are publicly available through the SEC’s Electronic Data Gathering, Analysis and Retrieval system prior to the date of this Agreement.

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-6-


Straddle Period” shall mean any taxable year or other taxable period beginning before and ending on or after the Closing Date.

Subsidiary” shall mean, with respect to any Person, (a) any corporation more than 50% of the stock of any class or classes of which having by the terms thereof ordinary voting power to elect a majority of the directors of such corporation (irrespective of whether or not at the time stock of any class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is owned by such Person directly or indirectly through one or more subsidiaries of such Person and (b) any partnership, association, joint venture, limited liability company or other entity in which such Person directly or indirectly through one or more subsidiaries of such Person has more than a 50% Equity Interest.

Tax” (or “Taxes”) shall mean (a) all taxes, assessments, charges, duties, fees, levies or other governmental charges imposed by a Taxing Authority, including all United States federal, state, territory, local, foreign and other income, franchise, profits, gross receipts, capital gains, capital stock, transfer, sales, use, value added, unclaimed property or escheat, occupation, property, excise, severance, windfall profits, stamp, license, payroll, social security, withholding, estimated and other taxes, assessments, charges, duties, fees, levies or other governmental charges imposed by any Taxing Authority of any kind whatsoever (whether payable directly or by withholding and whether or not requiring the filing of a Return), together with any penalties and interest and any additional amounts with respect thereto, (b) any liability for the payment of any amounts of the type described in clause (a) of this definition as a result of being a member of an affiliated, consolidated, combined or unitary group for any period prior to the Closing, and (c) any liability for the payment of any amounts of the type described in clause (a) of this definition as a result of any express or implied obligation to indemnify any Person.

Tax Contest” shall mean any audit, hearing, proposed adjustment, arbitration, deficiency, assessment, suit, dispute, claim, proceeding or other litigation commenced, filed or otherwise initiated or convened to investigate or resolve the existence and extent of a liability for Taxes.

Taxing Authority” shall mean any Governmental Entity responsible for or having jurisdiction over the assessment, determination, collection, administration or imposition of Taxes.

Transition Services Agreement” shall mean the transition services agreement delivered in accordance with and attached as Exhibit B of the Peanuts Transaction Agreement.

Third Party” shall mean any Person other than Seller, Purchaser or any of their respective Affiliates.

Trademarks” shall mean, throughout the world, all trademarks, service marks, logos, trade names, Internet domain name registrations, together with goodwill, registrations and applications relating to the foregoing, all extensions, renewals and reversion related thereto, common law trademarks and service marks and trade dress.

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-7-


1.2    Additional Defined Terms. In addition to the terms defined in Section 1.1, additional defined terms used herein shall have the respective meanings assigned thereto in the Sections indicated below.

 

Defined Term

   Section

Accountants

   3.2(b)(ii)

Agreement

   Preamble

Allocation

   3.5(a)

Alternative Financing

   6.10(b)

Alternative Financing Commitment Letter

   6.10(b)

Applicable Parties

   9.3

Balance Sheet Date

   4.5(c)

Basket

   8.5(b)

Business Accounts Receivable

   4.18

Cap

   8.5(c)

Closing

   2.2(a)

Closing Date

   2.2(a)

Closing Date Statement

   3.2(b)(i)

Company

   Recitals

Damages

   8.1

Debt Commitment Letter

   5.4(b)

Debt Financing

   5.4(b)

Debt Financing Documents

   6.10(a)

Debt Financing Proceeds

   5.4(b)

Debt Financing Source

   5.4(b)

Designated Reps

   8.4

DHX

   Preamble

End Date

   9.1(b)(ii)

Equity Issuance

   6.10(a)

ERISA

   4.16

Estimated Working Capital

   3.2(a)(i)

Extension Condition

   2.2(a)

Financial Statements

   4.5(a)

Final Determination

   8.7

Flow-Through Returns

   6.7(b)(i)

Fundamental Reps

   8.4

Iconix

   Preamble

Interests

   Recitals

Interests Assignment

   2.2(b)(i)

Knowledge of the Purchaser

   1.5

Knowledge of the Seller

   1.5

Material Contract

   4.11(a)

Misdirected Payment

   6.13

Non-Flow-Through Returns

   6.7(b)(ii)

Peanuts Adjustment

   3.2(a)(ii)

Purchase

   Recitals

Purchaser

   Preamble

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-8-


Purchaser Disclosure Letter

   Article V

Purchaser Indemnified Persons

   8.1

Releasee

   10.12

Releasor

   10.12

Seller

   Preamble

Seller Disclosure Letter

   Article IV

Seller Indemnified Persons

   8.3

Seller Software

   4.13(j)

Seller Tax Matter

   6.7(b)(iii)

Tax Ruling

   4.12(h)

Transfer Taxes

   6.7(a)

1.3    Construction. In this Agreement, unless the context otherwise requires:

(a)    references to “writing” or comparable expressions include a reference to facsimile transmission or comparable means of communication (including electronic mail, provided that the sender complies with the provisions of Section 10.3);

(b)    the phrases “delivered” or “made available” shall mean that the information referred to has been physically or electronically delivered to the relevant parties (including, in the case of “made available” to Purchaser or its Representatives, material that has been posted, retained and thereby made available to Purchaser or its Representatives through any on-line “virtual data room” established by Seller or any of its Representatives);

(c)    words expressed in the singular number shall include the plural and vice versa; words expressed in the masculine shall include the feminine and neuter gender and vice versa;

(d)    references to Articles, Sections, Sections of the Seller Disclosure Letter, Sections of the Purchaser Disclosure Letter, Exhibits, the Preamble and Recitals are references to articles, sections, exhibits, the preamble and recitals of this Agreement, and the disclosure letters delivered with respect to this Agreement, and the descriptive headings of the several Articles and Sections of this Agreement, the Seller Disclosure Letter and the Purchaser Disclosure Letter (as applicable) are inserted for convenience only, do not constitute a part of this Agreement and shall not affect in any way the meaning or interpretation of this Agreement;

(e)    references to “day” or “days” are to calendar days and whenever any action must be taken under this Agreement on or by a day that is not a Business Day, then that action may be validly taken on or by the next day that is a Business Day;

(f)    the words “hereof”, “herein”, “hereto” and “hereunder”, and words of similar import, shall refer to this Agreement as a whole and not to any provision of this Agreement;

(g)    this “Agreement” or any other agreement or document shall be construed as a reference to this Agreement or, as the case may be, such other agreement or document as the same may have been, or may from time to time be, amended, varied, novated or supplemented;

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-9-


(h)    “include”, “includes”, and “including” are deemed to be followed by “without limitation” whether or not they are in fact followed by such words or words of similar import; and

(i)    references to “Dollars”, “dollars” or “$”, without more are to the lawful currency of United States of America.

1.4    Exhibits and the Disclosure Letters. The Exhibits, the Seller Disclosure Letter and the Purchaser Disclosure Letter are incorporated into and form an integral part of this Agreement.

1.5    Knowledge. When any representation, warranty, covenant or agreement contained in this Agreement is expressly qualified by reference to the “Knowledge of the Seller” or words of similar import, it shall mean the actual knowledge of the individuals set forth in Section 1.5 of the Seller Disclosure Letter, after reasonable inquiry. When any representation, warranty, covenant or agreement contained in this Agreement is expressly qualified by reference to the “Knowledge of the Purchaser” or words of similar import, it shall mean the actual knowledge of the individuals set forth in Section 1.5 of the Purchaser Disclosure Letter, after reasonable inquiry. For purposes of this Section 1.5, the “reasonable inquiry” of a designated individual need not include inquiries made to unaffiliated third parties.

ARTICLE II

SALE OF INTERESTS; CLOSING

2.1    Sale of Interests. On the terms and subject to the conditions of this Agreement, Purchaser agrees to purchase from Seller, and Seller agrees to sell, convey, transfer, assign and deliver to Purchaser, at the Closing, Seller’s right, title and interest to the Interests, free and clear of any Liens (except for restrictions arising under applicable federal, state or foreign securities Laws).

2.2    Closing; Closing Deliverables.

(a)    Subject to the satisfaction or waiver of all of the conditions set forth in Article VII, the closing of the Purchase (the “Closing”) shall take place at the offices of White & Case LLP, 1221 Avenue of the Americas, New York, New York, 10020-1095, as soon as practicable, but in any event not later than two (2) Business Days after the last of the conditions set forth in Article VII is satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions), or at such other time, date or place as the parties hereto shall agree in writing. Such date is herein referred to as the “Closing Date”. If, however, (x) the conditions set forth in Article VII have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions) and (y) Purchaser has been using its commercially reasonable best efforts to consummate the Purchase and the Debt Financing, and (z) notwithstanding such efforts, Purchaser has not been able to consummate the

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-10-


Debt Financing prior to the Closing Date (subsections (x), (y), and (z), collectively, the “Extension Conditions”), then by no later than one (1) Business Day after the last of the conditions set forth in Article VII is satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions), Purchaser may request that the Closing Date be adjourned to a date no later than July 7, 2017, in which case the Closing Date shall be amended accordingly to be such date or such other time, date or place as the parties hereto shall agree in writing (it being understood that under no circumstances shall the Closing occur later than July 7, 2017 if the conditions set forth in Article VII have been satisfied or waived at any time prior to July 7, 2017). Notwithstanding any provision to the contrary contained herein, if Purchaser adjourns the original Closing Date in accordance with the terms hereof, any failure of any of the conditions to Closing set forth in Section 7.2(b) to no longer be satisfied at any time on or after the original Closing Date shall not entitle Purchaser to fail to close on or prior to the amended Closing Date (it being understood that Purchaser shall be required to close on or prior to the amended Closing Date as if the failure of any such conditions to Closing had not occurred).

(b)    At the Closing, Seller shall deliver or cause to be delivered to Purchaser:

(i)    a duly executed assignment and assumption agreement transferring all right, title and interest in and to the Interests to Purchaser, in the form attached hereto as Exhibit B (“Interests Assignment”);

(ii)    written releases, in form and substance reasonably satisfactory to Purchaser, evidencing the release of all Liens with respect to the Interests;

(iii)    a certificate signed by an authorized officer of Seller, dated as of the Closing Date, confirming the matters set forth in Sections 7.2(a) and 7.2(b);

(iv)    a certificate of the Secretary or an Assistant Secretary (or of another Person responsible for the duties typically performed by a Secretary) of Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the members, managers or other governing body of Seller, authorizing the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, and that such resolutions are in full force and effect;

(v)    a release, duly executed by Seller, in the form attached hereto as Exhibit A;

(vi)    a duly executed copy of the Transition Services Agreement;

(vii)    a non-foreign person affidavit from Seller, dated as of the Closing Date, pursuant to Section 1445 of the Code provided that the failure to deliver such non-foreign person affidavit shall not be a condition to Closing under Section 7.2 of this Agreement and Purchaser’s sole remedy in the event Seller fails to deliver such affidavit shall be to make a proper withholding of Tax to the extent required by Section 1445 of the Code; and

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-11-


(viii)    resignations of each of the members of the board of directors or equivalent governing body and each of the officers of the Company.

(c)    At the Closing, Purchaser shall deliver or cause to be delivered to Seller:

(i)    the Purchase Price, pursuant to Section 3.1;

(ii)    a duly executed copy of the counterpart signature page to the Transition Services Agreement;

(iii)    a certificate signed by an authorized officer of Purchaser, dated as of the Closing Date, confirming the matters set forth in Sections 7.3(a) and 7.3(b); and

(iv)    a duly executed counterpart signature page to the Interests Assignment.

ARTICLE III

PURCHASE PRICE

3.1    Purchase Price; Delivery of Funds. At the Closing, in full consideration for the sale and transfer by Seller of the Interests, Purchaser shall pay to Seller an amount equal to the Purchase Price. The Purchase Price shall be made by wire transfer of immediately available funds to one or more accounts that have been designated by Seller in writing to Purchaser at least two Business Days prior to the Closing.

3.2    Working Capital Adjustment.

(a)    Closing Adjustment.

(i)    Seller shall prepare and deliver to Purchaser, at least five (5) Business Days prior to the Closing Date, a written notice setting forth Seller’s good faith estimate of the Closing Working Capital (the “Estimated Working Capital”), which notice shall contain an estimated balance sheet of the Business as of the Closing Date (without giving effect to the transactions contemplated herein) and a calculation of the Estimated Working Capital. The calculation of the Estimated Working Capital shall be prepared in the manner set forth in Section 3.2(a)(i) of the Peanuts Transaction Agreement.

(ii)    The Estimated Working Capital determined pursuant to this Section 3.2(a) shall be used to determine the “Closing Adjustment” pursuant to and as defined in Section 3.2(a)(ii) of the Peanuts Transaction Agreement (such amount, the “Peanuts Adjustment”).

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-12-


(b)    Post-Closing Adjustment.

(i)    Purchaser shall prepare and deliver to Seller within ninety (90) calendar days following the Closing Date a statement setting forth its calculation of the Closing Working Capital, which statement shall contain a balance sheet of the Business as of the Closing Date (without giving effect to the transactions contemplated herein) and a calculation of the Closing Working Capital (the “Closing Date Statement”). The Closing Date Statement shall be prepared in the manner set forth in Section 3.2(b)(i) of the Peanuts Transaction Agreement.

(ii)    If Seller does not notify Purchaser in writing within forty-five (45) calendar days after Seller’s receipt of the Closing Date Statement that it disputes any of the information or calculations provided to Seller in the Closing Date Statement, the Closing Date Statement shall be final and conclusive. If Seller disagrees with any of the information or calculations provided by Purchaser in the Closing Date Statement, Seller may, within forty-five (45) calendar days after delivery of such statement to it, deliver a written notice to Purchaser stating the existence and nature of such disagreement. Any such notice of disagreement shall specify those items or amounts as to which Seller disagrees. If such notice of disagreement is delivered, the parties shall use their reasonable best efforts to reach agreement on the disputed items or amounts within ten (10) Business Days after Purchaser’s receipt of such notice. If the parties are unable to reach agreement on the disputed items within such period, then the issues in dispute will be submitted to a mutually agreed firm of nationally recognized independent certified public accountants (the “Accountants”) for review and resolution, with instructions to complete the review as promptly as practicable. Each party will furnish to the Accountants such workpapers and other documents and information relating to the disputed issues as the Accountants may request and are available to that party or its Affiliates (or its independent public accountants), and will be afforded the opportunity to present to the Accountants any material relating to the determination and to discuss the determination with the Accountants. The parties shall instruct the Accountants that their determination shall not result in a Peanuts Adjustment in an amount higher than the Peanuts Adjustment proposed by Seller (or its Affiliates) or an amount lower than the Peanuts Adjustment proposed by Purchaser. The resolution of the Accountants in accordance with the provisions of this Section 3.2 shall be conclusive and binding on the parties. Seller and Purchaser shall each pay one-half of the fees and expenses charged by the Accountants.

(iii)    The Closing Working Capital determined pursuant to this Section 3.2(b) shall be used to determine whether there is a “Working Capital Deficiency” or a “Working Capital Excess” (as such terms are defined in the Peanuts Transaction Agreement) pursuant to Section 3.2(b)(iii) of the Peanuts Transaction Agreement.

(c)    Adjustments for Tax Purposes. Any payments made pursuant to this Section 3.2 shall be treated as an adjustment to the Purchase Price by the parties for Tax purposes, unless otherwise required by Law.

3.3    DHX Parent Guaranty. DHX is the ultimate parent company with respect to Purchaser and has significant interest in ensuring that it and Purchaser receive the benefit of the terms of this Agreement. As an inducement to Seller to enter into this Agreement, DHX has

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-13-


agreed to guarantee, and does hereby absolutely and unconditionally guarantee, the full and prompt performance of all obligations of Purchaser pursuant to Sections 3.1, 3.2, 5.4, 6.10, 6.11, 6.13, 8.3 and 10.10 of this Agreement and the Transition Services Agreement. Notwithstanding any provision to the contrary contained herein, under no circumstances shall the maximum amount payable by DHX hereunder exceed the amount of the Purchaser’s liability under this Agreement, which for the avoidance of doubt includes full payment of the Purchase Price and any fees and costs payable under the Transition Services Agreement.

3.4    Iconix Parent Guaranty. Iconix is the ultimate parent company with respect to Seller and has significant interest in ensuring that it and Seller receive the benefit of the terms of this Agreement. As an inducement to Purchaser to enter into this Agreement, Iconix has agreed to guarantee, and does hereby absolutely and unconditionally guarantee, the full and prompt performance of all payment obligations of Seller pursuant to Sections 3.2, 8.1 and 8.2 of this Agreement. This is a guaranty of payment only, and not of performance of non-payment obligations. Notwithstanding any provision to the contrary contained herein, under no circumstances shall the maximum amount payable by Iconix hereunder exceed the amount of the Seller’s liability under this Agreement.

3.5    Purchase Price Allocation.

(a)    The Purchase Price shall be allocated for U.S. federal income tax purposes (and any similar provision of state, local or foreign Law) among the assets of the Company in the manner required by Section 1060 of the Code (the “Allocation”). Within ninety (90) days following the Closing Date, Purchaser shall prepare and deliver to Seller for its review and approval IRS Form 8594 and any required exhibits thereto, setting forth the Allocation. Seller shall notify Purchaser of any objections to the Allocation within thirty (30) days of receipt of the Allocation. If no such objections are made within such thirty (30)-day period, the Allocation shall become final. If Seller notifies Purchaser within such thirty (30)-day period that it objects to one or more items reflected on the Allocation, Seller and Purchaser shall negotiate in good faith to resolve such dispute. If Seller and Purchaser fail to resolve any such dispute within thirty (30) days of Purchaser’s receipt of Seller’s notice, then Seller and Purchaser shall submit the items of the Allocation in dispute for resolution to an independent valuation or accounting firm of international reputation mutually acceptable to Seller and Purchaser, which shall, as soon as practicable after such submission, determine and report to Seller and Purchaser its resolution of the Allocation. The report of such firm shall be final and binding upon the parties hereto. The fees for such firm shall be borne equally between Seller, on the one hand, and Purchaser, on the other hand.

(b)    Each of Purchaser and Seller and their respective Affiliates shall, except to the extent required otherwise by a “determination,” as defined in Section 1313 of the Code, (i) be bound by the Allocation, as finally determined, for all Tax purposes; (ii) prepare and file all Returns in a manner consistent with the Allocation, as finally determined; and (iii) take no position inconsistent with the Allocation, as finally determined, in any Return, Tax Contest or otherwise. In the event that the Allocation, as finally determined, is disputed by any Taxing Authority, the party receiving notice of such dispute shall promptly notify and consult with the other parties and keep the other parties apprised of material developments concerning resolution of such dispute. Each of Purchaser and Seller hereby agrees to revise the Allocation to reflect any adjustment to the Purchase Price pursuant to this Agreement.

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-14-


ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF SELLER

Except as set forth in the disclosure letter delivered by Seller to Purchaser (the “Seller Disclosure Letter”) concurrently with the execution of this Agreement (it being agreed that any matter disclosed pursuant to any section of the Seller Disclosure Letter shall be deemed disclosed for purposes of any other section of the Seller Disclosure Letter to the extent the applicability of the disclosure to such other section is reasonably apparent on the face of such disclosure), Seller hereby represents and warrants to Purchaser as follows:

4.1    Due Organization, Good Standing. Seller is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or formation.

4.2    Authorization; Noncontravention.

(a)    Seller has the requisite limited liability company power and authority, and has taken all limited liability company action necessary to execute and deliver this Agreement and all other instruments and agreements to be delivered by Seller as contemplated hereby and thereby, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution, delivery and performance by Seller of this Agreement and all other instruments and agreements to be delivered by Seller as contemplated hereby, the consummation by Seller of the transactions contemplated hereby and thereby and the performance of its obligations hereunder and thereunder have been, and in the case of documents required to be delivered at the Closing will be, duly authorized and approved by all necessary limited liability company, member or other action. This Agreement has been, and all other instruments and agreements to be executed and delivered by Seller as contemplated hereby will be, duly executed and delivered by Seller. Assuming that this Agreement and all such other instruments and agreements constitute valid and binding obligations of Purchaser and each other Person (other than Seller) party thereto, this Agreement and all such other instruments and agreements constitute valid and binding obligations of Seller enforceable against such Person in accordance with the terms thereof, except to the extent that such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether considered in a proceeding in equity or at law).

(b)    The execution and delivery of this Agreement and all other instruments and agreements to be delivered by Seller as contemplated hereby do not, and the consummation of the transactions contemplated hereby and thereby will not (i) conflict with any of the provisions of the certificate of incorporation or bylaws or similar governance documents of Seller or the Company, in each case as amended to the date of this Agreement, (ii) subject to receipt of the consents, approvals, authorizations, declarations, filings and notices set forth in Section 4.2(b) and Section 4.6 of the Seller Disclosure Letter, conflict with or result in a breach of, or constitute a default under, or result in the acceleration of any obligation or loss of any

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-15-


benefits under, any Material Contract or (iii) subject to (x) the applicable requirements of the HSR Act and any other applicable Antitrust Laws and (y) receipt of the consents, approvals, authorizations, declarations, filings and notices referred to in Section 4.2(b) and Section 4.6 of the Seller Disclosure Letter, contravene any Law or any Order applicable to Seller or the Company, except, in the case of clauses (ii) and (iii) above, for such conflicts, breaches, defaults, consents, approvals, authorizations, declarations, filings or notices which have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

4.3    Title to Interests. Except as set forth in Section 4.3 of the Seller Disclosure Letter, Seller has good and valid title to the Interests, free and clear of all Liens (except for restrictions arising under applicable federal, state or foreign securities Laws). Other than this Agreement, there are no rights, agreements, arrangements or commitments to which Seller is party relating to the Interests or obligating Seller to offer, issue, sell, transfer, vote or otherwise dispose of or sell, or purchase or acquire, any Interests.

4.4    Company; Capitalization.

(a)    The Company is a limited liability company duly formed, validly existing and in good standing under the Laws of the State of Delaware and has all requisite limited liability company or other requisite power and authority to own, lease and operate its properties and assets and to carry on its business as now being conducted. The Company is duly qualified or licensed to do business and is in good standing (or the equivalent thereof) in each jurisdiction in which the character or location of the properties owned, leased or operated by the Company or the nature of the business conducted by the Company makes such qualification necessary, except such jurisdictions where the failure to be so qualified or licensed and in good standing does not and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Except as set forth in Section 4.4(a) of the Seller Disclosure Letter, the Company does not own, directly or indirectly, any capital stock or other equity, ownership, proprietary or voting interest in any Person.

(b)    The issued and outstanding Equity Interests of the Company (including the holders thereof) is set forth in Section 4.4(b) of the Seller Disclosure Letter. All of the Interests have been duly authorized and validly issued and, to the extent such concepts are applicable thereto, are fully paid and nonassessable, and are not subject to, and were not issued in violation of, any preemptive or similar rights. There are no outstanding options, warrants or other rights to purchase, or any authorized stock appreciation, phantom stock, profit participation or similar rights with respect to the capital stock of or other Equity Interests or voting securities in, the Company. The Company has no authorized or outstanding bonds, debentures, notes or other indebtedness the holders of which have the right to vote (or convertible into, exchangeable for, or evidencing the right to subscribe for or acquire securities having the right to vote) with the equity holders of the Company on any matter. There are no irrevocable proxies and no voting agreements with respect to any capital stock of, or other Equity Interests or voting securities in, the Company.

(c)    The Company has no Subsidiaries.

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-16-


4.5    Financial Statements; Undisclosed Liabilities.

(a)    The unaudited proforma balance sheet of the Business as of December 31, 2015, and the related unaudited proforma statements of earnings for the year ended December 31, 2015, and the Balance Sheet and the related unaudited proforma statements of earnings for the 12 months then ended, are set forth in Section 4.5(a) of the Seller Disclosure Letter (collectively, the “Financial Statements”).

(b)    The Financial Statements have been prepared from books and records maintained by Seller in accordance with GAAP. The Financial Statements fairly present, in all material respects, the financial position of the Business, at the applicable balance sheet dates indicated, and the results of operations of the Business for the applicable periods then ended.

(c)    Except (i) as set forth in Section 4.5(c) of the Seller Disclosure Letter, (ii) for liabilities not material in amount or reflected or reserved against in the Financial Statements, (iii) for liabilities (including accounts payable and accrued expenses) incurred in the ordinary course of business since December 31, 2016 (the “Balance Sheet Date”) or included in Closing Working Capital, and (iv) for executory Liabilities arising under any Material Contract (other than as a result of a breach thereof), the Company is not subject to any liabilities of any nature (whether known or unknown and whether absolute, accrued, contingent or otherwise).

4.6    Consents and Approvals. Assuming all required Antitrust Filings are made and any waiting periods thereunder have been terminated or expired and any consents required thereunder have been obtained, except as set forth in Section 4.6 of the Seller Disclosure Letter, no consent of or filing with any Governmental Entity must be obtained or made by Seller in connection with the execution and delivery of this Agreement by Seller or the consummation by Seller of the transactions contemplated by this Agreement, except for any consents, approvals, authorizations or filings which have been obtained or made or, if not made or obtained, have not had or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and would not prevent, materially alter or delay any of the transactions contemplated by this Agreement.

4.7    Title to Non-IP Assets. Except as set forth in Section 4.7 of the Seller Disclosure Schedule, (a) the Company has good and valid title to, and/or a valid right to use, all of the assets of the Business reflected in the Financial Statements or acquired after the Balance Sheet Date, other than the IP Assets and assets sold or disposed of in the ordinary course of business since the Balance Sheet Date, and (b) no Affiliate of Seller, other than the Company, owns any IP Assets.

4.8    Intentionally Omitted.

4.9    Litigation and Other Proceedings; Orders.

(a)    Except (x) as set forth in Section 4.9 of the Seller Disclosure Letter or (y) as disclosed in the SEC Reports, and except with respect to any Proceedings related to intellectual property rights (addressed in Section 4.13 below), there is no Proceeding pending or, to the Knowledge of the Seller, threatened:

(i)    that has been commenced by or against the Company which would, individually or in the aggregate, reasonably be expected to result in material costs or liabilities to the Business, taken as a whole; or

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-17-


(ii)    against the Company or Seller that challenges, or would reasonably be expected to prevent, materially delay, make illegal or otherwise materially interfere with, the Purchase.

(b)    Except (x) as set forth in Section 4.9 of the Seller Disclosure Letter (y) as disclosed in the SEC Reports, and except with respect to any Proceedings related to intellectual property rights (addressed in Section 4.13 below), there is no Proceeding pending or, to the Knowledge of the Seller, threatened against, or any contingent liability with respect to, any officer, director, member or manager of the Company, or any respective successors or assigns, that would give rise to any right to indemnification by the Company which would, individually or in the aggregate, reasonably be expected to result in material costs or liabilities to the Business.

(c)    Except (x) as set forth in Section 4.9 of the Seller Disclosure Letter, or (y) as has not had or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and except with respect to any Proceedings related to intellectual property rights (addressed in Section 4.13 below):

(i)    There is no Order to which the Company is subject; and

(ii)    Seller is not subject to any Order that relates to the Business.

4.10    Absence of Certain Changes and Events. Except as set forth in Section 4.10 of the Seller Disclosure Letter or as contemplated by this Agreement, since the Balance Sheet Date, Seller and the Company have conducted the Business only in the ordinary course and there has not or have not been any:

(a)    liabilities (whether absolute, accrued or contingent and whether due or to become due) incurred by or with respect to the Business, except (i) as disclosed in Section 4.5(c) of the Seller Disclosure Letter, (ii) executory Liabilities arising under any Material Contract entered into since the Balance Sheet Date (other than as a result of a breach thereof) (iii) as incurred in the ordinary course of business, or (iv) for liabilities not material in amount or reflected or reserved against in the Financial Statements;

(b)    damage to or destruction or loss of any material asset or material property owned or used by the Business, whether or not covered by insurance, other than in the ordinary course of business;

(c)    (i) termination prior to the expiration of its term, or receipt of written notice of termination prior to the expiration of its term, of any Material Contract, where such termination would reasonably be expected to result in material costs or liabilities to the Business taken as a whole, or (ii) entry into, amendment or modification of or settlement or waiver of any rights under any Material Contract, other than in the ordinary course of business;

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-18-


(d)    sale, assignment, exclusive license or transfer of any Owned IP Assets with a value to the Business in excess of [***];

(e)    (i) sale, lease or other disposition of any tangible property owned by or used in the conduct of the Business, or (ii) the imposition of any Lien, on any asset or property of the Business and owned by the Company, including the Owned IP Assets, except, in each case of (i) and (ii), for any such sale, lease, other disposition or Lien as has not had or would not, individually or in the aggregate, reasonably be expected to result in material costs or liabilities to the Business, taken as a whole;

(f)    cancellation, settlement or waiver of any claims or rights with a value to the Business in excess of [***];

(g)    material change in the accounting methods used by Seller or the Company in operating the Business or any material Tax election;

(h)    (i) acceleration of the collection of receivables or other amounts due from Third Parties or (ii) delay of the payment of any payables or other amounts owed to Third Parties, other than in the ordinary course of business consistent with past practice; or

(i)    agreement by Seller or the Company to do any of the foregoing.

4.11    Material Contracts.

(a)    Section 4.11(a) of the Seller Disclosure Letter contains a complete and accurate list, as of the date hereof, of the following Contracts (each Contract required to be set forth in Section 4.11(a) of the Seller Disclosure Letter, a “Material Contract”) to which the Company is party:

(i)    each License Agreement providing for guaranteed payments by the licensee in excess of [***] in any of calendar years 2015 through 2017;

(ii)    each agent or similar agreement under which a Third Party has been granted the right to solicit License Agreements or syndication agreements for the Business;

(iii)    each license agreement, including any software license agreements, under which the Company is a licensee (other than “off-the-shelf” or other non-customized software or subscriptions generally commercially available for a license fee of no more than [***] per year);

(iv)    each Contract (other than License Agreements) providing for the sale, lease or other disposition at any time after the date hereof of tangible assets of the Business with a value in excess of [***];

(v)    each Contract relating to the Business that requires the expenditure of more than [***] by the Company in the aggregate after the date hereof;

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-19-


(vi)    each written guaranty or other similar undertaking with respect to contractual performance granted by the Company or otherwise binding on the Business;

(vii)    each Contract granting a Third Party an exclusive license to rights in the IP Assets, other than immaterial licenses; and

(viii)    each amendment, supplement or modification in respect of any of the foregoing.

(b)    Except as set forth in Section 4.11(b) of the Seller Disclosure Letter and except for those Contracts that will, after the date hereof but prior to Closing, expire in accordance with their terms, each Material Contract is in full force and effect and is valid and enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization or similar laws relating to creditors’ rights generally or by equitable principles or by any other laws of general application.

(c)    Except as set forth in Section 4.11(c) of the Seller Disclosure Letter:

(i)    to the Knowledge of the Seller, each of Seller and the Company is in compliance, in all material respects, with the terms and requirements of each Material Contract;

(ii)    to the Knowledge of the Seller, no event has occurred or circumstance exists that (with or without notice or lapse of time) does or would reasonably be expected to contravene, conflict with, or result in a violation or breach of, or gives or would give any other Person the right to declare a default under, or to accelerate the maturity or performance of, any Material Contract;

(iii)    neither Seller nor the Company has received from any Person, at any time since March 3, 2015, any written notice or other communication regarding any actual, alleged, possible or potential violation or breach of, or default under, any Material Contract that would be reasonably expected to result in material costs or liabilities to the Company;

(iv)    to the Knowledge of the Seller, no party to any Material Contract in effect on the date hereof has given to the Company, and the Company has not given, written notice of its intention to cancel, terminate or fail to renew any Material Contract; and

(v)    there are no renegotiations of, or attempts to renegotiate or outstanding rights to renegotiate, any material amounts paid or payable to the Company under any current or completed Material Contract in effect on the date hereof with any Person having the contractual or statutory right to demand or require such renegotiation, and no such Person has made any written demand for such renegotiation.

(d)    The Company has not entered into any Material Contract with respect to which the performance thereunder by any of them, acting alone or in connection with any other Person, or the payment or promise of any consideration thereunder, would violate any Law or Order.

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-20-


4.12    Tax Matters. Except as set forth in Section 4.12 of the Seller Disclosure Letter, or, in the case of subsections (b) to (i) below, as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect:

(a)    The Company has been classified either as a partnership or disregarded as an entity separate from its owner for United States federal income tax purposes since the date of formation or organization of the Company.

(b)    The Company has filed all material Returns required to have been filed, which Returns are true, correct, and complete in all material respects and all such Returns disclose all Taxes required to be paid for the periods covered thereby. All Taxes due and owing by the Company (whether or not shown on any Tax Return) have been paid. There are no Liens for Taxes (other than Permitted Liens) upon any of the assets of the Company. The Company has withheld and paid all Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other Third Party. No claim has been made by a Governmental Entity in a jurisdiction where the Company does not file Returns that the Company is or may be subject to taxation by that jurisdiction.

(c)    The unpaid Taxes of the Company (i) did not, as of the Balance Sheet Date, exceed the amount of Tax liability (but not including any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the Financial Statements (rather than in any notes thereto) and (ii) will not exceed that amount as adjusted for the passage of time through the Closing Date and in connection with the consummation of the transactions contemplated hereunder, as determined in accordance with the past custom and practice of the Company in filing its Returns.

(d)    With respect to the Company for taxable periods ended on or after March 3, 2015, no Tax Returns have been audited or currently are the subject of audit. There is no dispute or claim concerning any Tax liability of the Company claimed or raised in writing by any Governmental Entity. The Company has not waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency, except with respect to any waivers or extensions that have expired.

(e)    The Company has not been a United States real property holding corporation within the meaning of IRC §897(c)(2) during the applicable period specified in IRC §897(c)(1)(A)(ii). The Company (i) has not been a member of an affiliated group filing a consolidated federal income Tax Return (other than as a member of an affiliated group filing a consolidated federal income Tax Return, the common parent of which is Iconix); (ii) has no liability for the Taxes of any other Person as a transferee or successor, by contract or otherwise, including liability in accordance with the provisions set forth in Treasury Regulation Section 1.1502-6 (or any corresponding provision of state, local, or foreign Tax law); or (iii) is not a party to any Tax sharing, Tax allocation or other agreement pursuant to which it has liability for Taxes of another Person (other than an agreement the principal subject matter of which is not Taxes).

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-21-


(f)    The Company will not be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any:

(i)    change in method of accounting for a taxable period ending on or prior to the Closing Date;

(ii)    “closing agreement” as described in IRC §7121 (or any corresponding or similar provision of state, local or non-U.S. income Tax law) executed on or prior to the Closing Date;

(iii)    installment sale or open transaction disposition made on or prior to the Closing Date; or

(iv)    prepaid amount received on or prior to the Closing Date.

(g)    The Company has not distributed stock of another corporation and has not had its stock distributed by another corporation, in a transaction that was purported or intended to be governed in whole or in part by IRC §355 or IRC §361.

(h)    Seller has made available to Purchaser prior to the date hereof true, correct and complete copies of all material Returns and examination reports and all statements of deficiencies relating to Taxes of the Company for taxable periods ending on or after March 3, 2015. The Company has not received any Tax Ruling that would have a continuing effect after the Closing Date. For purposes of the preceding sentence, the term “Tax Ruling” shall mean written rulings of a Governmental Entity relating to Taxes. No power of attorney currently in force has been granted by the Company concerning any Tax matter.

(i)    The Company is not and has not been a party to any “listed transaction,” as defined in IRC §6707A(c)(2) and Reg. §1.6011-4(b)(2).

(j)    The representations and warranties in this Section 4.12 are the sole and exclusive representations and warranties of Seller concerning Tax matters of the Company. Notwithstanding any provision in this Agreement to the contrary, Seller makes no representation as to the amount of, or limitations on, any net operating losses, tax credits or other tax attributes that the Company may have.

4.13    Intellectual Property.

(a)    Section 4.13(a) of the Seller Disclosure Letter sets forth an accurate and complete list of all registered Trademarks owned by the Company, and all pending applications that have been filed by the Company for the registration of Trademarks. With respect to such registered Trademarks (i) all registration, maintenance and renewal fees required by applicable Law to be paid prior to the date hereof have been paid, and (ii) all documents and certificates required by Law to be filed prior to the date hereof have been filed with the relevant trademark

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-22-


authorities for the purpose of maintaining such registered Trademarks. All registration agreements with respect to material Internet domain names that are included within the Owned IP Assets are in full force and effect.

(b)    Section 4.13(b) of the Seller Disclosure Letter lists the registration numbers of all copyright registrations and renewals for the Owned IP Assets, including numbers of U.S. copyright registrations obtained for any animated television program or documentary included in the Owned IP Assets.

(c)    Except as set forth in Section 4.13(c) of the Seller Disclosure Letter, and subject to Permitted Liens and the provisions of applicable Laws and Orders, (i) the Company (A) owns and possesses all right, title and interest in and to the Owned IP Assets, and (B) possesses the right to use, pursuant to a license, sublicense or other legal rights, the Licensed IP Assets, and (ii) the registered or issued Owned IP Assets are valid, subsisting, enforceable and in full force and effect. To the Knowledge of the Seller, the current use by the Company in the Business of the IP Assets does not violate, infringe, or breach, and, since March 3, 2015 has not violated, infringed, or breached, any Intellectual Property right of any Third Party.

(d)    Except as set forth in Section 4.13(d) of the Seller Disclosure Letter, since March 3, 2015, no written claims have been received by the Company and, to the Knowledge of the Seller, no verbal claims have been received, from any other Person to the effect that the Company’s use of the IP Assets infringes, violates or breaches any Intellectual Property right, of such other Person, except for infringements, violations or breaches which, if proved, would not, individually or in the aggregate, reasonably be expected to result in material costs or liabilities to the Business.

(e)    The Company has taken commercially reasonable measures consistent with reasonable industry practice to enforce its Intellectual Property rights in and to the IP Assets, and to the Knowledge of the Seller, there is no infringement or violation of any of the Owned IP Assets by a Third Party which has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

(f)    Except as set forth in Section 4.13(f) of the Seller Disclosure Letter, no Orders to which the Company is a party limit or restrict the Company’s use of the IP Assets in the Business, except for Orders which, individually or in the aggregate, would not reasonably be expected to result in material costs or liabilities to, or have a Material Adverse Effect.

(g)    Except as set forth in Section 4.13(g) of the Seller Disclosure Letter, the consummation of the Purchase will not (i) result in the loss or impairment of any rights to use any of the IP Assets that the Company had in any of such IP Assets immediately prior to the Closing Date or (ii) obligate Purchaser to pay any royalties or other amounts to any other Person in excess of the amounts that would have been payable by the Company for the same use absent the consummation of the Purchase, except where such loss or impairment (in the case of clause (i)) or obligation to pay any royalties or other amounts (in the case of clause (ii)), would not, individually or in the aggregate, reasonably be expected to result in material costs or liabilities to, or have a Material Adverse Effect.

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-23-


(h)    The Owned IP Assets are free and clear of all Liens, except (i) as provided under applicable Law, (ii) as set forth on Section 4.13(h) of the Seller Disclosure Letter, (iii) Liens that do not interfere with the use or detract from the value of such Owned IP Assets, or (iv) Permitted Liens.

(i)    Section 4.13(i) of the Seller Disclosure Letter sets forth a complete and accurate list of all material software owned by the Company and used by the Company in the Business (“Seller Software”). Subject to provisions of applicable Law and except as set forth on Section 4.13(j) of the Seller Disclosure Letter, the Company is the sole and exclusive owner of all right and title and interest in and to the Seller Software, free and clear of Liens, other than Permitted Liens.

4.14    Compliance with Laws. The Company holds all Governmental Authorizations necessary for the lawful conduct of the Business, and each such Governmental Authorization is valid and in full force and effect in all material respects. Except as disclosed in the SEC Reports, (a) the Company is not in violation of any Governmental Authorizations or Law or Order, and (b) the Business is being and has been, since March 3, 2015, conducted in compliance in all material respects with all applicable Laws and Orders.

4.15    Finders; Brokers. Except as set forth on Section 4.15 of the Seller Disclosure Letter, no agent, broker, Person or firm acting on behalf of the Company, Seller or any of their respective Affiliates is, or shall be, entitled to any broker’s fees, finder’s fees or commissions from Purchaser in connection with this Agreement or any of the transactions contemplated hereby.

4.16    Employees and Benefit Plans. The Company has not at any time had any employees or maintained any deferred compensation, incentive compensation, stock purchase, stock option or other equity compensation plan, program, agreement or arrangement; any severance or termination pay, medical, surgical, hospitalization, life insurance or other “welfare” plan, fund or program (within the meaning of Section 3(1) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)); any profit-sharing, stock bonus or other “pension” plan, fund or program (within the meaning of Section 3(2) of ERISA); any employment, termination or severance agreement; and any other employee benefit plan, fund, program, agreement or arrangement. The Company is not a party to any agreement, contract, arrangement, or plan that has resulted or would result, separately or in the aggregate, in the payment of any “excess parachute payment” within the meaning of IRC §280G (or any corresponding provision of state, local or non-U.S. Tax law). The Company has not at any time since March 3, 2015 sponsored, maintained, participated in or had any obligation to contribute to (or been under common control with an employer which sponsored, maintained, participated in or contributed to), or otherwise has any liability with respect to, any “defined benefit plan,” as defined in Section 3(35) of ERISA, a pension plan subject to the minimum funding standards of Section 302 of ERISA or Section 412 of the Code, or a “multiemployer plan,” as defined in Section 3(37) of ERISA. The Company does not have any liability for excise taxes under Code Section 4980H, nor, to the Knowledge of the Seller, do any facts exist that would give rise to any such liability.

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-24-


4.17    Certain Payments. Since March 3, 2015, neither the Company nor, to the Knowledge of the Seller, any agent, employee or other Person associated with or acting for or on behalf of the Company, has directly or indirectly (a) made any contribution, gift, bribe, rebate, payoff, influence payment, kickback or other payment to any Person, private or public, regardless of form, whether in money, property or services (i) to obtain favorable treatment in securing business for the Business, (ii) to pay for favorable treatment for business secured for the Business, or (iii) in violation of any Law or Order applicable to the Business, or (b) established or maintained any fund or asset owned or controlled by the Company that has not been recorded in the books and records of the Company.

4.18    Accounts Receivable. The accounts receivable that are reflected in the Financial Statements (collectively, the “Business Accounts Receivable”) include all accounts receivable for the Company and represent estimates in U.S. dollars of earned royalty payments or fixed-amount advance and guaranteed royalty payments to be made to the Company by licensees of the Business in the ordinary course consistent with past practice. Section 4.18 of the Seller Disclosure Letter contains a list, complete and accurate in all material respects, of the Business Accounts Receivable as of the Balance Sheet Date, derived from the books and records of the Company, consistent with past practice. The reserves for bad debt shown on the Financial Statements are, to the Knowledge of the Seller, adequate and calculated consistently with past practice. All Business Accounts Receivable have arisen in the ordinary course of business consistent with past practice and are estimates of valid obligations due to the Company arising out of bona fide Contracts or other arrangements between the Company, on the one hand, and their respective counterparties, on the other hand.

4.19    Transactions with Affiliates. Except as described on Section 4.19 of the Seller Disclosure Letter and for the services to be provided temporarily under the Transition Services Agreement, there are no services currently being provided to the Business by Seller or any Affiliate of Seller that are material to the Business, and no contracts that are currently in effect between or among the Company and Seller or any Affiliate of Seller.

4.20    Insurance.

(a)    Seller has made available to Purchaser copies of all policies of insurance to which the Company is a party or under which the Company, or its affiliates, are covered. Such policies are in full force and effect as of the date hereof.

(b)    The Company has not claimed any losses for the current policy year or in any of the three (3) preceding policy years under any policy that provides coverage to the Company.

(c)    To the Knowledge of the Seller, the Company has not received any notice of refusal of coverage or any notice that a defense will be afforded with reservation of rights, or any notice of cancellation or any other indication that any insurance policy is no longer in full force or effect or will not be renewed or that the issuer of any policy is not willing or able to perform its obligations thereunder, any of which individually, or all of which in the aggregate, would have a Material Adverse Effect.

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-25-


4.21    No Material Adverse Effect. Since December 31, 2016 through the date of this Agreement, there has been no change, circumstance, occurrence, event, development or effect that, individually or in the aggregate, is, has or would reasonably be expected to have a Material Adverse Effect.

4.22    Exclusivity of Representations. THE REPRESENTATIONS AND WARRANTIES BY EACH SELLER CONTAINED IN ARTICLE IV CONSTITUTE THE SOLE AND EXCLUSIVE REPRESENTATIONS AND WARRANTIES OF SUCH SELLER TO PURCHASER IN CONNECTION WITH THE TRANSACTION CONTEMPLATED HEREBY, AND PURCHASER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE EXPRESS OR IMPLIED ARE SPECIFICALLY DISCLAIMED BY SELLER.

ARTICLE V

REPRESENTATIONS AND WARRANTIES OF PURCHASER

Except as set forth in the disclosure letter (the “Purchaser Disclosure Letter”) delivered by Purchaser to Seller concurrently with the execution of this Agreement (it being agreed that any matter disclosed pursuant to any section of the Purchaser Disclosure Letter shall be deemed disclosed for purposes of any other section of the Purchaser Disclosure Letter to the extent the applicability of the disclosure to such other section is reasonably apparent on the face of such disclosure), Purchaser hereby represents and warrants to Seller as follows:

5.1    Corporate Due Organization, Good Standing and Corporate Power of Purchaser. Purchaser is a limited liability company duly organized, validly existing and in good standing (or the equivalent thereof) under the Laws of the State of Delaware and has all requisite limited liability company power and authority to own, lease and operate its properties and to carry on its business as now being conducted. Purchaser is an indirect wholly-owned Subsidiary of DHX.

5.2    Authorization; Noncontravention.

(a)    Purchaser has the requisite corporate power and authority and has taken all corporate or other action necessary to execute and deliver this Agreement and all other instruments and agreements to be delivered by Purchaser as contemplated hereby, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution, delivery and performance by Purchaser of this Agreement and all other instruments and agreements to be delivered by Purchaser as contemplated hereby, the consummation by it of the transactions contemplated hereby and thereby and the performance of its obligations hereunder and thereunder have been, and in the case of documents required to be delivered at the Closing will be, duly authorized and approved by the board of directors of Purchaser. This Agreement has been, and all other instruments and agreements to be executed and delivered by Purchaser as contemplated hereby will be, duly executed and delivered by Purchaser. Assuming that this Agreement and all such other instruments and agreements constitute valid and binding obligations of Seller and each other Person (other than Purchaser) party thereto, this Agreement and all such other instruments and agreements constitute valid and

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-26-


binding obligations of Purchaser, enforceable against Purchaser in accordance with the terms thereof, except to the extent that such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether considered in a proceeding in equity or at law).

(b)    The execution and delivery of this Agreement and all other instruments and agreements to be delivered by Purchaser as contemplated hereby do not, and the consummation of the transactions contemplated hereby and thereby will not, (i) conflict with any of the provisions of the certificate of incorporation or by-laws or similar governance documents of Purchaser, in each case, as amended to the date of this Agreement, (ii) conflict with or result in a breach of, or constitute a default under, or result in the acceleration of any obligation or loss of any benefits under, any Contract or other instrument to which Purchaser is a party or by which Purchaser or any of its properties or assets are bound or (iii) subject to (x) the applicable requirements of the HSR Act and any other applicable Antitrust Laws and (y) receipt of the consents, approvals, authorizations, declarations, filings and notices referred to in Section 5.3 of the Purchaser Disclosure Letter, contravene any Law or any Order applicable to Purchaser or by which any of its properties or assets are bound, except in the case of clauses (ii) and (iii) above, for such conflicts, breaches, defaults, consents, approvals, authorizations, declarations, filings or notices which do not and would not reasonably be expected to, individually or in the aggregate, prevent, materially delay or impair Purchaser’s ability to consummate the transactions contemplated by this Agreement.

5.3    Consents and Approvals. Assuming all required Antitrust Filings are made and any waiting periods thereunder have been terminated or expired and any consents required thereunder have been obtained, except as set forth in Section 5.3 of the Purchaser Disclosure Letter, no consent of or filing with any Governmental Entity or any other Person must be obtained or made by Purchaser in connection with the execution and delivery of this Agreement by Purchaser or the consummation by Purchaser of the transactions contemplated by this Agreement, except for any consents, approvals, authorizations or filings, which have been obtained or made or, if not made or obtained, do not and would not reasonably be expected to, individually or in the aggregate, prevent, materially delay or impair Purchaser’s ability to consummate the transactions contemplated by this Agreement.

5.4    Available Funds.

(a)    Purchaser has, as of the date of this Agreement, committed financing and will have, on the Closing Date, unrestricted cash on hand and, if necessary, unrestricted cash available to it under credit facilities in place on the date hereof, sufficient to consummate the transaction contemplated hereby.

(b)    Concurrently with the execution of this Agreement, Purchaser has delivered to Seller true, correct and complete copies of an executed debt commitment letter and each executed fee letter and engagement letter associated therewith (provided, that provisions in the fee or engagement letter related solely to fees and economic terms (other than covenants) agreed to by the parties may be redacted), dated as of the date hereof (such commitment letter(s), including all exhibits, schedules, annexes, supplements and amendments thereto and each such

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-27-


fee letter and engagement letter, collectively, the “Debt Commitment Letter”), from Royal Bank of Canada and Jeffries Finance LLC (the “Debt Financing Source”) providing the terms and conditions upon which the Debt Financing Source has committed to provide up to six hundred fifteen million dollars ($615,000,000) (the “Debt Financing Proceeds”) of debt financing (the “Debt Financing”). The Debt Commitment Letter in the form so delivered is valid and in full force and effect with respect to Purchaser and, to the Knowledge of the Purchaser, each other party thereto, such commitments have not been withdrawn, terminated or otherwise amended or modified in any respect, and no event has occurred that, with or without notice, lapse of time or both, would constitute a default or breach on the part of Purchaser under any term or condition of the Debt Commitment Letter. The Debt Commitment Letter (together with the fee letter referred to therein) constitutes the entire and complete agreement between the parties thereto with respect to the financings contemplated thereby, and, except as set forth, described or provided for in the Debt Commitment Letter, (i) there are no conditions precedent to the respective obligations of the Debt Financing Source to provide the Debt Financing, and (ii) there are no contractual contingencies or other provisions under any agreement (including any side letters) relating to the transactions contemplated by this Agreement to which Purchaser or any of its Affiliates is a party that would permit the Debt Financing Source to reduce the total amount of the Debt Financing Proceeds available under the Debt Financing or impose any additional conditions precedent to the availability of the Debt Financing. Purchaser has fully paid any and all commitment fees, if any, or other fees required by the Debt Commitment Letter to be paid as of the date hereof. As of the date hereof, Purchaser has no reason to believe that any of the conditions to the Debt Financing will not be satisfied on a timely basis or that the funding contemplated in the Debt Financing will not be made available to Purchaser on a timely basis in order to consummate the transactions contemplated by this Agreement. The Debt Financing Proceeds available under the Debt Financing are sufficient to pay the Purchase Price and all of Purchaser’s and its Affiliates’ fees and expenses associated with the transaction contemplated in this Agreement in accordance with the terms hereof. The obligations of Purchaser under this Agreement are not contingent on the availability of financing.

5.5    Litigation. There is no action, suit, proceeding at law or in equity, or any arbitration by, before or against any Governmental Entity or any other Person pending, or, to the Knowledge of the Purchaser, threatened in writing, against or affecting Purchaser, or any of its properties or rights, which if determined adversely would reasonably be expected to, individually or in the aggregate, prevent, materially delay or impair Purchaser’s ability to consummate the transactions contemplated by this Agreement. Purchaser is not subject to any Order which seeks to or would reasonably be expected to, individually or in the aggregate, prevent, materially delay or impair Purchaser’s ability to consummate the transactions contemplated by this Agreement.

5.6    Finders; Brokers. Except as set forth in Section 5.6 of the Purchaser Disclosure Letter, no agent, broker, Person or firm acting on behalf of Purchaser or any of its Affiliates is or shall be entitled to any broker’s fees, finder’s fees or commissions from Seller or any of its Affiliates in connection with this Agreement or any of the transactions contemplated hereby.

5.7    Investigation and Acknowledgment by Purchaser. Purchaser has conducted its own independent investigation, verification, review and analysis of the Company and Business, results of operations, financial condition, software, technology and prospects of

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-28-


the Business, which investigation, review and analysis was conducted by Purchaser and its Affiliates and, to the extent Purchaser deemed appropriate, by Purchaser’s Representatives. Purchaser acknowledges that it and its Representatives have been provided adequate access to the personnel, properties, premises and records of the Business. Purchaser acknowledges that the representations and warranties contained in this Agreement are exclusive of any other representations and warranties, express or implied, and that neither Seller nor any of its Affiliates, Representatives or any other Person makes or has made any representation or warranty, either express or implied, as to the accuracy or completeness of any of the information provided or made available to Purchaser or any of its Affiliates and Representatives, except as and only to the extent expressly set forth in this Agreement and subject to the limitations and restrictions contained in this Agreement.

5.8    Exclusivity of Representations. THE REPRESENTATIONS AND WARRANTIES BY PURCHASER CONTAINED IN ARTICLE V CONSTITUTE THE SOLE AND EXCLUSIVE REPRESENTATIONS AND WARRANTIES OF PURCHASER TO SELLER IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY, AND SELLER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE EXPRESS OR IMPLIED ARE SPECIFICALLY DISCLAIMED BY PURCHASER.

ARTICLE VI

COVENANTS

6.1    Access to Information Concerning Properties and Records.

(a)    During the period from the date of this Agreement through and including the earlier of (i) the date this Agreement is terminated in accordance with Section 9.1 and (ii) the Closing Date, Seller shall, and shall cause the Company to, upon reasonable prior notice and during regular business hours, afford Purchaser and its Representatives reasonable access to the personnel, properties, and books and records of Seller and the Company relating to the Business, to the extent Purchaser reasonably believes necessary or advisable to familiarize itself with such properties and other matters and as Purchaser may reasonably request; provided, that Seller may restrict the foregoing access to the extent that in the reasonable judgment of Seller, any applicable Law requires it to restrict such access; provided, further, that such access shall not unreasonably disrupt the operations of Seller or any of its Affiliates. Notwithstanding anything to the contrary contained in this Agreement, Seller shall not be required to provide any information or access that Seller reasonably believes could violate applicable Law, including Antitrust Laws, rules or regulations or the terms of any Contract or cause the waiver of attorney/client or similar privilege.

(b)    Nothing contained in this Agreement shall be construed to give to Purchaser, directly or indirectly, rights to control or direct the Company or the Business prior to the Closing or any other business or operations of Seller. Prior to the Closing, Seller shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision of the Company and the Business and shall at all times exercise complete control and supervision of all of its other businesses and operations.

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-29-


(c)    Purchaser hereby agrees that it is not authorized to and shall not (and shall not permit any of its respective Representatives to) contact any competitor, contractor, vendor, supplier, distributor, customer, agent or Representative of Seller, the Company or with respect to the Business or the transactions contemplated hereby prior to the Closing without the prior written consent of Seller.

6.2    Conduct of Seller and the Business. Between the date hereof and the earlier of the Closing Date and the termination of this Agreement pursuant to or in accordance with Article IX hereof, except as otherwise taken with the prior written consent of Purchaser (which consent shall not be unreasonably withheld, delayed or conditioned) or as required by any Law, Seller shall, and shall cause the Company to:

(a)    conduct the Business substantially in the ordinary course;

(b)    comply with all requirements of all applicable Laws and Orders;

(c)    use reasonable efforts in accordance with past practice to preserve intact its current business organization, keep available the services of its current employees and agents, and maintain business relations and goodwill with suppliers, customers, landlords, creditors, employees, agents, licensees, clients and others having business relationships with it that are material to the Business;

(d)    not renew or extend any Material Contract or enter into a License Agreement that would be required to be listed on Section 4.11(a) of the Seller Disclosure Letter if it had been entered into prior to the date of this Agreement; provided, however, that (i) the automatic renewal of any Material Contract in accordance with its terms, or (ii) the negotiated extension or renewal of any Material Contract that is scheduled to expire in accordance with its terms between the date hereof and the End Date, provided that such negotiated extension or renewal is made in the ordinary course of business consistent with past practice and on terms that, in all material respects, are no less favorable to the Company than the terms existing immediately prior to such extension or renewal, shall be permitted hereunder if such Material Contract is specifically listed in Section 6.2(d) of the Seller Disclosure Letter

(e)    not permit, allow or suffer any asset of the Business to become subjected to any Lien other than Permitted Liens, other than in the ordinary course and not having a Material Adverse Effect, except to the extent any such Lien is released or fully discharged at or prior to Closing; and

(f)    not file any amended material Returns for the Pre-Closing Period or settle any Tax Contests with any Governmental Entity that would result in any material Tax liability to Purchaser, the Company or any of their Subsidiaries.

6.3    Efforts to Close; Antitrust Laws.

(a)    Except as otherwise provided in this Section 6.3, Purchaser and Seller shall, and shall cause their respective Affiliates and Representatives to, cooperate and use their respective commercially reasonable efforts to take, or cause to be taken, all appropriate action, and to make, or cause to be made, all filings necessary, proper or advisable under applicable

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-30-


Laws and to consummate and make effective the transactions contemplated by this Agreement, including their respective commercially reasonable efforts to obtain, prior to the Closing Date, all Permits, consents, approvals, authorizations, qualifications and Orders of Governmental Entities as are necessary for consummation of the transactions contemplated by this Agreement and to fulfill the conditions to consummation of the transactions contemplated hereby set forth in Section 7.2 and Section 7.3; provided, that neither Seller nor any of its Affiliates shall be required, unless otherwise expressly set forth herein, to repay any indebtedness for borrowed money, amend any Contract to increase the amount payable thereunder or otherwise to be materially more burdensome to Seller or any of its Affiliates, commence any litigation, offer or grant any accommodation (financial or otherwise) to any Third Party, pay any amount or bear any other incremental economic burden to obtain any such Permit, consent, approval, authorization, qualification or Order; provided, further, that no party hereto shall incur any expense that would be payable by any other party hereto without the consent of such other party.

(b)    Purchaser and Seller shall file, to the extent required, the Notification and Report Forms required under the HSR Act with respect to the transactions contemplated by this Agreement with the Antitrust Division of the United States Department of Justice and the Federal Trade Commission, and Purchaser and Seller shall each pay 50% of the required filing fee, as promptly as practicable and in no event later than ten (10) Business Days following the date hereof, and neither party will request early termination of the waiting period with respect thereto. Purchaser and Seller shall use their respective reasonable best efforts to make any other filings required under any other Antitrust Law as promptly as practicable following the date hereof.

(c)    Purchaser and Seller shall consult and cooperate with one another in connection with the preparation of their respective Notification and Report Forms, and consider in good faith the views of the other party, in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party in connection with proceedings under or relating to any Antitrust Laws and in connection with resolving any investigation or other inquiry concerning the Purchase or any of the other transactions contemplated by this Agreement initiated by any Antitrust Authority.

(d)    Purchaser shall take all actions reasonably necessary to obtain the required consents from Antitrust Authorities, including antitrust clearance under the HSR Act and under any other Antitrust Law, to the extent required, as promptly as practicable, and in any event prior to the End Date; provided, however, that neither Purchaser nor any of its Affiliates shall be required to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of Purchaser, its Affiliates or the Company, (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests which, in either case, could reasonably be expected to result in a Material Adverse Effect or materially and adversely impact the economic or business benefits to Purchaser of the transactions contemplated by this Agreement; or (iii) any material modification or waiver of the terms and conditions of this Agreement.

6.4    Public Announcements. Seller, on the one hand, and Purchaser, on the other hand, each shall (a) consult with each other before issuing any public announcement with respect to the transactions contemplated by this Agreement, (b) provide to the other party for

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-31-


review a copy of any such public announcement and (c) not issue any such public announcement prior to such consultation and review and the receipt of the prior consent of the other party to this Agreement, unless (x) required by applicable Law or regulations of any applicable stock exchange or, (y) in connection with Iconix’s or DHX’s earning releases and periodic reports, in the case of clauses (a), (b) and (c) of this Section 6.4, the party required to issue the public announcement shall, prior to issuing such public announcement, use its commercially reasonable efforts to allow the other party reasonable time to comment on such announcement to the extent practicable.

6.5    Notification of Certain Matters. Purchaser, on the one hand, and Seller, on the other hand, shall use their respective commercially reasonable efforts to promptly notify each other of any material actions, suits, claims or proceedings in connection with the transactions contemplated by this Agreement commenced or, to the Knowledge of the Purchaser or the Knowledge of the Seller, threatened, against Seller or Purchaser, as the case may be, or any of their respective Affiliates.

6.6    Post-Closing Access to Records and Personnel; Litigation Support.

(a)    For a period of seven (7) years after the Closing Date, Purchaser shall preserve and retain all corporate, accounting, Tax, legal, auditing, human resources and other books and records of the Company and the Business (including (i) any documents relating to any action, claim, lawsuit, demand, inquiry, hearing, investigation, notice of a violation or noncompliance, litigation, proceeding, arbitration, appeal or other dispute and (ii) all Returns, schedules, work papers and other material records or other documents relating to Taxes of the Company and the Business) relating to the Company or the conduct of the Business prior to the Closing Date. Notwithstanding the foregoing, during such seven-year period, Purchaser may dispose of any such books and records which are offered to, but not accepted by, Seller.

(b)    Following the Closing, the parties hereto will allow each other reasonable access to (i) the Company, the Business, and the Owned IP Assets, (ii) their books and records related to the Company, the Business, and the Owned IP Assets, and (iii) such personnel employed by an Affiliate of Seller having knowledge of the location or contents of such books and records, for legitimate business reasons; provided, however, that no such access shall unreasonably interfere with Seller’s and Purchaser’s operation of their respective businesses. Notwithstanding anything to the contrary contained in this Agreement, no Person shall be required to provide any information or access that such Person reasonably believes could violate applicable Law, including Antitrust Laws, rules or regulations or the terms of any Contract or cause the waiver of attorney/client or similar privilege. Each party shall be entitled to recover from the other its out-of-pocket costs (including copying costs) incurred in providing such books and records or personnel to the other party. The requesting party will hold in confidence all confidential information identified as such by, and obtained from, the disclosing party or any of its Representatives, except as otherwise required by Law.

(c)    If and for so long as Seller or Purchaser is actively contesting or defending against any action, claim, lawsuit, demand, inquiry, hearing, investigation, notice of a violation or noncompliance, litigation, proceeding, arbitration, appeal or other dispute, brought by a Third Party in connection with (i) the Purchase or (ii) any fact, situation, circumstance,

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-32-


status, condition, activity, practice, plan, occurrence, event, incident, action, failure to act, or transaction on or prior to the Closing Date involving the Company, the Business, or the Owned IP Assets, the non-contesting or non-defending party or parties shall, at the sole cost and expense of the contesting or defending party (except as otherwise provided in Section 6.6(b)), (x) cooperate with the contesting or defending party and its counsel in the defense or contest, (y) make available its or their personnel (including to act as a witness) and (z) provide such access to its or their books and records as shall be necessary or reasonably requested in connection with the defense or contests; provided, however, that no such cooperation or access shall unreasonably interfere with such non-contesting or non-defending party’s operation of its business(es). All non-public information received pursuant to this Section 6.6 shall be kept confidential, except as otherwise required by Law. Notwithstanding anything to the contrary contained in this Agreement, no Person shall be required to provide any access that such Person reasonably believes could violate applicable Law, including Antitrust Laws, rules or regulations or the terms of any Contract or cause the waiver of attorney/client or similar privilege. Each party shall be entitled to recover from the other its out-of-pocket costs incurred in providing such personnel and access to the other party.

(d)    The obligations of Purchaser under this Section 6.6 shall be binding upon the successors and assigns of Purchaser. If Purchaser or any of its successors or assigns (i) consolidates with or merges into any other Person or (ii) transfers all or any portion of the Interests to any other Person (whether by asset sale, stock sale or otherwise), proper provision shall be made to bind the successors and assigns of Purchaser to the obligations set forth in this Section 6.6.

6.7    Tax Matters.

(a)    All stamp, transfer, documentary, sales and use, value added, registration and other such taxes and fees (including any penalties and interest) incurred in connection with this Agreement or the Purchase (collectively, the “Transfer Taxes”), shall be borne 50% by Seller and 50% by Purchaser, and Purchaser shall properly file on a timely basis all necessary Returns and other documentation with respect to any Transfer Tax and provide to Seller evidence of payment of all Transfer Taxes. If required by applicable Law, the parties hereto shall, and shall cause their respective Affiliates to, join in the execution of any such Returns and other documentation; provided, however, that, to the extent that Seller is required to join in the execution of any such Return or documentation, Purchaser shall prepare and deliver to Seller a copy of such Return at least five (5) Business Days before the due date thereof and shall not file such Return without the consent of Seller, which consent shall not be unreasonably withheld, conditioned or delayed.

(b)    (i) All Returns, including any amendments thereto, for Taxes and Tax items relating to the operations or assets of the Company, but not imposed on the Company (to the extent such Tax items are reflected on or affect the amounts reported on the Returns of the Company) for any tax period ending on or before the Closing Date (including any tax period ending on the Closing Date as a result of a technical termination) (“Flow-Through Returns”) shall be prepared and filed in the sole discretion of Seller; provided, however, Seller shall: (A) prepare such Flow-Through Returns in a manner consistent with past practice unless otherwise required by law, and (B) not change any tax election nor make any new tax election on such

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-33-


Flow-Through Returns, which tax election is required to remain in effect on any Tax Return that includes, in whole or in part, any period after the Closing Date, without the consent of Purchaser, which consent shall not be unreasonably withheld or delayed. Purchaser shall cause the Company to provide any assistance and information reasonably requested by Seller to enable Seller (or any other persons preparing Flow-Through Returns) to prepare Flow-Through Returns.

(ii)    All Returns, including any amendments thereto, for Taxes and Tax items relating to the operations or assets of the Company, that are imposed on the Company for periods ending on or prior to the Closing Date (the “Non-Flow-Through Returns”) shall be prepared by Seller and copies of such Returns shall be provided to the Purchaser for review and approval, which approval shall not be unreasonably withheld or delayed. Purchaser shall cooperate with Seller’s reasonable requests for assistance and information in connection with the preparation of the Non-Flow-Through Returns.

(iii)    Purchaser and Seller shall cooperate fully, to the extent commercially reasonable, in connection with (y) the filing of Flow-Through Returns and Non-Flow-Through Returns, (z) any Tax Contest with respect to Flow-Through Returns or Non-Flow-Through Returns and Taxes relating to such Returns and (iii) the preparation of any financial statements to the extent related to such Taxes. Seller shall have the right to control any Tax Contest with respect to Taxes and Returns that relate to any Flow-Through Return and Non-Flow-Through Returns (such tax matter, a “Seller Tax Matter”); provided, however, Seller shall not settle any Tax Contest with respect to a Seller Tax Matter to the extent such settlement would have a Material Adverse Effect on Purchaser without the consent of Purchaser, which consent shall not be unreasonably withheld or delayed. Purchaser shall provide Seller with notice of any written inquiries, audits, examinations or proposed adjustments by the Internal Revenue Service or any other Taxing Authority, which relate to any Seller Tax Matter within ten (10) days of the receipt of such notice.

(iv)    Purchaser shall be responsible for the preparation and filing of all Post-Closing Period Returns. If a Post-Closing Period Return is a Straddle Period Return, then, (y) prior to filing such Return, Purchaser shall provide Seller a copy of such Return not later than thirty (30) days prior to the due date for such Return for Seller review and approval, which approval shall not be unreasonably withheld or delayed and (z) such Return shall be prepared in accordance with past practice, unless otherwise required by Law. Seller and Purchaser shall jointly control any Tax Contest with respect to a Straddle Period Return (and neither party shall settle any such Tax Contest without the other party’s consent, such consent not to be unreasonably withheld or delayed). To the extent it is necessary for purposes of this Agreement to determine the allocation of Taxes among a Straddle Period, the amount of any Taxes based on or measured by income, receipts, payroll or sales of the Company will be determined based on an interim closing of the books as of the close of business on the Closing Date and the amount of other Taxes of the Company for a Straddle Period that relates to the Pre-Closing Period will be deemed to be the amount of such Tax for the entire taxable period multiplied by a fraction, the numerator of which is the number of days in the taxable period ending on the Closing Date and the denominator of which is the number of days in such Straddle Period.

(c)    Seller shall be entitled to retain or, to the extent actually received by or otherwise available to Purchaser or any of its Affiliates, receive payment from Purchaser or any

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-34-


of its Affiliates of, any refund or credit with respect to Taxes (including refunds arising by reason of amended Returns filed after the Closing or otherwise) paid by Seller with respect to any Pre-Closing Period relating to the Company. Purchaser shall be entitled to retain or, to the extent actually received by Seller or any of its Affiliates, receive payment from Seller or any of its Affiliates of, any refund or credit with respect to Taxes (including refunds arising by reason of amended Tax Returns filed after the Closing or otherwise) with respect to any Post-Closing Period relating to the Company.

(d)    Purchaser, on the one hand, and Seller, on the other hand, agree to furnish or cause to be furnished to each other, upon request, as promptly as practicable, such information and assistance relating to the Company (including access to books and records) as is reasonably necessary for the filing of all Returns, the making of any election relating to Taxes, the preparation for any audit by any Taxing Authority and the prosecution or defense of any Tax Contest; provided, however, that neither Purchaser nor Seller shall be required to disclose any income Tax Returns to any Person. Any expenses incurred in furnishing such information or assistance pursuant to this Section 6.7(d) shall be borne by the party requesting it.

(e)    Neither Purchaser nor any Affiliate of Purchaser shall amend any Return with respect to any Pre-Closing Period without the prior consent of Seller, which consent shall not be unreasonably withheld or delayed.

(f)    Notwithstanding anything herein to the contrary, neither Purchaser nor any of its respective Representatives shall have access to the Returns or related workpapers of Seller or any of its Affiliates.

6.8    Further Assurances. At any time and from time to time after the Closing Date, without further consideration, each party hereto shall, at the reasonable request of the other party hereto, execute and deliver such further instruments of conveyance, assignment, assumption and transfer and take such further action as may be necessary or appropriate in order to effectuate the Purchase.

6.9    Audited Financials. Following the date of this Agreement, upon Purchaser’s request and at Purchaser’s expense, Seller will cooperate with Purchaser and the Company in respect of the preparation by Purchaser and the Company of such audited financial statements of the Company as Purchaser may determine are necessary or desirable for securities law compliance or other purposes.

6.10    Financing.

(a)    Purchaser shall use its best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable to arrange, obtain and consummate the Debt Financing on the terms and conditions described in the Debt Commitment Letter on or prior to the Closing Date for the purpose of, among other things, funding the Purchase Price. Such actions shall include: (i) maintaining in full force and effect and in all material respects the Debt Commitment Letter in the form provided to Seller concurrently with the execution of this Agreement, (ii) satisfying on a timely basis all of the conditions precedent and covenants to the Debt Financing applicable to Purchaser that are to be

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-35-


satisfied by Purchaser, (iii) negotiating, executing and delivering definitive documents (“Debt Financing Documents”) that reflect in all material respects the terms contained in the Debt Commitment Letter (including, as necessary, agreeing to any requested changes to the commitments thereunder in accordance with any “flex” provisions contained in the Debt Commitment Letter or any related fee letter), in each case which terms shall not in any material respect expand on the conditions to the funding of the Debt Financing Proceeds at the Closing or reduce the aggregate amount of the Debt Financing Proceeds available to be funded on the Closing Date, (iv) drawing such amount of the Debt Financing Proceeds as is necessary to satisfy Purchaser’s obligations under this Agreement and (v) fully enforcing its rights under the Debt Commitment Letter and the Debt Financing Documents in order to consummate the Debt Financing at or prior to the Closing. Without the prior written consent of Seller (such consent not to be unreasonably withheld, conditioned or delayed), Purchaser shall not permit or consent to any amendment, supplement or modification to be made to the Debt Commitment Letter if such amendment, supplement or modification imposes new or additional conditions to the initial funding or otherwise expands, amends or modifies any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter, in a manner that would reasonably be expected to delay or prevent or make less likely the funding of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, provided that Purchaser may (1) amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities, (2) implement or exercise the “flex” provisions contained in one or more fee letters related to the Debt Financing and (3) reduce the Debt Financing on a dollar for dollar basis upon receipt of the proceeds of an offering of debt or equity securities (an “Equity Issuance”) on or after the date hereof. Purchaser acknowledges and agrees that its obligations to consummate the transactions contemplated by this Agreement are not conditioned or contingent upon receipt of the Debt Financing Proceeds and a failure of the Closing to occur because Purchaser has not received the Debt Financing Proceeds shall constitute a material breach of this Agreement by Purchaser. Purchaser shall keep Seller fully informed, in all reasonable detail, of the status of its efforts to arrange the Debt Financing and shall, from the date hereof until the Closing Date, promptly notify Seller of the receipt by Purchaser of any written notice or other written communication from any Debt Financing Source with respect to any actual, threatened or alleged material breach, default, termination or repudiation by any party to any Debt Commitment Letter or any Debt Financing Document or any material provision of the Debt Financing contemplated pursuant to the Debt Commitment Letter or the Debt Financing Documents, provided that in no event will Purchaser be under any obligation to disclose any information shared among Purchaser and its professional advisors in connection with matters contemplated by this sentence that is subject to attorney-client or similar legal privilege. Purchaser shall promptly provide Seller, upon reasonable request, with copies of any Debt Financing Documents and such other information and documentation regarding the Debt Financing as shall be reasonably necessary to allow Seller to monitor the progress of such financing activities. Upon request, Purchaser shall provide Seller with written updates concerning the status of any Equity Issuance, including whether DHX intends to proceed with an Equity Issuance to raise part of the Purchase Price.

(b)    In the event of any notification or communication that the Debt Financing will not be available to Purchaser in accordance with the terms hereof, Purchaser shall use its best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange for and obtain as promptly as practicable

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-36-


following the occurrence of any such Financing Failure Event alternative debt financing (the “Alternative Financing”) on commercially reasonable terms, whether or not such terms are more or less favorable to Purchaser than the terms of the Debt Commitment Letter, in an amount sufficient to consummate the transactions contemplated hereby and perform all of their obligations hereunder, it being understood and agreed that if Purchaser proceeds with any Alternative Financing, Purchaser shall be subject to the same obligations with respect to such Alternative Financing as set forth in this Agreement with respect to the Debt Financing. In the event that Alternative Financing is obtained, Purchaser shall promptly provide Seller with a copy of the new financing commitment that provides for such Alternative Financing (the “Alternative Financing Commitment Letter”). If applicable, any reference in this Agreement to “Debt Financing” shall include “Alternative Financing”, any reference to “Debt Commitment Letter” shall include the “Alternative Financing Commitment Letter” and any references to “Debt Financing Documents” shall include the definitive documentation relating to any such Alternative Financing.

(c)    From the date hereof and ending at the earlier of (i) the Closing Date and (ii) termination of this Agreement pursuant to Section 9.1, Seller shall cooperate and cause its officers, employees and advisors, including legal and accounting, to provide to Purchaser, at Purchaser’s sole expense, such reasonable cooperation in connection with the arrangement of the Debt Financing as may be reasonably requested by Purchaser; provided that Seller shall not be required to provide cooperation under this Section 6.10(c) that: (w) unreasonably interferes with the ongoing business of Seller or the Company; (x) causes any representation or warranty in this Agreement to be breached; (y) causes any closing condition set forth in Article VII to fail to be satisfied or otherwise causes the breach of this Agreement or any Contract to which Seller or the Company is a party; or (z) requires Seller or any of its directors, officers, managers or employees to execute, deliver or enter into, or perform any agreement, document or instrument, including any Debt Financing Document, with respect to the Debt Financing that is not contingent upon the Closing or that would be effective prior to the Closing and the directors and managers of Seller shall not be required to adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained, in each case which are effective prior to the Closing. In no event shall Seller be in breach of this Agreement because of the failure to deliver any financial or other information that is not currently readily available to Seller on the date hereof or is not otherwise prepared in the ordinary course of business of Seller at the time requested by Purchaser or for the failure to obtain review of any financial or other information by its accountants.

(d)    In no event shall Seller be required to pay any commitment or similar fee or incur any Liability (including due to any act or omission by Seller or its respective agents, other than acts or omissions constituting gross negligence or willful misconduct) or expense in connection with assisting Purchaser in arranging the Debt Financing or as a result of any information provided by Seller or any of its Affiliates or agents in connection therewith. Purchaser shall, from and after the Closing or promptly after the termination of this Agreement pursuant to Section 9.1, (i) promptly upon request by Seller reimburse Seller for all documented out-of-pocket costs incurred in good faith by Seller in connection with such cooperation and (ii) indemnify and hold harmless Seller, and its Affiliates and agents from and against any and all Liabilities, Losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the arrangement of the Debt Financing or providing any of the information utilized in connection therewith, except to the extent of any of such Persons’ gross negligence or willful misconduct.

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-37-


(e)    To the extent that this Section 6.10 requires Seller’s cooperation with respect to any of Purchaser’s obligations under the Debt Commitment Letter or relating to the Debt Financing, Seller shall be deemed to have complied with this Section 6.10 for purposes of Article VII of this Agreement if Seller has provided Purchaser with the assistance required under this Section 6.10 with respect to the Debt Commitment Letter and the Debt Financing. Notwithstanding anything to the contrary, the condition set forth in Section 7.2(a), as it applies to Seller’s obligations under this Section 6.10, shall be deemed satisfied unless the Debt Financing has not been obtained primarily as a direct result of Seller’s breach of its obligations under this Section 6.10.

6.11    Aged Accounts Receivable Credit. If, at any time within the ninety (90)-day period following the Closing, any Aged Accounts Receivable are paid to Purchaser or its Affiliates, including the Company, upon receipt of any such payments following the Closing, Purchaser and its Affiliates, including the Company, shall promptly, but in no event more than ten (10) Business Days following their receipt thereof, pay such amounts (net of their collection costs associated therewith) to Seller or Seller’s designee by wire transfer of immediately available funds as directed by Seller.

6.12    Efforts to Collect and Reporting. Following the Closing Date and for a period of ninety (90) days thereafter, Purchaser and its Affiliates, including the Company, shall use commercially reasonable efforts to collect any Aged Accounts Receivable and Purchaser and its Affiliates, including the Company, shall not forgive the payment of any such amounts, or modify the terms of payment with respect thereto, without Seller’s prior written consent. Purchaser shall, and shall cause its Affiliates, including the Company, to provide Seller, for a period of one hundred eighty (180) days following the Closing Date, with such access to its or their books and records and with such other information and cooperation as shall be reasonably requested by Seller in connection with Purchaser’s obligations under Section 6.11, and this Section 6.12; provided, however, that no such cooperation or access shall unreasonably interfere with Purchaser and its Affiliates operation of its and their businesses.

6.13    Payment to Wrong Party Following Closing. If following the Closing, either (a) Seller receives amounts that should have been paid to the Company directly for periods following the Closing or (b) the Company receives amounts that should have been allocated or paid to Seller for periods prior the Closing (each, a “Misdirected Payment”), then the party receiving a Misdirected Payment shall promptly, but in no event more than five (5) Business Days following their receipt thereof, pay such amounts (net of their collection costs associated therewith) by wire transfer of immediately available funds to the correct party who should have received the payment directly from the Third Party in the first instance according to payment instructions from such party.

6.14    Transfer of Domain Name Registrations. Purchaser acknowledges that certain domain name registrations used in connection with the Business may be registered in the name of Seller or an Affiliate of Seller and that Seller shall assign such domain name registrations to the Company prior to the Closing; unless the Company may not contractually or

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-38-


lawfully take possession of such domain name registrations, in which case the parties shall use commercially reasonable efforts to assign such domain name registrations to either Purchaser or a different Affiliate of Purchaser. If Purchaser, the Company and Purchaser’s other Affiliates cannot lawfully or contractually take possession of certain domain name registrations used in connection with the Business, Purchaser and Seller shall use their respective commercially reasonable efforts to cooperate in a mutually agreeable arrangement under which Purchaser or its Affiliates would obtain the benefits and assume the obligations associated with possession of such domain name registrations.

ARTICLE VII

CONDITIONS PRECEDENT

7.1    Conditions to the Obligations of Each Party. The respective obligations of Purchaser and Seller to consummate and cause the consummation of the Purchase are subject to the satisfaction or waiver in writing by Seller and Purchaser at or before the Closing Date of each of the following conditions:

(a)    Injunctions; Illegality. No Governmental Entity shall have issued, enacted, entered, promulgated or enforced any Law or Order (that is final and non-appealable and that has not been vacated, withdrawn or overturned) restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement.

(b)    HSR Act. Any waiting periods under the HSR Act with respect to the transactions contemplated by this Agreement shall have expired.

(c)    Consents. Seller shall have received executed copies of the consents or waivers set forth on Section 7.1(c) of the Seller Disclosure Letter, which in each case shall be sufficient to permit the consummation of the Purchase.

(d)    Consummation of the Peanuts Transaction. The Peanuts Closing (as defined in the Peanuts Transaction Agreement) shall occur substantially simultaneously with the Closing.

7.2    Conditions to the Obligations of Purchaser. The obligations of Purchaser to consummate and cause the consummation of the Purchase are subject to the satisfaction or waiver by Purchaser on or prior to the Closing Date of the following further conditions:

(a)    Performance. All of the agreements and covenants of Seller to be performed prior to the Closing pursuant to this Agreement shall have been duly performed in all material respects.

(b)    Representations and Warranties. The representations and warranties of Seller contained in Article IV, taken as a whole, shall be true and correct (without giving effect to any “material”, “materially”, “materiality”, “Material Adverse Effect”, “material adverse effect”, “material adverse change” or similar qualifiers contained in any of such representations or warranties) in all material respects as of the Closing Date (or if such representations or warranties are made as of a specified date, as of such specified date) as if made at and as of such date.

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-39-


(c)    Closing Deliverables. Seller shall have delivered or caused to be delivered to Purchaser the items set forth in Section 2.2(b).

7.3    Conditions to the Obligations of Seller. The obligations of Seller to consummate and cause the consummation of the Purchase are subject to the satisfaction or waiver by Seller, on or prior to the Closing Date, of the following further conditions:

(a)    Performance. All of the agreements and covenants of Purchaser to be performed prior to the Closing pursuant to this Agreement shall have been duly performed in all material respects.

(b)    Representations and Warranties. The representations and warranties of Purchaser contained in Article V, taken as a whole, shall be true and correct in all material respects at and as of the Closing Date (or if such representations or warranties are made as of a specified date, as of such specified date) as if made at and as of such date.

(c)    Closing Deliverables. Purchaser shall have delivered or caused to be delivered to Seller the items set forth in Section 2.2(c).

7.4    Frustration of Closing Conditions. Neither Purchaser nor Seller may rely on the failure of any condition set forth in this Article VII to be satisfied if such failure were caused by such party’s failure to act in good faith or such party’s failure to comply with Section 6.3.

ARTICLE VIII

INDEMNIFICATION; REMEDIES

8.1    General Indemnification by Seller. Following the Closing, and subject to the provisions of this Article VIII, Seller shall indemnify and hold harmless Purchaser and its Representatives and Affiliates (including the Company after Closing) (collectively, the “Purchaser Indemnified Persons”) for, and shall pay to the Purchaser Indemnified Persons the amount of, any loss, liability, claim, damage, cost, penalty, fine, judgment, expense (including reasonable out-of-pocket attorneys’ fees), whether or not involving a Third Party claim (collectively, “Damages”), arising out of or resulting from: (a) any breach of any representation or warranty made by Seller in this Agreement; and (b) any breach by Seller of any covenant or obligation of Seller in this Agreement. Seller has not given any representations or warranties with respect to terminations of grants of Copyrights pursuant to 17 U.S.C. Section 203 or Section 304, or the exercise of any rights thereunder, by any Person. Seller shall have no liability with respect to claims for Damages or indemnification by any Purchaser Indemnified Persons concerning any such rights, or the exercise thereof, under 17 U.S.C. Section 203 or Section 304.

8.2    Tax Indemnification by Seller. After Closing, Seller shall indemnify the Purchaser Indemnified Persons, and hold them harmless from and against (a) all Taxes (or the non-payment thereof) of the Company for the Pre-Closing Period and (b) any and all Taxes of

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-40-


any member of an affiliated, consolidated, combined, or unitary group of which the Company is or was a member during the Pre-Closing Period, including pursuant to IRS regulation §1.1502-6 or any analogous or similar state, local or non-U.S. law or regulation.

8.3    Indemnification by Purchaser. Following the Closing, Purchaser shall indemnify and hold harmless Seller and its Representatives and Affiliates (including the Company prior to Closing) (collectively, the “Seller Indemnified Persons”) for, and shall pay to the Seller Indemnified Persons the amount of any Damages arising out of or resulting from (a) any breach of any representation or warranty made by Purchaser in this Agreement, or (b) any breach by Purchaser of any covenant or obligation of Purchaser in this Agreement.

8.4    Time Limitations. Seller will not be liable (for indemnification or otherwise) with respect to any representation or warranty, or covenant or obligation to be performed and complied with prior to the Closing Date, other than those in Sections 4.1, 4.2(a), 4.3, 4.4 and 4.12 (the “Fundamental Reps”), or Sections 4.7, 4.13 or 4.19 (the “Designated Reps”), unless on or before [***], Purchaser notifies Seller in writing of a claim. A claim with respect to the Fundamental Reps may be made by Purchaser at any time [***]. A claim with respect to the Designated Reps may be made by Purchaser at any time [***]. If the Closing occurs, Purchaser will not be liable (for indemnification or otherwise) with respect to any representation or warranty, or covenant or obligation to be performed and complied with prior to the Closing Date, unless, [***], Seller notifies Purchaser in writing of a claim. All claims shall specify the factual basis of that claim in reasonable detail to the extent then known by such party initiating the claim. Each of the covenants and agreements of the Seller set forth in this Agreement shall expire on the Closing Date; provided that the covenants and agreements contained herein requiring performance after the Closing Date shall survive in accordance with their terms.

8.5    Limitations on Amount.

(a)    In no event shall either party have the right to loss of profits or consequential, incidental, special or punitive damages of any kind whatsoever.

(b)    Seller shall have no liability with respect to claims for indemnification by the Purchaser Indemnified Persons, and Purchaser shall have no liability with respect to claims for indemnification by the Seller Indemnified Persons, until (and only to the extent that) the total of all Damages with respect to claims for indemnification under this Agreement and/or under the Peanuts Transaction Agreement, in the aggregate, exceed an amount equal to [***] (the “Basket”), which amount shall be treated as a deductible for purposes of this Article VIII.

(c)    In no event shall the Purchaser Indemnified Persons or Seller Indemnified Persons, as the case may be, be entitled to recover Damages from the other in excess of an amount equal to twenty five million dollars ($25,000,000) in the aggregate with respect to claims for indemnification under this Agreement and/or under the Peanuts Transaction Agreement (the “Cap”), provided that the Cap shall be reduced from time to time to reflect payments for indemnification for which the Cap applies.

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-41-


(d)    The Purchaser Indemnified Persons’ right to indemnification shall be reduced to the extent that the subject matter of any claim is covered by and payable pursuant to any insurance policy, warranty or indemnification from a Third Party.

(e)    No party hereto shall be obligated to indemnify any other Person with respect to (i) any representation, warranty, covenant or condition specifically waived in writing by the other party on or prior to the Closing, or (ii) any Damages with respect to any matter if and to the extent such matter was included in the calculation of the Working Capital Adjustment pursuant to Section 3.2.

(f)    Subject to Section 10.10, and except with respect to any claim for fraud, the remedies provided in this Article VIII shall be exclusive and shall preclude other remedies that may be available to Seller, Purchaser, the Seller Indemnified Persons or the Purchaser Indemnified Persons.

(g)    Notwithstanding anything in this Section 8.5 to the contrary, neither the Basket nor the Cap shall apply to Damages arising out of or related to (i) breaches by Seller of any Fundamental Rep, (ii) matters covered by Sections 8.1(b), Section 8.2 or Section 8.3(b), or (iii) actual fraud; provided, however, that in no event shall the Purchaser Indemnified Persons be entitled to recover Damages from Seller with respect to the matters described in the immediately preceding clauses (i) and (ii) in an aggregate amount, together with all other claims for Damages paid or payable under this Article VIII, in excess of the Purchase Price.

8.6    Procedure for Indemnification — Third Party Claims.

(a)    Promptly after receipt by a party indemnified under Section 8.1, 8.2 or 8.3 of notice of the commencement of any Proceeding against it, by a Third Party, any indemnified party will, if a claim is to be made against an indemnifying party under such Section, give written notice to the indemnifying party of the commencement of such claim, but the failure to notify the indemnifying party will not relieve the indemnifying party of any liability that it may have to any indemnified party, except to the extent that the indemnifying party demonstrates that the defense of such action is prejudiced by the indemnified party’s failure to give such notice.

(b)    If any Proceeding referred to in Section 8.6(a) is brought against an indemnified party and it gives written notice to the indemnifying party of the commencement of such Proceeding, the indemnifying party may elect to assume the defense of such Proceeding with counsel reasonably satisfactory to the indemnified party (unless the indemnifying party is also a party to such Proceeding and the indemnified party determines in good faith that joint representation would be inappropriate under applicable standards of legal ethics) and, after written notice from the indemnifying party to the indemnified party of its election to assume the defense of such Proceeding, the indemnifying party shall not, as long as it diligently conducts such defense, be liable to the indemnified party under this Article VIII for any fees of other counsel or any other expenses with respect to the defense of

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-42-


such Proceeding, in each case subsequently incurred by the indemnified party in connection with the defense of such Proceeding. If the indemnifying party assumes the defense of a Proceeding, no compromise or settlement of such claims may be effected by the indemnifying party without the indemnified party’s consent (which consent shall not be unreasonably withheld, conditioned or delayed) unless (i) the compromise or settlement does not involve any statement, finding or admission of any fault of, breach of Contract by, or violation of Law by, the indemnified party, and (ii) the sole relief provided is monetary damages that are paid in full by the indemnifying party. If written notice is given to an indemnifying party of the commencement of any Proceeding and the indemnifying party does not, within thirty (30) days after the indemnified party’s notice is given, give written notice to the indemnified party of its election to assume the defense of such Proceeding, the indemnified party may assume control of the defense of such Proceeding with counsel of its own choosing, at the cost of the indemnifying party, and the indemnifying party will be bound by any determination made in such Proceeding or any compromise or settlement effected by the indemnified party. This Section 8.6 shall not apply to Tax Contests, which shall be governed by Section 6.7(b).

(c)    Each party shall make available to the other all records and other materials reasonably required to contest any claim and shall cooperate fully with the other in the defense of all such claims. Information disclosed by one party to the other shall be kept confidential.

8.7    Adjustment to Purchase Price. The parties agree that any indemnification payment made pursuant to this Agreement shall be treated as an adjustment to the Purchase Price for Tax purposes, unless a Final Determination with respect to the indemnitee or any of its Affiliates causes any such payment not to be treated as an adjustment to the Purchase Price for federal income Tax purposes. For the purposes of this Agreement, “Final Determination” shall mean (a) with respect to federal income Taxes, a “determination” as defined in Section 1313(a) of the Code or execution of an IRS Form 870-AD and, (b) with respect to Taxes other than federal income Taxes, any final determination of liability in respect of a Tax that, under applicable Law, is not subject to further appeal, review or modification through a Proceeding or otherwise (including the expiration of a statute of limitations or a period for the filing of claims for refunds, amended Tax Returns or appeals from adverse determinations).

8.8    Damages. For purposes of determining the amount only of any Damages in connection with this Article VIII, all representations and warranties made by Seller or Purchaser that are qualified by “material,” “Material Adverse Change” or “Material Adverse Effect” shall be deemed to be not so qualified.

ARTICLE IX

TERMINATION

9.1    Termination Events. This Agreement may be terminated and the Purchase may be abandoned, at any time prior to the Closing:

(a)    by mutual written consent of Seller and Purchaser;

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-43-


(b)    by either Seller or Purchaser, if:

(i)    any court or other Governmental Entity shall have issued, enacted, entered, promulgated or enforced any Law or Order (that is final and non-appealable and that has not been vacated, withdrawn or overturned) restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement; provided, that the party seeking to terminate pursuant to this Section 9.1(b)(i) shall have complied with its obligations, if any, under Section 6.3; or

(ii)    the Closing Date shall not have occurred on or prior to the date that is ninety (90) days from the date of this Agreement (the “End Date”); provided, that neither party may terminate this Agreement pursuant to this Section 9.1(b)(ii) if such party is in material breach of this Agreement;

(c)    by Seller, if: (i) any of the representations and warranties of Purchaser contained in Article V shall fail to be true and correct or (ii) there shall be a breach by Purchaser of any covenant or agreement of Purchaser in this Agreement that, in either case, (x) would result in the failure of a condition set forth in Section 7.3(a), Section 7.3(b), or Section 7.1(d) and (y) which is not curable or, if curable, is not cured upon the occurrence of the earlier of (1) the 30th day after written notice thereof is given by Seller to Purchaser and (2) the day that is five (5) Business Days prior to the End Date; provided, that Seller may not terminate this Agreement pursuant to this Section 9.1(c) if Seller is in material breach of this Agreement; or

(d)    by Purchaser, if: (i) any of the representations and warranties of Seller contained in Article IV shall fail to be true and correct or (ii) there shall be a breach by Seller of any covenant or agreement of Seller in this Agreement that, in either case, (x) would result in the failure of a condition set forth in Section 7.2(a), Section 7.2(b), or Section 7.1(d) and (y) which is not curable or, if curable, is not cured upon the occurrence of the earlier of (1) the 30th day after written notice thereof is given by Purchaser to Seller and (2) the day that is five Business Days prior to the End Date; provided, that Purchaser may not terminate this Agreement pursuant to this Section 9.1(d) if Purchaser is in material breach of this Agreement.

9.2    Effect of Termination. In the event of the termination of this Agreement pursuant to Section 9.1 by Purchaser, on the one hand, or Seller, on the other hand, written notice thereof shall forthwith be given to the other party specifying the provision hereof pursuant to which such termination is made, and this Agreement shall be terminated and become void and have no effect and there shall be no Liability hereunder on the part of Seller or Purchaser, except that this Article IX (Termination) and Article X (Miscellaneous) shall survive any termination of this Agreement. Nothing in this Section 9.2 shall relieve or release any party to this Agreement of any Liability or damages (which the parties hereto acknowledge and agree shall not be limited to reimbursement of expenses or out-of-pocket costs, and may include to the extent proven the benefit of the bargain lost (taking into consideration relevant matters, including other combination opportunities and the time value of money) arising out of such party’s material breach of any provision of this Agreement).

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-44-


9.3    No Recourse to Debt Financing Source. Notwithstanding anything herein to the contrary and subject to and without derogation of the rights of Purchaser and its Subsidiaries, Affiliates or Representatives under the Debt Commitment Letter (or Alternative Financing Commitment Letter, as applicable), or any Debt Financing Document, Seller and Iconix agree, on behalf of themselves and each of their former, current or future officers, directors, managers, employees, members, partners, stockholders, agents and other representatives and Affiliates (the “Applicable Parties”), that the Debt Financing Source and each of its respective former, current or future general or limited partners, stockholders, managers, members, agents, representatives and Affiliates and each of its successors and assigns, shall be subject to no liability or claims to the Applicable Parties in connection with financing any portion of the Debt Financing or Alternative Financing or in any way relating to this Agreement, any of the transactions contemplated hereby, the Debt Commitment Letter or the Debt Financing (or any Alternative Financing Commitment Letter or Alternative Financing, as applicable), whether at law, in equity, in contract, in tort or otherwise, and hereby waives any rights or claims and agrees not to commence any proceedings against such Persons in connection with this Agreement, any of the transactions contemplated hereby, the Debt Commitment Letter or the Debt Financing (or any Alternative Financing Commitment Letter or Alternative Financing, as applicable) and the Debt Financing Source, solely in their respective capacities as lenders or arrangers, shall not have any rights or claims against any Applicable Parties in connection with this Agreement, any of the transactions contemplated hereby, the Debt Commitment Letter or the Debt Financing (or any Alternative Financing Commitment Letter or Alternative Financing, as applicable). Nothing in this Section 9.3 shall in any way expand the circumstances in which Purchaser may be liable under this Agreement, any of the transactions contemplated hereby, the Debt Commitment Letter or the Debt Financing (or any Alternative Financing Commitment Letter or Alternative Financing, as applicable).

ARTICLE X

MISCELLANEOUS

10.1    Expenses. Except as otherwise provided in this Agreement, whether or not the Closing occurs, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby will be paid by the party incurring such costs and expenses.

10.2    Extension; Waiver. Subject to the express limitations herein, the parties hereto may (a) extend the time for the performance of any of the obligations or other acts of the other party hereto, (b) waive any inaccuracies in the representations and warranties contained herein by the other party or in any document, certificate or writing delivered pursuant hereto by such other party or (c) waive compliance with any of the agreements or conditions contained herein. Any agreement on the part of any party to any such extension or waiver shall be valid only if set forth in an instrument in writing signed by or on behalf of such party. No failure or delay on the part of any party hereto in the exercise of any right hereunder shall impair such right or be construed as a waiver of, or acquiescence in, any breach of any representation, warranty, covenant or agreement herein, nor shall any single or partial exercise of any such right preclude other or further exercise thereof or of any other right.

10.3    Notices. Except as otherwise provided herein, all notices, requests, claims, demands, waivers and other communications hereunder shall be in writing and shall be

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-45-


delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopier, facsimile or email transmission (in the case of telecopier, facsimile or email transmission, with copies by overnight courier service or registered mail) to the respective parties as follows (or, in each case, as otherwise notified by any of the parties hereto) and shall be effective and deemed to have been given (i) immediately when sent by telecopier, facsimile or email between 9:00 A.M. and 6:00 P.M. (New York City time) on any Business Day (and when sent outside of such hours, at 9:00 A.M. (New York City time) on the next Business Day) and (ii) when received if delivered by hand or overnight courier service or certified or registered mail on any Business Day:

(a)    If to Seller or Iconix, to:

c/o Iconix Brand Group, Inc.

1450 Broadway, 3rd Floor

New York, New York 10018

Attention:    Jason Schaefer

Fax:         (212) 509-5150

email:      jschaefer@iconixbrand.com

with a copy (which shall not constitute notice or service of process) to:

White & Case LLP

1221 Avenue of the Americas

New York, New York 10020

Attention: Nazim Zilkha

                 Daren Orzechowski

Fax:         (212) 354-8113

email:      nzilkha@whitecase.com; dorzechowski@whitecase.com

(b)    If to Purchaser or DHX, to:

DHX SSP Holdings LLC

c/o DHX Media Ltd.

1478 Queen Street

Halifax, Nova Scotia B3J 2H7

Attention: Mark Gosine

Fax:         (902) 422-0752

email:      mark.gosine@dhxmedia.com

with a copy (which shall not constitute notice or service of process) to:

Bryan Cave LLP

120 Broadway, Suite 300

Santa Monica, CA 90401

Attention: David Andersen

Fax:         (310) 260-4161

email:      dgandersen@bryancave.com

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-46-


Notices sent by multiple means, each of which is in compliance with the provisions of this Agreement will be deemed to have been received at the earliest time provided for by this Agreement.

10.4    Entire Agreement. This Agreement, together with the Exhibits hereto, the Seller Disclosure Letter and the Purchaser Disclosure Letter, contains the entire understanding of the parties hereto with respect to the subject matter contained herein and supersedes all prior agreements and understandings, oral and written, with respect thereto, other than the Confidentiality Agreement. This Section 10.4 shall not be deemed to be an admission or acknowledgement by any of the parties hereto that any prior agreements or understandings, oral or written, with respect to the subject matter hereof exist, other than the Confidentiality Agreement.

10.5    Binding Effect; Benefit; Assignment.

(a)    This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors or assigns. Except with respect to Section 10.12, which shall inure to the benefit of the Releasees, all of whom are intended as express third-party beneficiaries thereof, and except as set forth in Section 10.5(b), no other Person not party to this Agreement shall be entitled to the benefits of this Agreement. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto without the prior written consent of the other party.

(b)    The Debt Financing Source shall be third-party beneficiary of the provisions set forth in Section 9.3, Section 10.5(a), Section 10.6, Section 10.8 and Section 10.11.

10.6    Amendment and Modification. This Agreement may not be amended except by a written instrument executed by all parties to this Agreement. Section 9.3, Section 10.5(a), Section 10.5(b), Section 10.8, Section 10.11 and this Section 10.6 shall not be amended or otherwise modified in any way that adversely affects the rights of any Debt Financing Source without the prior written consent of the Debt Financing Source.

10.7    Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed to be an original, and all of which together shall be deemed to be one and the same instrument. Signed counterparts of this Agreement may be delivered by facsimile and by scanned .pdf image.

10.8    Applicable Law. THIS AGREEMENT AND THE LEGAL RELATIONS BETWEEN THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAWS RULES THEREOF. THE STATE OR FEDERAL COURTS LOCATED WITHIN NEW YORK COUNTY IN THE STATE OF NEW YORK SHALL HAVE EXCLUSIVE JURISDICTION OVER ANY AND ALL DISPUTES BETWEEN THE PARTIES HERETO, WHETHER IN LAW OR EQUITY, ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE AGREEMENTS, INSTRUMENTS AND DOCUMENTS CONTEMPLATED HEREBY AND THE PARTIES CONSENT TO AND AGREE TO

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-47-


SUBMIT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS. EACH OF THE PARTIES HERETO HEREBY WAIVES AND AGREES NOT TO ASSERT IN ANY SUCH DISPUTE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY CLAIM THAT (A) SUCH PARTY IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH COURTS, (B) SUCH PARTY AND SUCH PARTY’S PROPERTY IS IMMUNE FROM ANY LEGAL PROCESS ISSUED BY SUCH COURTS OR (C) ANY LITIGATION OR OTHER PROCEEDING COMMENCED IN SUCH COURTS IS BROUGHT IN AN INCONVENIENT FORUM.

THE PARTIES HEREBY AGREE THAT MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION WITH ANY SUCH ACTION OR PROCEEDING IN THE MANNER PROVIDED IN SECTION 10.3, OR IN SUCH OTHER MANNER AS MAY BE PERMITTED BY LAW, SHALL BE VALID AND SUFFICIENT SERVICE THEREOF AND HEREBY WAIVE ANY OBJECTIONS TO SERVICE ACCOMPLISHED IN THE MANNER HEREIN PROVIDED.

10.9    Severability. If any term, provision, agreement, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions, agreements, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic and legal substance of the transactions contemplated hereby are not affected in any manner materially adverse to any party hereto. Upon such a determination, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties hereto as closely as possible in a reasonably acceptable manner in order that the transactions contemplated hereby may be consummated as originally contemplated to the fullest extent possible.

10.10    Specific Enforcement; Limitation on Damages. The parties agree that irreparable damage would occur if any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached or threatened to be breached and that an award of money damages would be inadequate in such event. Accordingly, it is acknowledged that the parties and the third-party beneficiaries of this Agreement shall be entitled to equitable relief, without proof of actual damages, including an Order for specific performance to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement (including any Order sought by the Company and/or Seller to cause Purchaser to perform its agreements and covenants contained in this Agreement), in addition to any other remedy to which they are entitled at law or in equity as a remedy for any such breach or threatened breach. Each party further agrees that neither the other party nor any other Person shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 10.10, and each party hereto irrevocably waives any right it may have to require the obtaining, furnishing or posting of any such bond or similar instrument. Each party further agrees that the only permitted objection that it may raise in response to any action for equitable relief is that it contests the existence of a breach or threatened breach of this Agreement.

10.11    Waiver of Jury Trial. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES, AND SHALL CAUSE ITS

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-48-


SUBSIDIARIES AND AFFILIATES TO WAIVE, ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

10.12    Release. Effective as of the Closing Date, Purchaser, on behalf of itself and its equityholders, Subsidiaries, Affiliates, Representatives, direct and indirect parent companies, managers, officers and directors, and each of their respective successors and assigns (each a “Releasor”), hereby releases, acquits and forever discharges, to the fullest extent permitted by Law, Seller and its past, present and future equityholders, Subsidiaries, Affiliates, Representatives, direct and indirect parent companies, managers, officers and directors (each, a “Releasee”) of, from and against any and all actions, causes of action, claims, demands, damages, judgments, Liabilities, debts, dues and suits of every kind, nature and description whatsoever, arising out of Seller’s ownership of the Interests and operation of the Business, which such Releasor ever had, now has or may have on or by reason of any matter, cause or thing whatsoever on or prior to the Closing Date. Each Releasor agrees not to, and agrees to cause its respective equityholders, Subsidiaries, Affiliates and Representatives, and each of their respective successors and assigns, not to, assert any claim against the Releasees. Notwithstanding the foregoing, Purchaser does not release its rights and interests under this Agreement or the Confidentiality Agreement.

10.13    Rules of Construction. The parties hereto agree that they have been represented by counsel during the negotiation and execution of this Agreement and have participated jointly in the drafting of this Agreement and, therefore, waive the application of any Law, holding or rule of construction providing that ambiguities in an agreement or other document will be construed against the party drafting such agreement or document.

10.14    Headings. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

[Remainder of Page Intentionally Left Blank]

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

-49-


IN WITNESS WHEREOF, Purchaser and Seller have caused this Agreement to be duly executed by their respective officers thereunto duly authorized, all as of the date first above written.

 

IBG BORROWER LLC
By:  

/s/ Jason Schaefer

  Name: Jason Schaefer
  Title:   Vice President and Secretary
DHX SSP HOLDINGS LLC
By:  

/s/ Dana Landry

  Name: Dana Landry
  Title:   CEO

 

Solely for Purposes of Section 3.3:
DHX MEDIA LTD.
By:  

/s/ Dana Landry

  Name: Dana Landry
  Title:   CEO
Solely for Purposes of Section 3.4:
ICONIX BRAND GROUP, INC.
By:  

/s/ John N. Haugh

  Name: John N. Haugh
  Title:   President and CEO

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

Signature Page to Membership Interest Purchase Agreement


Exhibit A

Form of Release

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.


RELEASE OF CLAIMS

This Release of Claims (this “Release”) is made and entered into as of [●], 2017 by and between IBG Borrower LLC, a Delaware limited liability (“Seller”), on the one hand, and DHX SSP Holdings LLC, a limited liability company organized under the Laws of the State of Delaware (“Purchaser”), on the other hand.

WHEREAS, Seller is a party to that certain Membership Interest Purchase Agreement, dated as of May 9, 2017, by and among Purchaser, Seller, and, solely for purposes of Section 3.3 and Section 3.4 thereof, DHX Media Ltd. and Iconix Brand Group, Inc. respectively (the “Purchase Agreement”);

WHEREAS, this Release is being executed and delivered to Purchaser in connection with the Purchase Agreement in order to induce Purchaser to enter into the transactions contemplated thereby; and

WHEREAS, unless otherwise defined herein, capitalized terms shall have the meanings ascribed to them in the Purchase Agreement.

NOW, THEREFORE, in consideration of the covenants and obligations set forth herein, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

1.    Release. Seller, for itself and on behalf of its members, managers, officers, directors, agents, representatives, successors, assigns and Affiliates (other than the Purchased Companies) (collectively, the “Releasing Parties”), hereby releases, remises and forever discharges the Company and its respective successors and assigns (the “Released Parties”) from any and all actions, causes of action, claims, demands, rights, suits, accountings, debts, dues, accounts, bonds, covenants, contracts, agreements, duties and obligations of any kind or nature, known or unknown, whether at law or in equity, by reason of any matter or thing that either Seller has, had or may have relating to the Business and arising out of facts and circumstances that existed on or prior to the date hereof against any of the Released Parties (collectively, “Claims”); provided, however, that this Release shall specifically exclude any Claims relating to or arising from the obligations of any of the Released Parties as set forth in the Purchase Agreement or any document or agreement to which any of the Released Parties are party and contemplated to be entered into pursuant to the Purchase Agreement or otherwise entered into in connection with the transactions contemplated by the Purchase Agreement.

2.    Status of Claims. Seller represents and warrants that it has not assigned or transferred, or purported to assign or transfer to any Person, any right, title or interest in or to the Claims.

3.    Binding on Successors. The benefits and burdens created by this Release shall inure to the benefit of, and shall be binding upon, the successors, assigns, representatives and beneficiaries of the parties hereto.

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

A-2


4.    Governing Law. This Release shall be governed in all respects by the laws of New York, without regard to conflicts of law principles.

5.    Amendment and Waiver. Any amendment to or modification of this Release, or any waiver of any term or condition set forth herein, shall be effective only if in writing signed by each of the parties hereto. Except to the extent otherwise expressly set forth in writing, a waiver of any breach or failure to enforce any of the terms or conditions of this Release shall not in any way affect, limit or waive a party’s rights hereunder at any time to enforce strict compliance thereafter with every term or condition of this Release.

6.    Severability. If any term or provision of this Release or the application thereof to any circumstance shall, in any jurisdiction, be invalid or unenforceable, such term or provision shall be ineffective as to such jurisdiction to the extent of such invalidity or unenforceability, without invalidating or rendering unenforceable (i) such term or provision in any other jurisdiction, (ii) the remaining terms and provisions of this Release or (iii) the application of such terms and provisions to circumstances other than those as to which such term or provision has been held invalid or unenforceable.

7.    Counterparts. This Release may be executed in any number of counterparts, and each such counterpart hereof shall be deemed to be an original instrument, but all such counterparts together shall constitute but one agreement.

8.    Purchase Agreement Controls. In the event that any term or condition contained herein conflicts with any term or condition contained in the Purchase Agreement, the terms and conditions contained in the Purchase Agreement shall prevail.

IN WITNESS WHEREOF, the parties have caused this Release to be duly executed as of the date first written above.

IBG BORROWER LLC

 

By:  

 

Print Name:  

 

Title:  

 

DHX SSP HOLDINGS LLC
By:  

 

Print Name:  

 

Title:  

 

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

A-3


Exhibit B

Interests Assignment and Assumption Agreement

 

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.


ASSIGNMENT AND ASSUMPTION AGREEMENT

This ASSIGNMENT AND ASSUMPTION AGREEMENT (this “Agreement”) is dated as of [•], 2017 (the “Effective Date”), by and between IBG Borrower, a limited liability company organized under the Laws of the State of Delaware (“Seller”) and DHX SSP Holdings LLC, a limited liability company organized under the Laws of the State of Delaware (“Purchaser”).

RECITALS

WHEREAS, Seller, Purchaser and, solely for purposes of certain provisions specified therein, Iconix Brand Group, Inc. and DHX Media Ltd., are parties to that certain Membership Interest Purchase Agreement, dated as of May 9, 2017 (the “Purchase Agreement”);

WHEREAS, under the Purchase Agreement, Seller has agreed to sell, assign, convey, transfer and deliver all of Seller’s right, title and interest, obligation, acknowledgement, Liabilities, duties and burdens under and with respect to the Interests to Purchaser, and Purchaser has agreed to accept and assume from Seller all of Seller’s right, title and interest, obligation, acknowledgement, Liabilities, duties and burdens under and with respect to the Interests;

WHEREAS, Purchaser has agreed to succeed Seller to the rights, benefits and obligations as a member of Shortcake IP Holdings LLC (“Company”); and

WHEREAS, each of Seller and Purchaser must deliver this Agreement as a condition to Closing pursuant to the Purchase Agreement.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

1.    Capitalized Terms. Capitalized terms used herein without definition shall have the meanings given to such terms in the Purchase Agreement.

2.    Assignment. Seller does hereby assign, transfer, convey, and deliver to Purchaser, effective as of the Closing, all of Seller’s right, title, benefit, privilege and interest, obligation, acknowledgement, Liabilities, duties and burdens in, under and to the Interests.

3.    Assumption. As of the Closing, Purchaser accepts the assignment set forth in Section 2 and assumes and agrees to be bound by Seller’s obligations, Liabilities, duties and burdens (i) with respect to the Interests and (ii) as a member of the Company.

4.    Release of Seller. The parties hereto acknowledge and agree that (a) except as provided in the Purchase Agreement or in any document or agreement executed in connection therewith, the assignment by Seller in Section 2 is made without recourse, representation or warranty of any kind by Seller, and (b) on and as of the Closing, Seller shall have no further obligation, Liability, duty or burden in respect of the Interests or as a member of the Company.

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

B-2


5.    Conflicts with Purchase Agreement. This Agreement shall be subject in all respects to the Purchase Agreement and shall be construed so as to carry out the intentions of the parties thereto as expressed in the Purchase Agreement. In the event of a conflict between the terms and conditions of this Agreement and the terms and conditions of the Purchase Agreement, the terms and conditions of the Purchase Agreement shall govern.

6.    Miscellaneous. Article X of the Purchase Agreement is hereby incorporated herein mutatis mutandis by this reference; provided that references to “this Agreement,” “hereto,” “hereunder,” and similar references in such sections of the Purchase Agreement shall pertain to this Agreement.

[Remainder of page intentionally blank; signature page follows]

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

B-3


IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives.

 

IBG BORROWER LLC
By:  

 

   Name:
   Title:
DHX SSP HOLDINGS LLC
By:  

 

   Name:
   Title:

Signature Page to Assignment and Assumption Agreement

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

B-4


 

 

SELLER DISCLOSURE LETTER

TO THE

MEMBERSHIP INTEREST PURCHASE AGREEMENT

BY AND AMONG

IBG BORROWER LLC,

ICONIX BRAND GROUP, INC.

DHX MEDIA LTD.

AND

DHX SSP HOLDINGS LLC

DATED MAY 9, 2017

 

 

 

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.


This document constitutes the Seller Disclosure Letter (the “Seller Disclosures”) referenced in the Membership Interest Purchase Agreement (the “Agreement”), dated May 9, 2017, by and among IBG Borrower LLC, a limited liability company organized under the Laws of Delaware (“Seller”), and solely for purposes of Section 3.4 of the Agreement, Iconix Brand Group, Inc. a corporation organized under the laws of the State of Delaware, on the one hand, and DHX SSP Holdings LLC, a limited liability company organized under the Laws of Delaware (“Purchaser”), and solely for the purposes of Section 3.3 of the Agreement, DHX Media Ltd. a corporation organized under the Laws of Canada (“DHX”), on the other hand. Capitalized terms used herein and not otherwise defined shall have the respective meanings ascribed to such terms in the Agreement.

Matters reflected in the Seller Disclosures are not necessarily limited to matters required by the Agreement to be reflected in the Seller Disclosures. The Seller may, at its option, include in the Seller Disclosures items that are not material in order to avoid any misunderstanding, and such inclusion shall not be deemed to be an acknowledgment or representation that such items are material, to establish any standard of materiality or to define further the meaning of such terms for purposes of the Agreement, the Seller Disclosures or otherwise. To the extent any such additional matters are included, they are included for informational purposes and do not necessarily include other matters of a similar nature. In no event shall any disclosure of additional matters be deemed or interpreted to broaden or otherwise amend any of the covenants or representations or warranties in the Agreement. The disclosure of any matter or item in the Seller Disclosures shall not be deemed to constitute an acknowledgment that such matter or item is material to a representation or warranty set forth in the Agreement and shall not be used as a basis for interpreting the terms “material,” “materially” or “materiality” or any word or phrase of similar import, and does not mean that such matter or item would, alone or together with any other matter or item, reasonably be expected to be material. Headings and subheadings have been inserted in the Seller Disclosures for convenience of reference only and shall to no extent have the effect of amending or changing the express description thereof as set forth in the Agreement, or modifying any of the representations and warranties contained in the Agreement or any of the qualifications or exceptions set forth in the Agreement relating to such representations and warranties, including, without limitation, any qualifications based on knowledge. All references to “Sections” in the Seller Disclosures shall be deemed to refer to the provisions of the Agreement, unless the context requires otherwise. Disclosure of any fact or item in any Schedule referenced by a particular Section in the Agreement shall be deemed to have been disclosed with respect to every other Section in the Agreement to the extent that it is reasonably apparent from the face of such disclosure that such disclosure would apply to such other Sections.

The specification of any dollar amount or the inclusion of any item in the Seller Disclosures is not intended to imply that the amounts, or higher or lower amounts, or the items so included, or other items, are or are not required to be disclosed (including whether such amounts or items are required to be disclosed as material or threatened) or are within or outside of the ordinary course of business, and no party to the Agreement shall use the fact of the setting of the amounts or the fact of the inclusion of any item in the Seller Disclosures in any dispute or controversy between the parties as to whether any obligation, item or matter not described or included in the Seller Disclosures is or is not required to be disclosed (including whether the amount or items are required to be disclosed as material or threatened) or is within or outside of the ordinary course of business for purposes of the Seller Disclosures and the Agreement.

 

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

2


The information contained in the Seller Disclosures is disclosed solely for purposes of the Agreement, and no information contained herein or therein shall be deemed to be an admission by any party to the Agreement to any third party of any matter whatsoever (including any violation of any Law or Order or breach of contract). The parties to the Agreement do not assume any responsibility to any Person that is not a party to the Agreement for the accuracy of any information set forth in the Seller Disclosures. The information set forth in the Seller Disclosures was not prepared or disclosed with a view to its potential disclosure to others. Subject to applicable Law, such information is disclosed in confidence for the purposes contemplated in the Agreement and is subject to the confidentiality provisions of the Confidentiality Agreement. Moreover, in disclosing the information in the Seller Disclosures, each party to the Agreement expressly does not waive any attorney-client privilege associated with such information or any protection afforded by the work-product doctrine with respect to any of the matters disclosed or discussed herein.

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

3


Section 1.1(b)

Permitted Liens

[***]

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

4


Section 1.5

Knowledge

 

    John Haugh

 

    Dave Jones

 

    Roz Nowicki

 

    Susan Osit

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

5


Article IV

Representation and Warranties of Seller

Section 4.2(b)

Noncontravention; Consents and Approvals

The following agreement requires notice of a change of control:

[***]

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

6


Section 4.3

Title to Interests

None.

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

7


Section 4.4(a)

Company

None.

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

8


Section 4.4(b)

Capitalization

 

 Entity

  

 Parent(s)

  

 Number of Shares/Units
 Owned by Parent(s)

    Total Shares
 Outstanding                

 Shortcake IP Holdings LLC

    IBG Borrower LLC           100%     N/A

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

9


Section 4.5(a)

Financial Statements

[***]

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

10


Section 4.5(c)

Undisclosed Liabilities

None.

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

11


Section 4.6

Consents and Approvals (Governmental)

None.

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

12


Section 4.7

Title to Non-IP Assets

See Section 4.19.

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

13


Section 4.9(a)

Litigation and Other Proceedings

None.

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

14


Section 4.9(b)

Litigation and Other Proceedings: Obligation to Indemnify

None.

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

15


Section 4.9(c)

Orders

None.

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

16


Section 4.10

Absence of Certain Changes and Events

None.

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

17


Section 4.11(a)

Material Contracts: List

Section 4.11(a)(i)

[***]

Section 4.11(a)(ii)

 

Agent

  

Agreement or Amendment

  

Date

[***]    Agreement, Amendment A, Amendment B, Amendment C    1-1-15, 10-1-15, 1-1-16, 1-1-17
[***]    Agreement    2-16-17
[***]    Agreement, Amendment A, Amendment B6    5-1-12, 1-1-15, 10-1-15
[***]    Agreement, Amendment A    1-1-16, 4-11-17
[***]    Agreement, Amendment A    1-1-16, 3-30-17
[***]    Agreement, Amendment A    1-1-16, 3-30-17
[***]    Agreement, Amendment A    1-1-16, 3-9-16
[***]    Agreement, Amendment A, Amendment B, Amendment C    1-1-13, 10-1-15, 1-1-16, 2-7-17
[***]    Agreement, Amendment A, Amendment B    7-12-13, 7-1-14, 10-1-15
[***]    Agreement, Amendment A    1-1-16, 9-29-16
[***]    Agreement    1-1-16
[***]    Agreement    7-27-2016
[***]    Agreement    1-1-16

Section 4.11(a)(iii)

None.

Section 4.11(a)(iv)

None.

Section 4.11(a)(v)

None.

Section 4.11(a)(vi)

None.

 

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

18


Section 4.11(a)(vii)

[***]

Co-Production Agreement, dated as of March 15, 2016, between [***].

Consolidated, Amended, and Restated Interactive App Development Licensing and Distribution Agreement, dated as of September 1, 2016, between [***].

Acquisition Agreement between [***]

License Agreement, dated as of March 1, 2015, between [***]

Section 4.11(a)(viii)

Relevant amendments included in the applicable sections listed above.

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

19


Section 4.11(b)

Material Contracts: Force and Effect

None.

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

20


Section 4.11(c)

Material Contracts: Compliance

Section 4.11(c)(i)

None.

Section 4.11(c)(ii)

None.

Section 4.11(c)(iii)

None.

Section 4.11(c)(iv)

None.

Section 4.11(c)(v)

None.

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

21


Section 4.12(d)

Tax Matters

[***].

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

22


Section 4.13(a)

Intellectual Property: Trademarks

See attached list of Trademarks.

Domain Names:

 

Domain Name

  

Country

  

Registration Date  

  

Registrant Organization

charlotte-aux-fraises.fr

   France    15-Dec-2008    Corporation Service Company France*

charlotteauxfraises.com

   gTLD    05-Feb-2010    Shortcake IP Holdings LLC

charlotteauxfraises.fr

   France    15-Dec-2008    Corporation Service Company France*

emilyerdbeer.com

   gTLD    11-Jun-2009    Shortcake IP Holdings LLC

emilyerdbeer.de.com

   Alternate Extension    11-Jun-2009    Shortcake IP Holdings LLC

fragolina-dolce-cuore.it

   Italy    10-Nov-2014    Corporation Service Company France*

fragolinadelcuore.it

   Italy    17-Apr-2014    Corporation Service Company France*

fragolinadolcecuore.it

   Italy    10-Nov-2014    Corporation Service Company France

fraisifanclub.com

   gTLD    04-Jul-2010    Shortcake IP Holdings LLC

fraisinette.ca

   Canada    05-Jun-2007    Shortcake IP Holdings LLC

fresita.com.co

   Colombia    29-Jul-2010    Shortcake IP Holdings LLC

frutillita.cl

   Chile    21-Jun-2010    Shortcake IP Holdings LLC

frutillita.com.ar

   Argentina    14-Mar-2014    Corporation Service Company*

frutillita.com.py

   Paraguay    23-Jun-2016    Shortcake IP Holdings LLC

moranguinho.br.com

   Alternate Extension    11-Jun-2009    Shortcake IP Holdings LLC

moranguinho.com.br

   Brazil    05-Mar-2014    Corporation Service Company*

officialstrawberryshortcake.com

   gTLD    18-Aug-2009    Shortcake IP Holdings LLC

officialstrawberryshortcake.net

   gTLD    18-Aug-2009    Shortcake IP Holdings LLC

officialstrawberryshortcake.org

   gTLD    18-Aug-2009    Shortcake IP Holdings LLC

portalmoranguinho.com.br

   Brazil    05-Nov-2012    Corporation Service Company*

rosita-fresita.com

   gTLD    07-Nov-2014    Shortcake IP Holdings LLC

rosita-fresita.com.mx

   Mexico    16-Jun-2009    Shortcake IP Holdings LLC

rositafresita.com.mx

   Mexico    16-Jun-2009    Shortcake IP Holdings LLC

strawberry-shortcake.ca

   Canada    18-Feb-2010    Shortcake IP Holdings LLC

strawberry-shortcake.co.uk

   United Kingdom    24-Jun-2008    Shortcake IP Holdings LLC

strawberry-shortcake.com

   gTLD    29-Jan-2010    Shortcake IP Holdings LLC

strawberry-shortcake.com.au

   Australia    14-Feb-2014    Wild Pumpkin Licensing International Pty Ltd*

strawberry-shortcake.nl

   Netherlands    17-Feb-2010    Shortcake IP Holdings LLC

strawberry-shortcake.org

   gTLD    24-Feb-2010    Shortcake IP Holdings LLC

strawberrycake.net

   gTLD    14-Jun-2011    Shortcake IP Holdings LLC

strawberryshortcake-online.com

   gTLD    18-Aug-2009    Shortcake IP Holdings LLC

strawberryshortcake-online.net

   gTLD    18-Aug-2009    Shortcake IP Holdings LLC

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

23


strawberryshortcake-online.org

   gTLD    18-Aug-2009    Shortcake IP Holdings LLC

strawberryshortcake.ae

   United Arab Emirates    06-Nov-2014    Shortcake IP Holdings LLC

strawberryshortcake.co

   Colombia    01-Jun-2010    Shortcake IP Holdings LLC

strawberryshortcake.co.il

   Israel    16-May-2016    Shortcake IP Holdings LLC

strawberryshortcake.co.nl

   Alternate Extension    18-Feb-2010    Shortcake IP Holdings LLC

strawberryshortcake.co.nz

   New Zealand    18-Nov-2010    Shortcake IP Holdings LLC

strawberryshortcake.co.th

   Thailand    16-Dec-2014    Shortcake IP Holdings LLC

strawberryshortcake.co.za

   South Africa    11-Aug-2014    Shortcake IP Holdings LLC

strawberryshortcake.com

   gTLD    31-Aug-2011    Shortcake IP Holdings LLC

strawberryshortcake.com.au

   Australia    03-Jun-2007    Wild Pumpkin Licensing International Pty Ltd*

strawberryshortcake.com.co

   Colombia    06-Aug-2010    Shortcake IP Holdings LLC

strawberryshortcake.com.hk

   Hong Kong    06-Nov-2014    Corporation Service Company*

strawberryshortcake.com.pa

   Panama    12-May-2016    Shortcake IP Holdings LLC

strawberryshortcake.com.pe

   Peru    10-Jun-2009    Shortcake IP Holdings LLC

strawberryshortcake.gr

   Greece    05-Nov-2014    Shortcake IP Holdings LLC

strawberryshortcake.in

   India    02-Oct-2014    Shortcake IP Holdings LLC

strawberryshortcake.jp

   Japan    06-Nov-2014    Corporation Service Company*

strawberryshortcake.mobi

   gTLD    26-Sep-2006    Shortcake IP Holdings LLC

strawberryshortcake.my

   Malaysia    24-Dec-2014    Corporation Service Company*

strawberryshortcake.net

   gTLD    30-Aug-2011    Shortcake IP Holdings LLC

strawberryshortcake.org

   gTLD    18-Aug-2009    Shortcake IP Holdings LLC

strawberryshortcake.pe

   Peru    10-Jun-2009    Shortcake IP Holdings LLC

strawberryshortcake.ph

   Philippines    29-Sep-2014    Shortcake IP Holdings LLC

strawberryshortcake.pl

   Poland    05-Nov-2014    Shortcake IP Holdings LLC

strawberryshortcake.pt

   Portugal    21-Nov-2014    Shortcake IP Holdings LLC

strawberryshortcake.ru

   Russian Federation    01-May-2014    Shortcake IP Holdings LLC

strawberryshortcake.se

   Sweden    26-Sep-2014    Shortcake IP Holdings LLC

strawberryshortcake.sg

   Singapore    10-Nov-2015    Shortcake IP Holdings LLC

strawberryshortcake.tw

   Taiwan    12-Aug-2014    Shortcake IP Holdings LLC

strawberryshortcake.uk.com

   Alternate Extension    11-Jun-2009    Shortcake IP Holdings LLC

strawberryshortcakedvds.com

   gTLD    17-Nov-2009    Shortcake IP Holdings LLC

strawberryshortcakefun.com

   gTLD    12-Jan-2010    Shortcake IP Holdings LLC

strawberryshortcakelatam.com

   gTLD    10-Jun-2009    Shortcake IP Holdings LLC

strawberryshortcaketoys.ca

   Canada    19-Feb-2010    Shortcake IP Holdings LLC

tarta-de-fresa.es

   Spain    25-Jul-2008    Shortcake IP Holdings LLC

tartadefresa.com.es

   Spain    18-Aug-2009    Shortcake IP Holdings LLC

tartadefresa.es

   Spain    11-Aug-2007    Shortcake IP Holdings LLC

zomberryshortcake.com

   gTLD    29-Jan-2013    Shortcake IP Holdings LLC

* Domains marked with an asterisk are held in the name of a Person other than the Company.

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

24


Section 4.13(b)

Intellectual Property: Copyrights

 

Title of Work

  

    Registration No.    

  

     Registration Date

  

      Country      

Adorable apple dumplin’s book / by Nicole Okaty. (Series: Strawberry Shortcake)    TX0006062610    10/21/14    U.S.
Strawberry shortcake : custard and pupcake’s books : a pet pals adventure.    TX0006167404    05/09/05    U.S.
Blueberry Muffin’s Book (Series: Strawberry Shortcake)    TX0006123349    03/08/05    U.S.
Angel Cake’s cupcake book : a sweet and sugary adventure. (Series: Strawberry Shortcake)    TX0006109369    01/11/05    U.S.
New Strawberry Shortcake Baby    VA 1-924-998    08/21/14    U.S.
STRAWBERRY SHORTCAKE ALT CELEBRATION QRG    Vau 1-182-161    08/14/14    U.S.
STRAWBERRY SHORTCAKE BABY PLAYROOM QUICK REFERENCE GUIDE    VA 1-924-997    08/14/14    U.S.
STRAWBERRY SHORTCAKE BABY PACKAGING GUIDE    VA 1-925-002    08/12/14    U.S.
STRAWBERRY SHORTCAKE BABY PETS REFRESH    VA 1-924-996    08/12/14    U.S.
STRAWBERRY SHORTCAKE’S EASTER EGG HUNT (Sticker Stories)    TX0007935617    08/01/14    U.S.
STRAWBERRY SHORTCAKE: The Berry Bitty PrinceSSC Pageant.    TX0007800597    11/05/13    U.S.
STRAWBERRY SHORTCAKE: A Day at the Apple Orchard.    TX0007782586    09/30/13    U.S.
STRAWBERRY SHORTCAKE: Show-and- Tell (Penguin Young Readers: Level 2    TX0007784939    09/20/13    U.S.
Strawberry Shortcake Baby Safari Style Guide    VA0001946937    08/18/13    U.S.
STRAWBERRY SHORTCAKE BABY WITH PACIFIER    VA-1-877-516    08/08/13    U.S.
STRAWBERRY SHORTCAKE CUPCAKE STYLE GUIDE    VA-1-877-505    06/26/13    U.S.
STRAWBERRY SHORTCAKE: A Brand-New Look! (Penguin Young Readers: Level 2)    TX0007733990    06/07/13    U.S.
STRAWBERRY SHORTCAKE: A Berry Bitty Ballet.    TX0007716239    05/15/13    U.S.
STRAWBERRY SHORTCAKE: A Berry Bitty Christmas.    TX0007693548    02/19/13    U.S.
CHIFFON    Vau-1-122-642    01/18/13    U.S.
CINNAPUP    VAU1-122-834    01/18/13    U.S.
HENNA    Vau-1-122-643    01/18/13    U.S.
HUCKLEBERRY PIE 2012    Vau1-122-644    01/18/13    U.S.
MARMALADE    VAu1-122-647    01/18/13    U.S.
PITTERPATCH    VAu1-122-813    01/18/13    U.S.
SCOUTY    VAu1-122-811    01/18/13    U.S.
TOMTOM PUPPY    VAu1-122-832    01/18/13    U.S.
CHIFFON SERIES ART    VAU1-122-830    01/08/13    U.S.
CINNAPUP SERIES ART    VAu1-122-817    01/08/13    U.S.
HUCKLEBERRY PIE SERIES ART    VAU1-122-645    01/08/13    U.S.
MARMALADE SERIES ART    VAU1-122-824    01/08/13    U.S.
PITTERPATCH SERIES ART    VAu1-122-814    01/08/13    U.S.
TOMTOM PUPPY SERIES ART    Vau-1-122-648    01/08/13    U.S.
STRAWBERRY SHORTCAKE PRECIOUS PRINCESSC STYLE GUIDE    VA1-856-350    11/06/12    U.S.
STRAWBERRY SHORTCAKE WIFI STYLE GUIDE    VA1-845-067    11/06/12    U.S.
BLUEBERRY MUFFIN WITH BOOK    VA 1-837-895    10/11/12    U.S.
ORANGE MARMALADE WITH SHOPPING BAGS    VA 1-837-897    10/11/12    U.S.
PLUM PUDDING BALLET POSE    VA 1- 837-876    10/11/12    U.S.
RASPBERRY TORE WITH LEFT HAND ON HIP    VA 1-837-931    10/11/12    U.S.
STRAWBERRY SHORTCAKE WIFI QUICK REFERENCE GUIDE    VA 1-838-194    10/11/12    U.S.
STRAWBERRY SHORTCAKE BERRY BITTY ADVENTURES - SEASON 2 - EPISODE 202 - ROOM AT THE TOP - SCRIPT    PA 1-808-699    07/19/12    U.S.
STRAWBERRY SHORTCAKE BERRY BITTY ADVENTURES - SEASON 2 - EPISODE 203 - STARLIGHT, STAR BRIGHT - SCRIPT    PA 1-805-759    07/19/12    U.S.

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

25


Title of Work

  

    Registration No.    

  

     Registration Date

  

      Country      

STRAWBERRY SHORTCAKE BERRY BITTY ADVENTURES - SEASON 2 - EPISODE 204 - PRACTICE MAKES PERFECT - SCRIPT    PA 1-805-760    07/19/12    U.S.
STRAWBERRY SHORTCAKE BERRY BITTY ADVENTURES - SEASON 2 - EPISODE 205 - TOP TALENT - SCRIPT    PA 1-805-762    07/19/12    U.S.
STRAWBERRY SHORTCAKE BERRY BITTY ADVENTURES - SEASON 2 - EPISODE 206 - A STAR IS FASHIONED- SCRIPT    PA 1-805-761    07/19/12    U.S.
STRAWBERRY SHORTCAKE BERRY BITTY ADVENTURES - SEASON 2 - EPISODE 207 - NO BLUEBERRY IS AN ISLAND - SCRIPT    PA 1-805-755    07/19/12    U.S.
STRAWBERRY SHORTCAKE BERRY BITTY ADVENTURES - SEASON 2 - EPISODE 208 - WHERE THE BERRY BREEZE BLOWS - SCRIPT    PA 1-805-756    07/19/12    U.S.
STRAWBERRY SHORTCAKE BERRY BITTY ADVENTURES - SEASON 2 - EPISODE 209 - THE BERRY BEST VACATION - SCRIPT    PA 1-805-757    07/19/12    U.S.
STRAWBERRY SHORTCAKE BERRY BITTY ADVENTURES - SEASON 2 - EPISODE 210 - THE BERRY LONG WINTER - SCRIPT    PA 1-805-758    07/19/12    U.S.
STRAWBERRY SHORTCAKE BERRY BITTY ADVENTURES - SEASON 2 - EPISODE 211 - THE BIG FREEZE - SCRIPT    PA 1-805-754    07/19/12    U.S.
STRAWBERRY SHORTCAKE BERRY BITTY ADVENTURES - SEASON 2 - EPISODE 212 - ON ICE - SCRIPT    PA 1-805-752    07/19/12    U.S.
STRAWBERRY SHORTCAKE BERRY BITTY ADVENTURES - SEASON 2 - EPISODE 213 - ON THE ROAD - SCRIPT    PA 1-805-753    07/19/12    U.S.
STRAWBERRY SHORTCAKE BERRY BITTY ADVENTURES - SEASON 2 - EXPISODE 201 - THE BERRY BIG HARVEST - SCRIPT    PA 1-815-953    07/19/12    U.S.
STRAWBERRY SHORTCAKE BERRY BITTY ADVENTURES - SEASON 2 - EPISODE 201, THE BERRY BIG HARVEST - DVD    PA1-822-937    07/18/12    U.S.
STRAWBERRY SHORTCAKE BERRY BITTY ADVENTURES - SEASON 2 - EPISODE 202, ROOM AT THE TOP - DVD    PA1-819-424    07/18/12    U.S.
STRAWBERRY SHORTCAKE BERRY BITTY ADVENTURES - SEASON 2 - EPISODE 203, STARLIGHT, STAR BRIGHT - DVD    PA1-822-924    07/18/12    U.S.
STRAWBERRY SHORTCAKE BERRY BITTY ADVENTURES - SEASON 2 - EPISODE 204 - PRACTICE MAKES PERFECT - DVD    PA1-822-920    07/18/12    U.S.
STRAWBERRY SHORTCAKE BERRY BITTY ADVENTURES - SEASON 2 - EPISODE 205, TOP TALENT - DVD    PA1-822-926    07/18/12    U.S.
STRAWBERRY SHORTCAKE BERRY BITTY ADVENTURES - SEASON 2 - EPISODE 206, A STORE IS FASHIONED - DVD    PA1-819-422    07/18/12    U.S.
STRAWBERRY SHORTCAKE BERRY BITTY ADVENTURES - SEASON 2 - EPISODE 209, THE BERRY BEST VACATION DVD    PA1-822-933    07/18/12    U.S.
STRAWBERRY SHORTCAKE BERRY BITTY ADVENTURES - SEASON 2 - EPISODE 210, THE BERRY LONG WINTER, DVD    PA1-822-929    07/18/12    U.S.
STRAWBERRY SHORTCAKE BERRY BITTY ADVENTURES-SEASON 2- EPISODE 207, NO BLUEBERRY IS AN ISLAND DVD    PA1-819-423    07/18/12    U.S.
STRAWBERRY SHORTCAKE BERRY BITTY ADVENTURES-SEASON 2- EPISODE 213 - ON THE ROAD DVD    PA1-829-111    07/18/12    U.S.
STRAWBERRY SHORTCAKE BERRY BITTY ADVENTURS - SEASON 2-EPISODE 208, WHERE THE BERRY BREEZE BLOWS - DVD    PA1-822-938    07/18/12    U.S.
STRAWBERRY SHORTCAKE: Meet Cherry Jam!    TX0007577943    07/18/12    U.S.
STRAWBERRY SHORTCAKE: School Friends (Penguin Young Readers: Level 2)    TX0007574565    07/18/12    U.S.
STRAWBERY SHORTCAKE BERRY BITTY ADVENTURES - SEASON 2 - EPISODE 211, THE BIG FREEZE - DVD    PA1-822-928    07/18/12    U.S.
STRAWBERY SHORTCAKE BERRY BITTY ADVENTURES - SEASON 2 - EPISODE 212, ON ICE - DVD    PA1-822-931    07/18/12    U.S.
LEMON MERINGUE STANDING WITH GLASSC    VA 1-819-864    04/20/12    U.S.
STRAWBERRY SHORTCAKE: The Butterfly Ride.    TX0007517774    04/17/12    U.S.
STRAWBERRY SHORTCAKE SPRING 2009 PRETTY PICKIN’S    VA 1-815-998    04/05/12    U.S.
CUSTARD CAT WALKING    VA 1-810-165    03/26/12    U.S.
LEMON MERINGUE STANDING    VA 1-810-176    03/26/12    U.S.
PUPCAKE DOG SITTING    VA 1-810-172    03/26/12    U.S.
STRAWBERRY SHORTCAKE CILEK KIZ    VA 1-810-178    03/26/12    U.S.

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

26


Title of Work

  

    Registration No.    

  

     Registration Date

  

      Country      

STRAWBERRY SHORTCAKE SITTING    VA 1-810-175    03/26/12    U.S.
STRAWBERRY SHORTCAKE SITTING ON FLOWER PETALS    VA 1-810-173    03/26/12    U.S.
STRAWBERRY SHORTCAKE STANDING WITH ARMS OUT AT SIDE    VA 1-810-170    03/26/12    U.S.
STRAWBERRY SHORTCAKE STANDING WITH STRAWBERRIES    VA 1-810-171    03/26/12    U.S.
STRAWBERRY SHORTCAKE THINKING    VA 1-810-167    03/26/12    U.S.
STRAWBERRY SHORTCAKE WITH HAT DANCING    VA 1-810-163    03/26/12    U.S.
STRAWBERRY SHORTCAKE: Babysitting Blues.    TX0007512772    03/21/12    U.S.
STRAWBERRY SHORTCAKE: Lost and Found (Penguin Young Readers: Level 2)    TX0007528840    03/21/12    U.S.
STRAWBERRY SHORTCAKE: The Valentine’s Day Mix-Up.    TX0007493319    01/31/12    U.S.
STRAWBERRY SHORTCAKE SLEEPS OVER.    TX0007459505    12/20/11    U.S.
STRAWBERRY SHORTCAKE: STICKER STYLES: BERRY PRETTY FASHIONS    TX0007459517    12/20/11    U.S.
STRAWBERRY SHORTCAKE: Berry Bitty Bakers.    TX0007448968    10/25/11    U.S.
STRAWBERRY SHORTCAKE DANCE POSE    VA 1-790-509    10/18/11    U.S.
STRAWBERRY SHORTCAKE: Best Friends Forever.    TX0007432376    10/13/11    U.S.
STRAWBERRY SHORTCAKE: Makeover MadneSSC.    TX0007432352    10/13/11    U.S.
STRAWBERRY SHORTCAKE’S SPOOKY NIGHT.    TX0007432355    10/13/11    U.S.
STRAWBERRY SHORTCAKE: All Aboard! (Sticker Stories)    TX0007407954    08/12/11    U.S.
CHERRY JAM WAVING    VA 1-837-901    04/05/11    U.S.
STRAWBERRY SHORTCAKE: Easter Surprise.    TX0007337011    03/16/11    U.S.
STRAWBERRY SHORTCAKE: The Snow Dance.    TX0007355149    01/25/11    U.S.
STRAWBERRY SHORTCAKE: Berry Little PrinceSSCes.    VA0001750392    11/26/10    U.S.
STRAWBERRY SHORTCAKE: My First Sleepover.    TX0007273702    10/06/10    U.S.
STRAWBERRY SHORTCAKE’S COSTUME PARTY (Sticker Stories)    TX0007273583    10/06/10    U.S.
STRAWBERRY SHORTCAKE BERRY BASIC 2009 STYLE GUIDE    VA1-729-070    08/12/10    U.S.
STRAWBERRY SHORTCAKE: Ballet School (All Aboard Reading: Station Stop 1)    TX0007216161    07/21/10    U.S.
STRAWBERRY SHORTCAKE: A Picnic Adventure (All Aboard Reading: Station Stop 1)    TX0007237286    06/25/10    U.S.
A Berry Bitty World Record Episode 109    PA 1-682-238    05/20/10    U.S.
A Circle of Friends Episode 120    PA 1-682-232    05/20/10    U.S.
A Stitch in Time Episode 102    PA 1-682-259    05/20/10    U.S.
Babysitter Blues Episode 104    PA 1-682-280    05/20/10    U.S.
Berry Best Berryfest PrinceSSC Episode 111    PA 1-682-236    05/20/10    U.S.
Berry Best Choice Episode 113    PA 1-682-237    05/20/10    U.S.
Different Waltz for Different Faults Episode 118    PA 1-682-247    05/20/10    U.S.
Fish Out of Water Episode 101    PA 1-682-274    05/20/10    U.S.
Good Citizens Club Episode 124    Pau 3-461-032    05/20/10    U.S.
Hair Today Gone Tomorrow Episode 105    PA 1-682-252    05/20/10    U.S.
Happy First Frost Episode 119    PA 1-682-231    05/20/10    U.S.
How You Play The Game Episode 123    Pau 3-461-039    05/20/10    U.S.
Lost and Found Episode 126    Pau 3-461-038    05/20/10    U.S.
Manners Meltdown Episode 116    PA 1-682-261    05/20/10    U.S.
Nice as Nails Episode 122    Pau 3-461-041    05/20/10    U.S.
Nothing to Fear But Berries Themselves Episode 114    PA 1-682-233    05/20/10    U.S.
Pop Goes the Garden Episode 106    PA 1-682-282    05/20/10    U.S.
Strawberry’s Berry Best Parade Episode 112    PA0001682230    05/20/10    U.S.
Strawberry’s House Pest Episode 108    PA 1-682-249    05/20/10    U.S.
Team for Two Episode 125    Pau 3-461-043    05/20/10    U.S.

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

27


Title of Work

  

    Registration No.    

  

     Registration Date

  

      Country      

The Berry Best You Can Be Episode 107    PA 1-682-245    05/20/10    U.S.
The Glimmerberry Ball Episode 121    PA 1-682-264    05/20/10    U.S.
Too Cool for Rules Episode 110    PA 1-682-240    05/20/10    U.S.
Trading Sizes Episode 117    PA 1-682-234    05/20/10    U.S.
Vanishing Violets Episode 103    PA 1-682-277    05/20/10    U.S.
Where, Oh Were Has Our Blueberry Gone? Episode 115    PA 1-682-235    05/20/10    U.S.
STRAWBERRY SHORTCAKE: A Fresh-n- Fruity Spring.    TX0007168628    04/22/10    U.S.
STRAWBERRY SHORTCAKE: Have a Sweet Easter!    TX0007169296    04/08/10    U.S.
Strawberry Shortcake Spring 05 Style Guide    VA 1-698-608    01/28/10    U.S.
Berry Sweet Friends    TX0007130606    12/22/09    U.S.
STRAWBERRY SHORTCAKE: Berry Sweet Friends.    TX0007130606    12/22/09    U.S.
STRAWBERRY SHORTCAKE: We Love You, Strawberry Shortcake! (All Aboard Reading: Station Stop 1) illustrated by Marci Beighly)    TX0007130612    12/22/09    U.S.
STRAWBERRY SHORTCAKE: Welcome to Berry Bitty City (Sticker Stories)    TX0007132153    12/22/09    U.S.
We Love You, Strawberry Shortcake! (All Aboard Reading: Station Stop 1 illustrated by Marci Beighly)    TX0007132153    12/22/09    U.S.
Welcome to Berry Bitty City    TX0007132153    12/22/09    U.S.
Berry Best Friends    TX0006941019    03/30/09    U.S.
Country Fair Fun    TX0007081446    08/22/08    U.S.
Happy Birthday, Strawberry Shortcake!    TX0007032338    06/26/08    U.S.
Easter Egg Hunt    TX0006928570    03/31/08    U.S.
Berry Pretty PrinceSSCes    VA0001653462    03/26/08    U.S.
Baby Strawberry Loves to Count    VA0001713500    02/28/08    U.S.
Baby Strawberry’s First Christmas    TX0006912410    11/29/07    U.S.
Let’s Go Apple Picking!    TX0006902857    11/13/07    U.S.
Baby Strawberry’s First Halloween    TX0006974325    11/07/07    U.S.
The Berry BloSSCom Festival    TX0007135860    11/07/07    U.S.
Halloween Hideout    TX0006886858    10/31/07    U.S.
Berry Fairy Tales: Rapunzel    TX0006858520    08/31/07    U.S.
Tropical Treasure Hunt    TX0006814623    08/02/07    U.S.
The Friendship Trip    TX0006861151    08/01/07    U.S.
Berry Fairy Tales: Snow White    TX0006602175    07/03/07    U.S.
My Berry First Friends    TX0006584619    06/05/07    U.S.
Baby Strawberry’s First Easter    TX0006576624    04/25/07    U.S.
Sweet Treats Carnival    TX0006558006    04/06/07    U.S.
Secrets and Surprises    TX0006557212    04/03/07    U.S.
Strawberry Shortcake: The little mermaid    TX0006487738    12/18/06    U.S.
The sweet dream movie story book    TX0006484895    11/29/06    U.S.
Baby Strawberry’s Rainbow Day    VA0001382159    10/06/06    U.S.
Bath time for Baby Strawberry    VA0001382158    10/06/06    U.S.
Dream Big! The Sweet Dreams Movie    TX0006484898    09/07/06    U.S.
Strawberry Shortcake: The Sweet Dreams Movie: Sticker Stories    TX0006466564    09/07/06    U.S.
The Sweet Dreams Movie Story Book    TX0006484895    09/07/06    U.S.
Sleeping Beauty    TX0006353531    05/08/06    U.S.
Strawberry Shortcakes World of Friends    TX 6-353-463    05/08/06    U.S.
Cinderella/by Megan E. Bryan; illustrated by Scott Neely    TX0006261737    12/16/05    U.S.
Strawberry shortcake face propped on hands logo    VA-1-300-078    07/18/05    U.S.
Strawberry Shortcake Manual    VA-1-300-079    07/18/05    U.S.
Berry best friends book : a fun with friends adventure / by Alison Saeger Panik. (Series: Strawberry Shortcake)    TX0006173963    04/05/05    U.S.

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

28


Title of Work

  

    Registration No.    

  

     Registration Date

  

      Country      

BERRY BEST GARDENING BOOK    TX5-946-382    04/05/04    U.S.
FIG BOOT    VA174-430    12/04/84    U.S.
BABY NEEDS-A-NAME DOLL    VA169-336    10/17/84    U.S.
MINT TULIP RAG DOLL    VA169-337    10/17/84    U.S.
BERRY BABY BLUEBERRY MUFFIN DOLL    VA161-164    07/30/84    U.S.
BERRY BABY LEMON MERINGUE DOLL    VA161-161    07/30/84    U.S.
BERRY BABY ORANGE BLOSSCOM DOLL    VA161-163    07/30/84    U.S.
BERRY BABY STRAWBERRY SHORTCAKE DOLL    VA161-162    07/30/84    U.S.
FIG BOOT’S HAPPY DAY    TX1-351-545    06/11/84    U.S.
STRAWBERRY SHORTCAKE AND BABY NEEDS A NAME    TX1-361-674    06/11/84    U.S.
STRAWBERRYLAND CHOO-CHOO THE    TX1-351-544    06/11/84    U.S.
SURPRISE FOR BABY BLUEBERRY MUFFIN A    TX1-351-543    06/11/84    U.S.
BABIES THE (SUPPLEMENT TO STRAWBERRY SHORTCAKE MANUAL)    TX1-250-022    12/22/83    U.S.
ALMOND TEA DOLL    VA126-828    05/31/83    U.S.
CAFE OLE DOLL    VA126-827    05/31/83    U.S.
CREPE SUZETTE DOLL    VA126-826    05/31/83    U.S.
MINT TULIP DOLL    VA126-829    05/31/83    U.S.
BABY ORANGE BLOSSCOM    VA126-416    05/27/83    U.S.
BABY ANGEL CAKE    VA132-926    05/02/83    U.S.
CHERRY CUDDLER RAG DOLL    VA123-321    04/11/83    U.S.
LIME CHIFFON RAG DOLL    VA123-320    04/11/83    U.S.
ANGEL CAKE    VA122-395    04/05/83    U.S.
BUTTER COOKIE DOLL    VA122-394    04/05/83    U.S.
CHERRY CUDDLER DOLL    VA122-396    04/05/83    U.S.
LIME CHIFFON DOLL    VA122-393    04/05/83    U.S.
PURPLE PIEMAN DOLL    VA122-069    03/30/83    U.S.
SOUR GRAPES DOLL    VA122-068    03/30/83    U.S.
STRAWBERRY SHORTCAKE SUCCESSC BOOK FOR 1983    TX1-084-420    03/30/83    U.S.
BABY APRICOT    VA117-027    01/27/83    U.S.
BABY LEMON MERINGUE    VA117-029    01/27/83    U.S.
BABY STRAWBERRY SHORTCAKE    VA117-028    01/27/83    U.S.
APPLE DUMPLIN’ RAG DOLL    VA115-634    12/06/82    U.S.
APRICOT RAG DOLL    VA115-631    12/06/82    U.S.
LEMON MERINGUE RAG DOLL    VA115-632    12/06/82    U.S.
ORANGE BLOSSCOM RAG DOLL    VA115-633    12/06/82    U.S.
APRICOT DOLL    VA120-816    11/22/82    U.S.
LEMON MERINGUE DOLL    VA120-815    11/22/82    U.S.
ORANGE BLOSSCOM DOLL    VA120-818    11/22/82    U.S.
RASPBERRY TART DOLL    VA120-817    11/22/82    U.S.
STRAWBERRY SHORTCAKE MANUAL    TX1-037-948    11/10/82    U.S.
STRAWBERRY SHORTCAKE MANUAL SUPPLEMENT    TX1-037-947    11/10/82    U.S.
STRAWBERRY SHORTCAKE AND KITTEN SITTING ON “HI”    VAU38-406    09/22/82    U.S.
STRAWBERRY SHORTCAKE CARRYING BASKET OF STRAWBERRIES AND KITTEN    VAU38-409    09/22/82    U.S.
STRAWBERRY SHORTCAKE HOLDING PATCHWORK FLOWER WITH KITTEN    VAU38-412    09/22/82    U.S.
STRAWBERRY SHORTCAKE HOLDING PATCHWORK FLOWER WITH KITTEN    VAU38-423    09/22/82    U.S.
STRAWBERRY SHORTCAKE HOLDING WATERING CAN WITH LARGE STRAWBERRY    VAU38-417    09/22/82    U.S.

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

29


Title of Work

  

    Registration No.    

  

     Registration Date

  

      Country      

STRAWBERRY SHORTCAKE IN STRAWBERRY PATCH BEHIND FENCE W/ KITTEN    VAU38-405    09/22/82    U.S.
STRAWBERRY SHORTCAKE MAKING STRAWBERRY JAM WITH KITTEN    VAU38-410    09/22/82    U.S.
STRAWBERRY SHORTCAKE SEATED EATING STRAWBERRY FROM BOWL WITH KITTEN    VAU38-413    09/22/82    U.S.
STRAWBERRY SHORTCAKE SEATED HOLDING SPOON AND BOWL OF STRAWBERRIES    VAU38-416    09/22/82    U.S.
STRAWBERRY SHORTCAKE SEATED UNDER STRAWBERRY PLANT HOLDING SPOON    VAU38-414    09/22/82    U.S.
STRAWBERRY SHORTCAKE SITTING AT TABLE W/ BOWL OF STRAWBERRIES    VAU38-408    09/22/82    U.S.
STRAWBERRY SHORTCAKE SITTING BY STRAWBERRY PLANT HOLDING LETTER    VAU38-407    09/22/82    U.S.
STRAWBERRY SHORTCAKE SITTING ON STRAWBERRY PLANT WITH KITTEN    VAU38-411    09/22/82    U.S.
STRAWBERRY SHORTCAKE UNDER STRAWBERRY PLANT W/ SICK MOUSE ON LEAF    VAU38-404    09/22/82    U.S.
STRAWBERRY SHORTCAKE WATERING STRAWBERRY PLANT WITH KITTEN    VAU38-418    09/22/82    U.S.
STRAWBERRY SHORTCAKE WATERING STRAWBERRY PLANT WITH KITTEN    VAU38-422    09/22/82    U.S.
STRAWBERRY SHORTCAKE WITH WATERING CAN AND LARGE STRAWBERRY PLANT    VAU38-419    09/22/82    U.S.
STRAWBERRY SHORTCAKE WITH WHEELBAR- ROW OF STRAWBERRIES AND KITTEN    VAU38-421    09/22/82    U.S.
STRAWBERRY SHORTCAKE WITH WHEELBARROW OF STRAWBERRIES AND KITTEN    VAU38-415    09/22/82    U.S.
STRAWBERRY SHORTCAKE WITH WHEELBARROW OF STRAWBERRIES AND KITTEN    VAU38-420    09/22/82    U.S.
RASPBERRY TART RAG DOLL    VA102-407    07/09/82    U.S.
STRAWBERRY SHORTCAKE RAG DOLL    VA102-406    07/09/82    U.S.
STRAWBERRY SHORTCAKE LINE PACKAGING PRODUCT NO. 43020    VA89-840    01/15/82    U.S.
APPLE DUMPLIN’ JEWELRY    VA88-785    12/31/81    U.S.
BLUEBERRY MUFFIN JEWELRY    VA88-784    12/31/81    U.S.
STRAWBERRY SHORTCAKE JEWELRY    VA88-786    12/31/81    U.S.
BLUE BERRY MUFFIN DOLL    VA86-164    11/18/81    U.S.
HUCKLEBERRY PIE DOLL    VA86-165    11/18/81    U.S.
APPLE DUMPLIN’ DOLL    VA73-838    07/02/81    U.S.
LIFE IS DELICIOUS WHEN IT’S A STRAWBERRY SHORTCAKE WORLD    TX714-081    07/02/81    U.S.
WELCOME TO STRAWBERRYLAND    VA74-988    06/26/81    U.S.
STRAWBERRY SHORTCAKE: THE FIRST $100 MILLION    TX709-889    06/08/81    U.S.
DARLING DAUGHTER 25B2437K    VA75-847    06/02/81    U.S.
STRAWBERRY SHORTCAKE DOLL    VA73-839    06/02/81    U.S.
LIFE IS DELICIOUS WHEN IT’S A STRAWBERRY SHORTCAKE WORLD    TX480-048    06/12/80    U.S.
APPLE DUMPLIN’ DOLL    336906    09/12/84    Canada
BLUEBERRY MUFFIN DOLL    336907    09/12/84    Canada
HUCKLEBERRY PIE DOLL    336905    09/12/84    Canada
STRAWBERRY SHORTCAKE DOLL    336904    09/12/84    Canada
STRAWBERRY SHORTCAKE RAGDOLL    319427    10/07/82    Canada
APPLE DUMPLIN’ DOLL    15-2-3    07/06/82    Venezuela
HUCKLEBERRY PIE DOLL    17-2-3    07/06/82    Venezuela
WELCOME TO THE WORLD OF STRAWBERRY SHORTCAKE PACKAGE    16-2-3    07/06/82    Venezuela
BLUEBERRY MUFFIN DOLL    47-4-3    06/08/82    Venezuela

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

30


Title of Work

  

    Registration No.    

  

     Registration Date

  

      Country      

STRAWBERRY SHORTCAKE: THE FIRST $100 MILLION    46-4-3    06/08/82    Venezuela
WELCOME TO STRAWBERRYLAND    48-4-3    06/08/82    Venezuela
WELCOME TO THE WORLD OF STRAWBERRY SHORTCAKE PACKAGE    50-4-3    06/08/82    Venezuela
BASIC PURPLE PIEMAN CHARACTER    316584    05/27/82    Canada
BASIC RASPBERRY TART CHARACTER    316583    05/27/82    Canada
DESIGN OF BLUEBERRY MUFFIN ON A TEETER-TOTTER    316537    05/21/82    Canada
BASIC APRICOT CHARACTER    316342    05/17/82    Canada
BASIC LEMON MERINGUE CHARACTER    316343    05/17/82    Canada
BASIC ORANGE BLOSSCOM CHARACTER    316344    05/17/82    Canada
DESIGN OF STRAWBERRY SHORTCAKE IN WINDOW    316332    05/14/82    Canada

STRAWBERRY SHORTCAKE GREETING

CARD DESIGN

   49-2-3    05/13/82    Venezuela
STRAWBERRY SHORTCAKE DOLL    45-2-3    05/13/82    Venezuela
STRAWBERRY SHORTCAKE RAG DOLL    50-2-3    05/13/82    Venezuela
LIFE IS DELICIOUS WHEN IT’S A STRAWBERRY SHORTCAKE WORLD    46-2-3    04/26/82    Venezuela
STRAWBERRY SHORTCAKE DOLL PACKAGE    44-2-3    04/26/82    Venezuela
APPLE DUMPLIN’ PACKAGE DESIGN - DOLL    315754    04/22/82    Canada
APRICOT PACKAGE DESIGN - DOLL    315758    04/22/82    Canada
BLUEBERRY MUFFIN PACKAGE DESIGN - DOLL    315753    04/22/82    Canada
HUCKLEBERRY PIE PACKAGE DESIGN - DOLL    315752    04/22/82    Canada
LEMON MERINGUE PACKAGE DESIGN - DOLL    315755    04/22/82    Canada
ORANGE BLOSSCOM PACKAGE DESIGN - DOLL    315757    04/22/82    Canada
RASPBERRY TART PACKAGE DESIGN - DOLL    315756    04/22/82    Canada

STRAWBERRY SHORTCAKE PACKAGE

DESIGN - DOLL

   315751    04/22/82    Canada
DARLING DAUGHTER    314431    02/22/82    Canada
BASIC APPLE DUMPLIN’ CHARACTER    314375    02/18/82    Canada
BASIC BLUEBERRY MUFFIN CHARACTER    314374    02/18/82    Canada
BASIC HUCKLEBERRY PIE CHARACTER    314373    02/18/82    Canada
BASIC STRAWBERRY SHORTCAKE CHARACTER - BACK    314378    02/18/82    Canada
STRAWBERRY SHORTCAKE ON STRAWBERRY LOGO    314379    02/18/82    Canada
APPLE DUMPLIN’    2741    11/05/81    Philippines
APRICOT ‘N’ HOPSALOT    2742    11/05/81    Philippines
BLUEBERRY MUFFIN    2743    11/05/81    Philippines
FLITTER BIT    2744    11/05/81    Philippines
GUACA-MOLE; HORSE RADISH; COCO NUTWORK    2745    11/05/81    Philippines
HUCKLEBERRY PIE    2746    11/05/81    Philippines
LEMON MERINGUE    2747    11/05/81    Philippines
LUCKY BUG    2748    11/05/81    Philippines
ORANGE BLOSSCOM    2749    11/05/81    Philippines
PLUM PUDDIN’    2750    11/05/81    Philippines
PURPLE PIEMAN    2751    11/05/81    Philippines
RASPBERRY TART    2752    11/05/81    Philippines
STRAWBERRY SHORTCAKE    2753    11/05/81    Philippines
T.N. HONEY    2754    11/05/81    Philippines
STRAWBERRY SHORTCAKE GREETING CARD POP-UP ‘AND UP POPS HAPPINESSC’    310518    08/11/81    Canada

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

31


Section 4.13(c)

Intellectual Property: Ownership and Use

[***]

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

32


Section 4.13(d)

Intellectual Property: Claims

None.

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

33


Section 4.13(f)

Intellectual Property: Orders

None.

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

34


Section 4.13(g)

Intellectual Property: Consummation of Purchase

Certain domain name registrations used in connection with the Business may be registered in the name of Seller, an Affiliate of Seller, or a third party and Seller shall assign, or cause to be assigned, such domain name registrations to the Company prior to Closing unless the Company may not contractually or lawfully take possession of such domain name registrations, in which case the Parties shall use commercially reasonable efforts to assign such domain name registrations to either Purchaser or an Affiliate of Purchaser in accordance with the Agreement.

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

35


Section 4.13(h)

Intellectual Property: Liens

[***]

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

36


Section 4.13(i)

Intellectual Property: Seller Software

None.

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

37


Section 4.15

Finders; Brokers

None.

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

38


Section 4.18

Accounts Receivable

[***]

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

39


Section 4.19

Transactions with Affiliates

[***]

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

40


Section 6.2(d)

Material Contracts; Negotiated Extensions or Renewals

License agreements currently under negotiation for renewal:

[***]

License agreements in pipeline for execution:

[***]

 

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

41


Section 7.1(c)

Conditions to the Obligations of Each Party: Consents

None.

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

42


ATTACHMENT I

Section 4.13(a)

Intellectual Property: Trademarks

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

U.S. Trademarks

 

  Country  

  

Mark

       Image       

Status

       Application #            File Date        Registration
#
     Registration  
Date
  

    Classes    

UNITED STATES    STRAWBERRY SHORTCAKE       REGISTERED    73178085    7/13/1978    1117262    5/1/1979    16
UNITED STATES    STRAWBERRY SHORTCAKE       REGISTERED    73393580    9/29/1982    1267116    2/14/1984    16
UNITED STATES    STRAWBERRY SHORTCAKE       REGISTERED    73791750    4/7/1989    1564827    11/7/1989    28
UNITED STATES    STRAWBERRY SHORTCAKE       REGISTERED    74062893    5/25/1990    1959123    2/27/1996    25
UNITED STATES    STRAWBERRY SHORTCAKE       REGISTERED    75574758    10/21/1998    2309010    1/18/2000    25
UNITED STATES    STRAWBERRY SHORTCAKE       REGISTERED    76209019    2/13/2001    2901936    11/9/2004    03

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

1


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

  Country  

  

Mark

       Image       

Status

       Application #            File Date        Registration
#
     Registration  
Date
  

    Classes    

UNITED STATES    STRAWBERRY SHORTCAKE       REGISTERED    78145685    7/19/2002    2887531    9/21/2004    20, 21, 24
UNITED STATES    STRAWBERRY SHORTCAKE       REGISTERED    78145689    7/19/2002    2925739    2/8/2005    09, 14, 18
UNITED STATES    STRAWBERRY SHORTCAKE       REGISTERED    78145691    7/19/2002    3171964    11/14/2006    25, 26
UNITED STATES    STRAWBERRY SHORTCAKE       REGISTERED    78145693    7/19/2002    2803695    1/6/2004    28
UNITED STATES    STRAWBERRY SHORTCAKE       REGISTERED    78145692    7/19/2002    2856798    6/22/2004    16
UNITED STATES    STRAWBERRY SHORTCAKE       REGISTERED    85151760    10/13/2010    4580350    8/5/2014    41
UNITED STATES    STRAWBERRY SHORTCAKE       REGISTERED    85976135    10/13/2010    4196032    8/21/2012    41

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

2


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

  Country  

  

Mark

       Image       

Status

       Application #            File Date        Registration
#
     Registration  
Date
  

    Classes    

UNITED STATES    STRAWBERRY SHORTCAKE       REGISTERED    86408929    9/29/2014    4847516    11/3/2015    05
UNITED STATES    BLUEBERRY MUFFIN       REGISTERED    73244574    12/31/1979    1201259    7/13/1982    28
UNITED STATES    PUPCAKE       REGISTERED    77754998    6/9/2009    3931764    3/15/2011    28
UNITED STATES    BERRYKIN       REGISTERED    77888891    12/8/2009    3926692    3/1/2011    28
UNITED STATES    CHERRY JAM       REGISTERED    85172806    11/9/2010    4176397    7/17/2012    28
UNITED STATES    RASPBERRY TART       ALLOWED    86442819    11/3/2014          28
UNITED STATES    PITTERPATCH       REGISTERED    85629061    5/18/2012    4898852    2/9/2016    28

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

3


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

  Country  

  

Mark

       Image       

Status

       Application #            File Date        Registration
#
     Registration  
Date
  

    Classes    

UNITED STATES    CHIFFON       REGISTERED    85629064    5/18/2012    4898853    2/9/2016    28
UNITED STATES    ORANGE BLOSSOM       REGISTERED    86027599    8/2/2013    4443977    12/3/2013    28
UNITED STATES    HUCKLEBERRY PIE       ALLOWED    86121860    11/18/2013          28
UNITED STATES    TEA TIME TURTLE       ALLOWED    86246759    4/9/2014          28
UNITED STATES    SOUR GRAPES       ALLOWED    86246766    4/9/2014          28
UNITED STATES    APPLE DUMPLIN       ALLOWED    86246772    4/9/2014          28
UNITED STATES    SWEET GRAPES       ALLOWED    86246776    4/9/2014          28

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

4


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

  Country  

  

Mark

       Image       

Status

       Application #            File Date        Registration
#
       Registration  
Date
  

    Classes    

UNITED STATES    RASPBERRY TORTE       ALLOWED    86442824    11/3/2014          28
UNITED STATES    PLUM PUDDING       REGISTERED    85150709    10/12/2010      4062315      11/29/2011    28
UNITED STATES    HENNA       REGISTERED    86545534    2/25/2015      4873187      12/22/2015    28
UNITED STATES    LEMON MERINGUE       REGISTERED    78398458    4/8/2004      3216265      3/6/2007    28
UNITED STATES    CINNAPUP       REGISTERED    85983428    5/18/2012      4724431      4/21/2015    28
UNITED STATES    SCOUTY       REGISTERED    85983429    5/18/2012      4724432      4/21/2015    28
UNITED STATES    MARMALADE       ALLOWED    86844277    12/9/2015          28

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

5


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

Foreign Trademarks

 

WHE Ref.   Country   Mark   Design   Status   Owner of
Record
  Class(es)   App. No.   App. Date   Reg. No.   Reg. Date   Renewal
SCAKE 011   Argentina   FRUTILANDIA     Registered   Shortcake IP Holdings LLC   41   3.530.575   04/12/2005   2.869.050   08/30/2006   08/30/2026
SCAKE 005   Argentina   FRUTILLITA     Registered   Shortcake IP Holdings LLC   9   2.408.919   01/27/2003   2.660.251   11/10/2003   11/10/2023
SCAKE 006   Argentina   FRUTILLITA     Registered   Shortcake IP Holdings LLC   14   2.408.920   01/27/2003   2.655.858   11/05/2003   11/05/2023
SCAKE 004   Argentina   FRUTILLITA     Registered   Shortcake IP Holdings LLC   16   2.569.487   09/16/1982   2.152.979   04/18/2007   4/18/2017
- renewal
in process
SCAKE 007   Argentina   FRUTILLITA     Registered   Shortcake IP Holdings LLC   28   2.408.921   01/27/2003   2.677.986   03/11/2004   03/11/2024

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

6


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

WHE Ref.   Country   Mark   Design   Status   Owner of
Record
  Class(es)   App. No.   App. Date   Reg. No.   Reg. Date   Renewal
SCAKE 014   Argentina   FRUTILLITA     Registered   Shortcake IP Holdings LLC   41   3.530.573   04/12/2005   2.869.049   08/30/2006   08/30/2026
SCAKE   Argentina   STRAWBERRY SHORTCAKE     Registered   Shortcake IP Holdings LLC   18   2.640.207   12/19/2005   2.148.464   03/21/2007   3/21/2017
- renewal
in process
SCAKE 012   Argentina   STRAWBERRY SHORTCAKE     Registered   Shortcake IP Holdings LLC   24   3.047.275   11/18/2010   2.479.111   12/02/2011   12/02/2021
SCAKE 013   Argentina   STRAWBERRY SHORTCAKE     Registered   Shortcake IP Holdings LLC   25   3.194.029   09/26/2012   2.619.802   01/06/2014   01/06/2024
SCAKE 008   Argentina   STRAWBERRY SHORTCAKE     Registered   Shortcake IP Holdings LLC   28   2.508.625   04/21/2004   2.199.664   11/28/2007   11/28/2017
SCAKE 009   Argentina   STRAWBERRY SHORTCAKE with Circle Design 2   LOGO   Registered     28   2.754.807   06/28/2007   2.249.553   09/16/2008   09/16/2018

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

7


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

WHE Ref.   Country   Mark   Design   Status   Owner of
Record
  Class(es)   App. No.   App. Date   Reg. No.   Reg. Date   Renewal
SCAKE 010   Argentina   STRAWBERRY SHORTCAKE with Circle Strawberry Design   LOGO   Registered   Shortcake IP Holdings LLC   28   2.754.808   06/28/2007   2.249.554   09/16/2008   09/16/2018
SCAKE 016   Australia   LEMON MERINGUE     Registered   Shortcake IP Holdings LLC   28   363176   07/22/1981   363176   07/22/2012   07/22/2022
SCAKE 017   Australia   ORANGE BLOSSOM     Registered   Shortcake IP Holdings LLC   28   363194   07/22/1981   363194   07/22/2012   07/22/2022
SCAKE 018   Australia   PURPLE PIEMAN     Registered   Shortcake IP Holdings LLC   28   363200   07/22/1981   363200   07/22/2012   07/22/2022
SCAKE 023   Australia   RASPBERRY TART     Registered   Shortcake IP Holdings LLC   28   363170   07/22/1981   363170   07/22/2012   07/22/2022
SCAKE 022   Australia   STRAWBERRY SHORTCAKE     Registered   Shortcake IP Holdings LLC   16   329,105   02/21/1979   329,105   02/21/2010   02/21/2020

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

8


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

WHE Ref.   Country   Mark   Design   Status   Owner of
Record
  Class(es)   App. No.   App. Date   Reg. No.   Reg. Date   Renewal
SCAKE 021   Australia   STRAWBERRY SHORTCAKE     Registered   Shortcake IP Holdings LLC   28   329,106   02/21/1979   329,106   02/21/2010   02/21/2020
SCAKE 026   Australia   STRAWBERRY SHORTCAKE     Registered   Shortcake IP Holdings LLC   41   1,385,380   09/24/2010   1,385,380   05/18/2011   09/24/2020
SCAKE 025   Australia   STRAWBERRY SHORTCAKE     Registered   Shortcake IP Holdings LLC   20, 21   960,545   07/04/2003   960,545   07/04/2013   07/04/2023
SCAKE 024   Australia   STRAWBERRY SHORTCAKE     Registered   Shortcake IP Holdings LLC   9, 24, 25   936,579   12/04/2002   936,579   10/31/2003   12/04/2022

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

9


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

WHE Ref.   Country   Mark   Design   Status   Owner of
Record
  Class(es)   App. No.   App. Date   Reg. No.   Reg. Date   Renewal
SCAKE 020   Australia   STRAWBERRY SHORTCAKE LOGO (WELCOME)   LOGO   Registered   Shortcake IP Holdings LLC   16   345,960   05/09/1980   345,960   05/09/2011   05/09/2021
SCAKE 019   Australia   STRAWBERRY SHORTCAKE LOGO (WELCOME)   LOGO   Registered   Shortcake IP Holdings LLC   28   345,961   05/09/1980   345,961   05/09/2011   05/09/2021
SCAKE 028   Austria   EMILY ERDBEER     Registered   Shortcake IP Holdings LLC   9, 28, 41   7464/2008   11/14/2008   250043   03/18/2009   03/31/2019
SCAKE 027   Austria   STRAWBERRY SHORTCAKE     Registered   Shortcake IP Holdings LLC   16, 28   AM428/79   02/13/1979   90907   04/18/1979   04/30/2019
SCAKE 029   Belize   ROSITA FRESITA     Registered   Shortcake IP Holdings LLC   28   8199.11   10/05/2011   8199.11   02/06/2012   10/05/2021

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

10


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

WHE Ref.   Country   Mark   Design   Status   Owner of
Record
  Class(es)   App. No.   App. Date   Reg. No.   Reg. Date   Renewal
SCAKE 041   Benelux   ANNA AARDBEI     Registered   Shortcake IP Holdings LLC   9, 28, 41   1188402   09/16/2009   0869131   09/16/2009   09/16/2019
SCAKE 032   Benelux   BABA ORANGE     Registered   Shortcake IP Holdings LLC   28   643085   05/27/1981   0374688   05/27/1981   05/27/2021
SCAKE 035   Benelux   CHARLOTTE AARDBEI     Registered   Shortcake IP Holdings LLC   16, 28   651972   08/13/1982   0383992   08/13/1982   08/13/2022

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

11


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

WHE Ref.   Country   Mark   Design   Status   Owner of
Record
  Class(es)   App. No.   App. Date   Reg. No.   Reg. Date   Renewal
SCAKE 036   Benelux   CHARLOTTE AUX FRAISES     Registered   Shortcake IP Holdings LLC   14, 16, 24, 25, 28   635593   03/18/1980   0365068   03/18/1980   03/18/2020
SCAKE 040   Benelux   CHARLOTTE AUX FRAISES     Registered   Shortcake IP Holdings LLC   9, 18, 20   1045156   12/02/2003   0742868   12/02/2003   12/02/2023
SCAKE 031   Benelux   LEMON MERINGUE     Registered   Shortcake IP Holdings LLC   28   643076   05/27/1981   0374679   05/27/1981   05/27/2021
SCAKE 038   Benelux   MERINGUE CITRON     Registered   Shortcake IP Holdings LLC   28   643084   05/27/1981   0374687   05/27/1981   05/27/2021
SCAKE 034   Benelux   MOUSSE FRAMBOISE     Registered   Shortcake IP Holdings LLC   28   643083   07/08/1981   0374686   07/08/1981   07/08/2021

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

12


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

WHE Ref.   Country   Mark   Design   Status   Owner of
Record
  Class(es)   App. No.   App. Date   Reg. No.   Reg. Date   Renewal
SCAKE 037   Benelux   ORANGE BLOSSOM     Registered   Shortcake IP Holdings LLC   28   643079   05/27/1981   0374682   05/27/1981   05/27/2021
SCAKE 030   Benelux   RASPBERRY TART     Registered   Shortcake IP Holdings LLC   28   643075   05/27/1981   0374678   05/27/1981   05/27/2021
SCAKE 039   Benelux   STRAWBERRY SHORTCAKE     Registered   Shortcake IP Holdings LLC   14, 24, 25   635597   03/18/1980   0365071   03/18/1980   03/18/2020
SCAKE 033   Benelux   STRAWBERRY SHORTCAKE     Registered   Shortcake IP Holdings LLC   16, 28   628670   02/12/1979   0356901   02/12/1979   02/12/2019
SCAKE 042   Bolivia   FRUTILLITA     Registered   Shortcake IP Holdings LLC   9   SM-0751-03   03/12/2003   92556-A   07/01/2004   07/01/2024
SCAKE 043   Bolivia   FRUTILLITA     Registered   Shortcake IP Holdings LLC   16   SM-0750-03   03/12/2003   94581-C   06/11/2004   06/11/2024

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

13


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

WHE Ref.   Country   Mark   Design   Status   Owner of
Record
  Class(es)   App. No.   App. Date   Reg. No.   Reg. Date   Renewal
SCAKE 044   Bolivia   FRUTILLITA     Registered   Shortcake IP Holdings LLC   24   SM-0752-03   03/12/2003   94584-C   06/11/2004   06/11/2024
SCAKE 045   Bolivia   FRUTILLITA     Registered   Shortcake IP Holdings LLC   25   SM-0749-03   03/12/2003   94583-C   06/11/2004   06/11/2024
SCAKE 046   Bolivia   FRUTILLITA     Registered   Shortcake IP Holdings LLC   28   SM-0753-03   03/12/2003   94603-C   06/14/2004   06/14/2024
SCAKE 050   Bolivia   ROSITA FRESITA     Registered   Shortcake IP Holdings LLC   16   03369-2011   02/15/2012   133570-C   02/15/2012   02/15/2022
SCAKE 047   Bolivia   ROSITA FRESITA     Registered   Shortcake IP Holdings LLC   28   SM-4035-03   12/15/2003   105228-C   08/31/2006   08/31/2026
SCAKE 049   Bolivia   STRAWBERRY SHORTCAKE with Circle Strawberry Design   LOGO   Registered   Shortcake IP Holdings LLC   28   2709-07   07/04/2007   128366-C   07/06/2001   07/06/2021

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

14


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

WHE Ref.   Country   Mark   Design   Status   Owner of
Record
  Class(es)   App. No.   App. Date   Reg. No.   Reg. Date   Renewal
SCAKE 048   Bolivia   STRAWBERRY SHORTCAKE with Design 2   LOGO   Registered   Shortcake IP Holdings LLC   28   2708-07   07/04/2007   128364-C   07/06/2011   07/06/2021
SCAKE 069   Brazil   BOLINHO     Registered   Those Characters From Cleveland, Inc. - assignment filed   28   826277292   02/27/2004   826277292   09/11/2007   09/11/2017
SCAKE 066   Brazil   ESPULETA     Registered   Those Characters From Cleveland, Inc. - assignment filed   28   826277314   02/27/2004   826277314   09/11/2007   09/11/2017
SCAKE 064   Brazil   LARANJINHA     Registered   Those Characters From Cleveland, Inc. - assignment filed   28   826277322   02/27/2004   826277322   09/11/2007   09/11/2017
SCAKE 073   Brazil   MACAZINHA     Registered   Those Characters From Cleveland, Inc. - assignment filed   28   827872909   10/21/2005   827872909   02/12/2008   02/12/2018
SCAKE 065   Brazil   MELZINHO     Filed   Those Characters From Cleveland, Inc. - assignment filed   28   826277330   02/27/2004      

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

15


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

WHE Ref.   Country   Mark   Design   Status   Owner of
Record
  Class(es)   App. No.   App. Date   Reg. No.   Reg. Date   Renewal
SCAKE 075   Brazil   MORANGUINHO     Filed   Those Characters From Cleveland, Inc. - assignment filed   3   907617239   04/28/2014      
SCAKE 076   Brazil   MORANGUINHO     Filed   Those Characters From Cleveland, Inc. - assignment filed   5   908360762   09/29/2014      
SCAKE 077   Brazil   MORANGUINHO     Filed   Those Characters From Cleveland, Inc. - assignment filed   12   908935080   01/30/2015      
SCAKE 058   Brazil   MORANGUINHO     Registered   Those Characters From Cleveland, Inc. - assignment filed   14   825270014   02/11/2003   825270014   05/08/2007   5/8/2017 -
renewal in
process
SCAKE 057   Brazil   MORANGUINHO     Registered   Those Characters From Cleveland, Inc. - assignment filed   16   811132595   04/07/1983   811132595   06/05/1984   06/05/2024
SCAKE 051   Brazil   MORANGUINHO     Registered   Those Characters From Cleveland, Inc. - assignment filed   16   813675235   07/20/1987   813675235   03/28/1989   03/28/2019

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

16


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

WHE Ref.   Country   Mark   Design   Status   Owner of
Record
  Class(es)   App. No.   App. Date   Reg. No.   Reg. Date   Renewal
SCAKE 059   Brazil   MORANGUINHO     Registered   Those Characters From Cleveland, Inc. - assignment filed   18   825269997   02/11/2003   825269997   05/08/2007   5/8/2017 -
renewal in
process
SCAKE 081   Brazil   MORANGUINHO     Registered   Those Characters From Cleveland, Inc. - assignment filed   20   830906460   01/18/2011   830906460   06/24/2014   06/24/2024
SCAKE 060   Brazil   MORANGUINHO     Registered   Those Characters From Cleveland, Inc. - assignment filed   21   825270006   02/11/2003   825270006   05/08/2007   5/8/2017 -
renewal in
process
SCAKE 055   Brazil   MORANGUINHO     Registered   Those Characters From Cleveland, Inc. - assignment filed   24   811132617   04/07/1983   811132617   06/05/1984   06/05/2024
SCAKE 078   Brazil   MORANGUINHO     Registered   Those Characters From Cleveland, Inc. - assignment filed   27   902024108   10/09/2009   902024108   12/24/2013   12/24/2023
SCAKE 056   Brazil   MORANGUINHO     Registered   Those Characters From Cleveland, Inc. - assignment filed   28   810697530   11/27/1981   810697530   08/16/1983   08/16/2023

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

17


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

WHE Ref.   Country   Mark   Design   Status   Owner of
Record
  Class(es)   App. No.   App. Date   Reg. No.   Reg. Date   Renewal
SCAKE 080   Brazil   MORANGUINHO (Stylized)   LOGO   Filed   Those Characters From Cleveland, Inc. - assignment filed   41   830841466   11/17/2010      
SCAKE 072   Brazil   MORANGUINHO with Design   LOGO   Registered   Those Characters From Cleveland, Inc. - assignment filed   3   827051735   11/04/2004   827051735   10/23/2007   10/23/2017
SCAKE 061   Brazil   MORANGUINHO with design   LOGO   Registered   Those Characters From Cleveland, Inc. - assignment filed   9   825764939   08/20/2003   825764939   04/01/2008   04/01/2018
SCAKE 070   Brazil   PAO-DE-MEL     Filed   Those Characters From Cleveland, Inc. - assignment filed   28   826277268   02/27/2004      
SCAKE 071   Brazil   PIMENTINHA     Registered   Those Characters From Cleveland, Inc. - assignment filed   28   826277357   02/27/2004   826277357   09/11/2007   09/11/2017
SCAKE 067   Brazil   PUDIM     Registered   Those Characters From Cleveland, Inc. - assignment filed   28   826277284   02/27/2004   826277284   09/11/2007   09/11/2017

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

18


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

WHE Ref.   Country   Mark   Design   Status   Owner of
Record
  Class(es)   App. No.   App. Date   Reg. No.   Reg. Date   Renewal
SCAKE 068   Brazil   ROCAMBOLE     Registered   Those Characters From Cleveland, Inc. - assignment filed   28   826277306   02/27/2004   826277306   09/11/2007   09/11/2017
SCAKE 062   Brazil   STRAWBERRY SHORTCAKE     Registered   Those Characters From Cleveland, Inc. - assignment filed   9   825945690   10/06/2003   825945690   07/31/2007   07/31/2017
SCAKE 052   Brazil   STRAWBERRY SHORTCAKE     Registered   Those Characters From Cleveland, Inc. - assignment filed   16   8080/79   03/29/1979   007179529   02/25/1980   02/25/2020
SCAKE 074   Brazil   STRAWBERRY SHORTCAKE     Registered   Those Characters From Cleveland, Inc. - assignment filed   18   829475141   11/12/2007   829475141   12/15/2009   12/15/2019
SCAKE 063   Brazil   STRAWBERRY SHORTCAKE     Registered   Those Characters From Cleveland, Inc. - assignment filed   25   825945704   10/06/2003   825945704   07/31/2007   07/31/2017
SCAKE 053   Brazil   STRAWBERRY SHORTCAKE     Registered   Those Characters From Cleveland, Inc. - assignment filed   28   8083/79   03/29/1979   007179537   04/10/1980   04/10/2020

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

19


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

WHE Ref.   Country   Mark   Design   Status   Owner of
Record
  Class(es)   App. No.   App. Date   Reg. No.   Reg. Date   Renewal
SCAKE 079   Brazil   STRAWBERRY SHORTCAKE     Registered   Those Characters From Cleveland, Inc. - assignment filed   41   830841440   11/17/2010   830841440   05/27/2014   05/27/2024
SCAKE 082   Brazil   STRAWBERRY SHORTCAKE DANCE POSE Logo  

LOGO

 

  Registered   Those Characters From Cleveland, Inc. - assignment filed   18   831246219   10/21/2011   831246219   12/16/2014   12/16/2024
SCAKE 083   Brazil   STRAWBERRY SHORTCAKE DANCE POSE Logo  

LOGO

 

  Registered   Those Characters From Cleveland, Inc. - assignment filed   28   831246197   10/21/2011   831246197   12/16/2014   12/16/2024
SCAKE 054   Brazil   STRAWBERRY SHORTCAKE LOGO WITH MORANGUINHO   LOGO   Registered   Those Characters From Cleveland, Inc. - assignment filed   30   813679672   07/23/1987   813679672   03/14/1989   03/14/2019

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

20


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

WHE Ref.   Country   Mark   Design   Status   Owner of
Record
  Class(es)   App. No.   App. Date   Reg. No.   Reg. Date   Renewal
SCAKE 105   Canada   AMANDELLE     Registered   Shortcake IP Holdings LLC   N/A   496,574   12/21/1982   299,653   02/01/1985   02/01/2030
SCAKE 116   Canada   APPLE DUMPLIN’     Registered   Shortcake IP Holdings LLC   N/A   1,150,420   08/21/2002   608,724   04/27/2004   04/27/2019
SCAKE 100   Canada   BLEUETTE     Registered   Shortcake IP Holdings LLC   N/A   510572   10/12/1983   302112   04/19/1985   04/19/2030
SCAKE 101   Canada   BLUEBERRY MUFFIN     Registered   Shortcake IP Holdings LLC   N/A   493372   10/13/1982   306748   09/06/1985   09/06/2030
SCAKE 126   Canada   BUTTER PECAN     Registered   Shortcake IP Holdings LLC   N/A   1,288,603   02/03/2006   682,333   02/26/2007   02/26/2022
SCAKE 121   Canada   CARAMELO     Registered   Shortcake IP Holdings LLC   N/A   1,172,775   03/28/2003   663,592   05/03/2006   05/03/2021

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

21


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

WHE Ref.   Country   Mark   Design   Status   Owner of
Record
  Class(es)   App. No.   App. Date   Reg. No.   Reg. Date   Renewal
SCAKE 118   Canada   CHAUSSON     Registered   Shortcake IP Holdings LLC   N/A   1,172,778   03/28/2003   663,593   05/03/2006   05/03/2021
SCAKE 137   Canada   CHERRY JAM     Registered   Shortcake IP Holdings LLC   N/A   1,506,097   12/01/2010   866,994   12/10/2013   12/10/2028
SCAKE 127   Canada   CHERRY VANILLA     Registered   Shortcake IP Holdings LLC   N/A   1,288,602   02/03/2006   692,166   07/17/2007   07/17/2022
SCAKE 115   Canada   CHOCOLATE CHIPMUNK     Registered   Shortcake IP Holdings LLC   N/A   1,150,419   08/21/2002   601,567   02/06/2004   02/06/2019
SCAKE 123   Canada   CHOU A LA CREME     Registered   Shortcake IP Holdings LLC   N/A   1,172,773   03/28/2003   622,330   10/12/2004   10/12/2019
SCAKE 097   Canada   CITRONETTE     Registered   Shortcake IP Holdings LLC   N/A   472785   07/17/1981   302041   04/19/1985   04/19/2030

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

22


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

WHE Ref.   Country   Mark   Design   Status   Owner of
Record
  Class(es)   App. No.   App. Date   Reg. No.   Reg. Date   Renewal
SCAKE 130   Canada   COOKIE DOUGH     Registered   Shortcake IP Holdings LLC   N/A   1,288,599   02/03/2006   687,691   05/14/2007   05/14/2022
SCAKE 132   Canada   CREPES SUZETTE     Registered   Shortcake IP Holdings LLC   N/A   1,311,341   08/01/2006   692,588   07/23/2007   07/23/2022
SCAKE 102   Canada   CUSTARD     Registered   Shortcake IP Holdings LLC   N/A   493373   10/13/1982   302094   04/19/1985   04/19/2030
SCAKE 090   Canada   FLANFOLLET     Registered   Shortcake IP Holdings LLC   N/A   510574   10/12/1983   302060   04/19/1985   04/19/2030
SCAKE 092   Canada   FRAISINETTE     Registered   Shortcake IP Holdings LLC   N/A   479953   01/14/1982   320652   11/14/1986   11/14/2031
SCAKE 125   Canada   FRAISINETTE     Registered   Shortcake IP Holdings LLC   N/A   1269553   08/23/2005   705,439   01/23/2008   01/23/2023

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

23


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

WHE Ref.   Country   Mark   Design   Status   Owner of
Record
  Class(es)   App. No.   App. Date   Reg. No.   Reg. Date   Renewal
SCAKE 091   Canada   FRAISINETTE     Registered   Shortcake IP Holdings LLC   N/A   451852   03/28/1980   313650   04/25/1986   04/25/2031
SCAKE 131   Canada   FROSTY PUFF     Registered   Shortcake IP Holdings LLC   N/A   1,311,340   08/01/2006   692,587   07/23/2007   07/23/2022
SCAKE 114   Canada   GINGER SNAP     Registered   Shortcake IP Holdings LLC   N/A   1,150,418   08/21/2002   608,984   04/29/2004   04/29/2019
SCAKE 094   Canada   GRIGNOTINE     Registered   Shortcake IP Holdings LLC   N/A   510571   10/12/1983   302059   04/19/1985   04/19/2030
SCAKE 113   Canada   HONEY PIE PONY     Registered   Shortcake IP Holdings LLC   N/A   1,150,417   08/21/2002   648,451   09/19/2005   09/19/2020
SCAKE 112   Canada   HUCKLEBERRY PIE     Registered   Shortcake IP Holdings LLC   N/A   1,150,416   08/21/2002   648,430   09/19/2005   09/19/2020

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

24


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

WHE Ref.   Country   Mark   Design   Status   Owner of
Record
  Class(es)   App. No.   App. Date   Reg. No.   Reg. Date   Renewal
SCAKE 111   Canada   LEMON MERINGUE     Registered   Shortcake IP Holdings LLC   N/A   1,150,415   08/21/2002   671,939   09/01/2006   09/01/2021
SCAKE 117   Canada   MADELEINE     Registered   Shortcake IP Holdings LLC   N/A   1,172,779   03/28/2003   622,710   10/18/2004   10/18/2019
SCAKE 120   Canada   MAM’ZELLE GALETTE     Registered   Shortcake IP Holdings LLC   N/A   1,172,776   03/28/2003   621,978   10/06/2004   10/06/2019
SCAKE 122   Canada   MANDARINE     Registered   Shortcake IP Holdings LLC   N/A   1,172,774   03/28/2003   622,169   10/07/2004   10/07/2019
SCAKE 110   Canada   MARMALADE     Registered   Shortcake IP Holdings LLC   N/A   1,150,414   08/21/2002   621,989   10/06/2004   10/06/2019
SCAKE 129   Canada   MILKSHAKE     Registered   Shortcake IP Holdings LLC   N/A   1,288,600   02/03/2006   682,334   02/26/2007   02/26/2022

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

25


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

WHE Ref.   Country   Mark   Design   Status   Owner of
Record
  Class(es)   App. No.   App. Date   Reg. No.   Reg. Date   Renewal
SCAKE 108   Canada   ORANGE BLOSSOM     Registered   Shortcake IP Holdings LLC   N/A   472793   07/17/1981   307932   11/01/1985   11/01/2030
SCAKE 128   Canada   ORANGE TWIST     Registered   Shortcake IP Holdings LLC   N/A   1,288,601   02/03/2006   690,538   06/21/2007   06/21/2022
SCAKE 119   Canada   PEPITE     Registered   Shortcake IP Holdings LLC   N/A   1,172,777   03/28/2003   622,216   10/07/2004   10/07/2019
SCAKE 084   Canada   PETIT BEIGNET     Registered   Shortcake IP Holdings LLC   N/A   510570   10/12/1983   302058   04/19/1985   04/19/2030
SCAKE 088   Canada   PUPCAKE     Registered   Shortcake IP Holdings LLC   N/A   493374   10/13/1982   302048   04/19/1985   04/19/2030
SCAKE 124   Canada   RAINBOW SHERBET     Registered   Shortcake IP Holdings LLC   N/A   1,198,720   12/05/2003   678,873   01/04/2007   01/04/2022

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

26


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

WHE Ref.   Country   Mark   Design   Status   Owner of
Record
  Class(es)   App. No.   App. Date   Reg. No.   Reg. Date   Renewal
SCAKE 095   Canada   RASPBERRY TART     Registered   Shortcake IP Holdings LLC   N/A   472797   07/17/1981   301855   04/12/1985   04/12/2030
SCAKE 133   Canada   RASPBERRY TORTE     Registered   Shortcake IP Holdings LLC   N/A   1,311,346   08/01/2006   692,589   07/23/2007   07/23/2022
SCAKE 089   Canada   STRAWBERRY SHORTCAKE     Registered   Shortcake IP Holdings LLC   N/A   435,636   02/12/1979   275,798   01/14/1983   01/14/2028
SCAKE 093   Canada   STRAWBERRY SHORTCAKE     Registered   Shortcake IP Holdings LLC   N/A   479952   01/14/1982   320146   10/31/1986   10/31/2031
SCAKE 103   Canada   STRAWBERRY SHORTCAKE LOGO (Canadian French)   LOGO   Registered   Shortcake IP Holdings LLC   N/A   479955   01/14/1982   319894   10/24/1986   10/24/2031
SCAKE 135   Canada   SWEET GRAPES     Filed   Shortcake IP Holdings LLC   N/A   1,696,796   10/06/2014      

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

27


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

WHE Ref.   Country   Mark   Design   Status   Owner of
Record
  Class(es)   App. No.   App. Date   Reg. No.   Reg. Date   Renewal
SCAKE 136   Canada   TEA TIME TURTLE     Filed   Shortcake IP Holdings LLC   N/A   1,696,797   10/06/2014      
SCAKE 109   Canada   VANILLA ICING     Registered   Shortcake IP Holdings LLC   N/A   1,150,411   08/21/2002   602,183   02/13/2004   02/13/2019
SCAKE 147   Chile   FRUTILLITA     Registered   Shortcake IP Holdings LLC   3   937079   01/14/2011   933585   10/03/2011   10/03/2021
SCAKE 139   Chile   FRUTILLITA     Registered   Shortcake IP Holdings LLC   16   1052709   04/04/2013   1030079   05/15/2013   05/15/2023
SCAKE 140   Chile   FRUTILLITA     Registered   Shortcake IP Holdings LLC   9, 14, 18, 21, 28   1052708   04/04/2013   1030077   06/13/2013   06/13/2023
SCAKE 142   Chile   FRUTILLITA with design   LOGO   Registered   Shortcake IP Holdings LLC   24   1098753   03/14/2014   1093856   03/19/2014   03/19/2024

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

28


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

WHE Ref.   Country   Mark   Design   Status   Owner of
Record
  Class(es)   App. No.   App. Date   Reg. No.   Reg. Date   Renewal
SCAKE 145   Chile   FRUTILLITA with Design  

LOGO

 

  Registered   Shortcake IP Holdings LLC   25   825841   06/23/2008   859112   09/01/2009   09/01/2019
SCAKE 141   Chile   FRUTILLITA with design  

LOGO

 

  Registered   Shortcake IP Holdings LLC   25   1098754   03/14/2014   1093858   03/19/2014   03/19/2024
SCAKE 138   Chile   STRAWBERRY SHORTCAKE  

 

LOGO

 

  Registered   Shortcake IP Holdings LLC   16, 28   1111994   06/20/2014   1120783   08/12/2014   08/12/2024
SCAKE 144   Chile   STRAWBERRY SHORTCAKE with Circle Strawberry Design     Registered   Shortcake IP Holdings LLC   28   778973   06/27/2007   822114   07/18/2008   07/18/2018
SCAKE 143   Chile   STRAWBERRY SHORTCAKE with Design 2  

LOGO

 

  Registered   Shortcake IP Holdings LLC   28   778972   06/27/2007   822113   07/18/2008   07/18/2018
SCAKE 146   Chile   STRAWBERRY SHORTCAKE with vine border Design   LOGO   Registered   Shortcake IP Holdings LLC   3   1102020   04/08/2014   1160516   03/26/2015   03/26/2025

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

29


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

WHE Ref.   Country   Mark   Design   Status   Owner of
Record
  Class(es)   App. No.   App. Date   Reg. No.   Reg. Date   Renewal
SCAKE 157   China
P.R.
  Cao Mei Tian Xin in Chinese characters (“STRAWBERRY SHORTCAKE”)   LOGO   Registered   Shortcake IP Holdings LLC   9   6124110   06/22/2007   6124110   02/21/2010   02/20/2020
SCAKE 168   China
P.R.
  Cao Mei Tian Xin in Chinese characters (“STRAWBERRY SHORTCAKE”)   LOGO   Registered   Shortcake IP Holdings LLC   14   12715083   06/06/2013   12715083   10/21/2014   10/20/2024
SCAKE 158   China
P.R.
  Cao Mei Tian Xin in Chinese characters (“STRAWBERRY SHORTCAKE”)   LOGO   Registered   Shortcake IP Holdings LLC   16   6124109   06/22/2007   6124109   02/07/2010   02/06/2020
SCAKE 159   China
P.R.
  Cao Mei Tian Xin in Chinese characters (“STRAWBERRY SHORTCAKE”)   LOGO   Registered   Shortcake IP Holdings LLC   18   6124128   06/22/2007   6124128   09/28/2013   09/27/2023
SCAKE 169   China
P.R.
  Cao Mei Tian Xin in Chinese characters (“STRAWBERRY SHORTCAKE”)   LOGO   Registered   Shortcake IP Holdings LLC   21   12715082   06/06/2013   12715082   10/21/2014   10/20/2024

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

30


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

WHE Ref.   Country   Mark   Design   Status   Owner of
Record
  Class(es)   App. No.   App. Date   Reg. No.   Reg. Date   Renewal
SCAKE 160   China
P.R.
  Cao Mei Tian Xin in Chinese characters (“STRAWBERRY SHORTCAKE”)   LOGO   Registered   Shortcake IP Holdings LLC   24   6124127   06/22/2007   6124127   03/28/2010   03/27/2020
SCAKE 161   China
P.R.
  Cao Mei Tian Xin in Chinese characters (“STRAWBERRY SHORTCAKE”)   LOGO   Registered   Shortcake IP Holdings LLC   25   6124126   06/22/2007   6124126   08/14/2014   08/13/2024
SCAKE 170   China
P.R.
  Cao Mei Tian Xin in Chinese characters (“STRAWBERRY SHORTCAKE”)   LOGO   Registered   Shortcake IP Holdings LLC   25   12715081   06/06/2013   12715081   10/21/2014   10/20/2024
SCAKE 162   China
P.R.
  Cao Mei Tian Xin in Chinese characters (“STRAWBERRY SHORTCAKE”)   LOGO   Registered   Shortcake IP Holdings LLC   28   6124125   06/22/2007   6124125   03/28/2010   03/27/2020
SCAKE 171   China
P.R.
  Cao Mei Tian Xin in Chinese Characters (“STRAWBERRY SHORTCAKE”)   LOGO   Registered   Shortcake IP Holdings LLC   41   12715080   06/06/2013   12715080   10/21/2014   10/20/2024
SCAKE 167   China
P.R.
  STRAWBERRY SHORTCAKE     Registered   Shortcake IP Holdings LLC   14   6907510   08/19/2008   6907510   05/14/2010   05/13/2020

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

31


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

WHE Ref.   Country   Mark   Design   Status   Owner of
Record
  Class(es)   App. No.   App. Date   Reg. No.   Reg. Date   Renewal
SCAKE 148   China
P.R.
  STRAWBERRY SHORTCAKE     Registered   Shortcake IP Holdings LLC   16   4307615   10/13/2004   4307615   12/07/2007   12/06/2017
SCAKE 149   China
P.R.
  STRAWBERRY SHORTCAKE     Registered   Shortcake IP Holdings LLC   24   4307614   10/13/2004   4307614   08/21/2008   08/20/2018
SCAKE 150   China
P.R.
  STRAWBERRY SHORTCAKE  

LOGO

 

  Registered   Shortcake IP Holdings LLC   28   4307603   10/13/2004   4307603   08/21/2008   08/20/2018
SCAKE 163   China
P.R.
  STRAWBERRY SHORTCAKE and Chinese letters  

LOGO

 

  Registered   Shortcake IP Holdings LLC   25   13982118   01/26/2014   13982118   10/21/2016   10/20/2026
SCAKE 166   China
P.R.
  Strawberry Shortcake Design 3 without words  

LOGO

 

  Registered   Shortcake IP Holdings LLC   20   12715084   06/06/2013   12715084   10/21/2014   10/20/2024
SCAKE 193   China
P.R.
  Strawberry Shortcake Design 3 without words  

LOGO

 

  Registered   Shortcake IP Holdings LLC   30   8829080   11/29/2010   8829080   11/28/2011   11/27/2021

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

32


WHE Ref.   Country   Mark   Design   Status   Owner of
Record
  Class(es)   App. No.   App. Date   Reg. No.   Reg. Date   Renewal
SCAKE 183   China
P.R.
  Strawberry Shortcake Design3 without words  

LOGO

 

  Registered   Shortcake IP Holdings LLC   3   8183854   04/07/2010   8183854   04/07/2011   04/06/2021
SCAKE 184   China
P.R.
  Strawberry Shortcake Design3 without words  

LOGO

 

  Registered   Shortcake IP Holdings LLC   9   8183853   04/07/2010   8183853   04/07/2011   04/06/2021
SCAKE 185   China
P.R.
  Strawberry Shortcake Design3 without words  

LOGO

 

  Registered   Shortcake IP Holdings LLC   14   8183852   04/07/2010   8183852   04/14/2011   04/13/2021
SCAKE 186   China
P.R.
  Strawberry Shortcake Design3 without words  

LOGO

 

  Registered   Shortcake IP Holdings LLC   16   8183851   04/07/2010   8183851   04/14/2011   04/13/2021
SCAKE 187   China
P.R.
  Strawberry Shortcake Design3 without words   LOGO   Registered   Shortcake IP Holdings LLC   18   8183850   04/07/2010   8183850   04/07/2011   04/06/2021

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

33


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

WHE Ref.   Country   Mark   Design   Status   Owner of
Record
  Class(es)   App. No.   App. Date   Reg. No.   Reg. Date   Renewal
SCAKE 188   China
P.R.
  Strawberry Shortcake Design3 without words  

LOGO

 

  Registered   Shortcake IP Holdings LLC   21   8183849   04/07/2010   8183849   04/14/2011   04/13/2021
SCAKE 189   China
P.R.
  Strawberry Shortcake Design3 without words  

LOGO

 

  Registered   Shortcake IP Holdings LLC   24   8183848   04/07/2010   8183848   04/07/2011   04/06/2021
SCAKE 190   China
P.R.
  Strawberry Shortcake Design3 without words  

LOGO

 

  Registered   Shortcake IP Holdings LLC   25   8183847   04/07/2010   8183847   04/07/2011   04/06/2021
SCAKE 191   China
P.R.
  Strawberry Shortcake Design3 without words  

LOGO

 

  Registered   Shortcake IP Holdings LLC   28   8183846   04/07/2010   8183846   04/07/2011   04/06/2021
SCAKE 192   China
P.R.
  Strawberry Shortcake Design3 without words   LOGO   Registered   Shortcake IP Holdings LLC   41   8183845   04/07/2010   8183845   04/07/2011   04/06/2021

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

34


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

WHE Ref.   Country   Mark   Design   Status   Owner of
Record
  Class(es)   App. No.   App. Date   Reg. No.   Reg. Date   Renewal
SCAKE 151   China
P.R.
  STRAWBERRY SHORTCAKE with Design 2  

LOGO

 

  Registered   Shortcake IP Holdings LLC   9   6090838   06/05/2007   6090838   02/14/2010   02/13/2020
SCAKE 152   China
P.R.
  STRAWBERRY SHORTCAKE with Design 2  

LOGO

 

  Registered   Shortcake IP Holdings LLC   16   6090837   06/05/2007   6090837   01/21/2010   01/20/2020
SCAKE 153   China
P.R.
  STRAWBERRY SHORTCAKE with Design 2  

LOGO

 

  Registered   Shortcake IP Holdings LLC   18   6090836   06/05/2007   6090836   02/14/2014   02/13/2024
SCAKE 154   China
P.R.
  STRAWBERRY SHORTCAKE with Design 2  

LOGO

 

  Registered   Shortcake IP Holdings LLC   24   6090835   06/05/2007   6090835   03/28/2010   03/27/2020
SCAKE 155   China
P.R.
  STRAWBERRY SHORTCAKE with Design 2  

LOGO

 

  Registered   Shortcake IP Holdings LLC   25   6090834   06/05/2007   6090834   07/14/2014   07/13/2024

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

35


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

WHE Ref.   Country   Mark   Design   Status   Owner of
Record
  Class(es)   App. No.   App. Date   Reg. No.   Reg. Date   Renewal
SCAKE 164   China
P.R.
  STRAWBERRY SHORTCAKE with Design 2  

LOGO

 

LOGO

  Registered   Shortcake IP Holdings LLC   25   13781671   12/23/2013   13781671   02/21/2016   02/20/2026
SCAKE 156   China
P.R.
  STRAWBERRY SHORTCAKE with Design 2     Registered   Shortcake IP Holdings LLC   28   6090833   06/05/2007   6090833   03/28/2010   03/27/2020
SCAKE 172   China
P.R.
  STRAWBERRY SHORTCAKE with Design 2 (no words just Design)     Registered   Shortcake IP Holdings LLC   30   8130404   03/18/2010   8130404   12/28/2011   12/27/2021
SCAKE 173   China
P.R.
  STRAWBERRY SHORTCAKE with Design 3  

 

LOGO

 

LOGO

  Registered   Shortcake IP Holdings LLC   3   8183834   04/07/2010   8183834   04/07/2011   04/06/2021
SCAKE 174   China
P.R.
  STRAWBERRY SHORTCAKE with Design 3   LOGO   Registered   Shortcake IP Holdings LLC   9   8183833   04/07/2010   8183833   04/07/2011   04/06/2021

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

36


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

WHE Ref.   Country   Mark   Design   Status   Owner of
Record
  Class(es)   App. No.   App. Date   Reg. No.   Reg. Date   Renewal
SCAKE 175   China
P.R.
  STRAWBERRY SHORTCAKE with Design 3  

LOGO

 

  Registered   Shortcake IP Holdings LLC   14   8183832   04/07/2010   8183832   04/07/2011   04/06/2021
SCAKE 176   China
P.R.
  STRAWBERRY SHORTCAKE with Design 3  

LOGO

 

  Registered   Shortcake IP Holdings LLC   16   8183831   04/07/2010   8183831   04/07/2011   04/06/2021
SCAKE 177   China
P.R.
  STRAWBERRY SHORTCAKE with Design 3  

LOGO

 

  Registered   Shortcake IP Holdings LLC   18   8183830   04/07/2010   8183830   08/07/2013   08/06/2023
SCAKE 178   China
P.R.
  STRAWBERRY SHORTCAKE with Design 3  

LOGO

 

  Registered   Shortcake IP Holdings LLC   21   8183829   04/07/2010   8183829   08/07/2013   08/06/2023
SCAKE 179   China
P.R.
  STRAWBERRY SHORTCAKE with Design 3  

LOGO

 

  Registered   Shortcake IP Holdings LLC   24   8183828   04/07/2010   8183828   04/07/2011   04/06/2021
SCAKE 180   China
P.R.
  STRAWBERRY SHORTCAKE with Design 3  

LOGO

 

  Registered   Shortcake IP Holdings LLC   25   8183827   04/07/2010   8183827   03/07/2014   03/06/2024

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

37


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

WHE Ref.   Country   Mark   Design   Status   Owner of
Record
  Class(es)   App. No.   App. Date   Reg. No.   Reg. Date   Renewal
SCAKE 181   China
P.R.
  STRAWBERRY SHORTCAKE with Design 3  

LOGO

 

  Registered   Shortcake IP Holdings LLC   28   8183826   04/07/2010   8183826   04/07/2011   04/06/2021
SCAKE 182   China
P.R.
  STRAWBERRY SHORTCAKE with Design 3   LOGO   Registered   Shortcake IP Holdings LLC   41   8183825   04/07/2010   8183825   04/07/2011   04/06/2021
SCAKE 165   China
P.R.
  STRAWBERRY-SHORTCAKE     Registered   Shortcake IP Holdings LLC   25   4856500   08/25/2005   4856500   05/21/2009   05/20/2019
SCAKE 194   Colombia   FRESITA     Registered   Shortcake IP Holdings LLC   9   3008192   02/04/2003   272314   08/28/2003   08/28/2023
SCAKE 195   Colombia   FRESITA     Registered   Shortcake IP Holdings LLC   14   3008191   02/04/2003   272315   08/28/2003   08/28/2023
SCAKE 196   Colombia   FRESITA     Registered   Shortcake IP Holdings LLC   16   3008185   02/04/2003   272323   08/28/2003   08/28/2023

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

38


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

WHE Ref.   Country   Mark   Design   Status   Owner of
Record
  Class(es)   App. No.   App. Date   Reg. No.   Reg. Date   Renewal
SCAKE 197   Colombia   FRESITA     Registered   Shortcake IP Holdings LLC   18   3008190   02/04/2003   272316   08/28/2003   08/28/2023
SCAKE 198   Colombia   FRESITA     Registered   Shortcake IP Holdings LLC   21   3008189   02/04/2003   272325   08/28/2003   08/28/2023
SCAKE 205   Colombia   FRESITA     Registered   Shortcake IP Holdings LLC   25   08-119795   11/10/2008   378631   05/14/2009   05/14/2019
SCAKE 199   Colombia   FRESITA     Registered   Shortcake IP Holdings LLC   28   3008187   02/04/2003   272324   08/28/2003   08/28/2023
SCAKE 209   Colombia   ROSITA FRESITA     Registered   Shortcake IP Holdings LLC   16   11-080720   06/28/2011   448306   04/30/2012   04/30/2022
SCAKE 202   Colombia   ROSITA FRESITA     Registered   Shortcake IP Holdings LLC   28   3109412   12/15/2003   283624   07/21/2004   07/21/2024

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

39


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

WHE Ref.   Country   Mark   Design   Status   Owner of
Record
  Class(es)   App. No.   App. Date   Reg. No.   Reg. Date   Renewal
SCAKE 206   Colombia   STRAWBERRY SHORTCAKE     Registered   Shortcake IP Holdings LLC   9   08-129874   12/05/2008   380866   06/24/2009   06/24/2019
SCAKE 200   Colombia   STRAWBERRY SHORTCAKE     Registered   Shortcake IP Holdings LLC   24   391334   10/14/2003   281626   05/27/2004   05/27/2024
SCAKE 201   Colombia   STRAWBERRY SHORTCAKE     Registered   Shortcake IP Holdings LLC   25   3091335   10/14/2003   281627   05/27/2004   05/27/2024
SCAKE 207   Colombia   STRAWBERRY SHORTCAKE     Registered   Shortcake IP Holdings LLC   28   08-129876   12/05/2008   380867   06/24/2009   06/24/2019
SCAKE 208   Colombia   STRAWBERRY SHORTCAKE     Registered   Shortcake IP Holdings LLC   41   08-129879   12/05/2008   380869   06/24/2009   06/24/2019
SCAKE 204   Colombia   STRAWBERRY SHORTCAKE with Circle Strawberry Design   LOGO   Registered   Shortcake IP Holdings LLC   28   07-065323   06/27/2007   345040   01/30/2008   01/30/2018

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

40


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

WHE Ref.   Country   Mark   Design   Status   Owner of
Record
  Class(es)   App. No.   App. Date   Reg. No.   Reg. Date   Renewal
SCAKE 203   Colombia   STRAWBERRY SHORTCAKE with Design 2   LOGO   Registered   Shortcake IP Holdings LLC   28   07-065322   06/27/2007   345039   01/30/2008   01/30/2018
SCAKE 210   Costa
Rica
  ROSITA FRESITA     Registered   Shortcake IP Holdings LLC   9   2003-
0004607
  07/18/2003   143547   01/19/2004   01/19/2024
SCAKE 211   Costa
Rica
  ROSITA FRESITA     Registered   Shortcake IP Holdings LLC   16   2003-
0004608
  07/18/2003   144873   02/26/2004   02/26/2024
SCAKE 212   Costa
Rica
  ROSITA FRESITA     Registered   Shortcake IP Holdings LLC   24   2003-
0004609
  07/18/2003   143546   01/19/2004   01/19/2024
SCAKE 213   Costa
Rica
  ROSITA FRESITA     Registered   Shortcake IP Holdings LLC   25   2003-
0004611
  07/18/2003   143544   01/19/2004   01/19/2024
SCAKE 214   Costa
Rica
  ROSITA FRESITA     Registered   Shortcake IP Holdings LLC   28   2003-
004610
  07/18/2003   143545   01/19/2004   01/19/2024

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

41


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

WHE Ref.   Country   Mark   Design   Status   Owner of
Record
  Class(es)   App. No.   App. Date   Reg. No.   Reg. Date   Renewal
SCAKE 215   Costa
Rica
  STRAWBERRY SHORTCAKE     Registered   Shortcake IP Holdings LLC   16, 28   2007-
0000915
  02/01/2007   172720   01/25/2008   01/25/2018
SCAKE 218   Costa
Rica
  STRAWBERRY SHORTCAKE     Registered   Shortcake IP Holdings LLC   9, 41   2009-
0009616
  11/04/2009   199218   03/01/2010   03/01/2020
SCAKE 217   Costa
Rica
  STRAWBERRY SHORTCAKE with Circle Strawberry Design  

LOGO

 

  Registered   Shortcake IP Holdings LLC   28   2007-
0016105
  12/20/2007   176608   06/18/2008   06/18/2018
SCAKE 216   Costa
Rica
  STRAWBERRY SHORTCAKE with Design 2   LOGO   Registered   Shortcake IP Holdings LLC   28   2007-
0016110
  12/20/2007   176531   06/17/2008   06/17/2018

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

42


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

WHE Ref.   Country   Mark   Design   Status   Owner of
Record
  Class(es)   App. No.   App. Date   Reg. No.   Reg. Date   Renewal
SCAKE 220   Croatia   JAGODICA BOBICA  

LOGO

 

  Registered   Shortcake IP Holdings LLC   9, 28, 41   Z20082615   12/11/2008   Z20082615   12/04/2009   12/11/2018
SCAKE 219   Croatia   STRAWBERRY SHORTCAKE with Design   LOGO   Registered   Shortcake IP Holdings LLC   18, 25, 28   Z20062352   12/12/2006   Z20062352   04/30/2008   12/12/2026
SCAKE 221   Czech
Republic
  JAHUDKA     Registered   Shortcake IP Holdings LLC   9, 28, 41   464445   12/11/2008   305201   04/29/2009   12/11/2018

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

43


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

WHE Ref.   Country   Mark   Design   Status   Owner of
Record
  Class(es)   App. No.   App. Date   Reg. No.   Reg. Date   Renewal
SCAKE 223   Denmark   JORDBAER MARIE     Registered   Shortcake IP Holdings LLC   9, 16, 28   VA200503808   09/14/2005   VR200603406   11/08/2006   11/08/2026
SCAKE 222   Denmark   STRAWBERRY SHORTCAKE     Registered   Shortcake IP Holdings LLC   16, 28   VA006351979   02/13/1979   VR030401979   10/19/1979   10/19/2019
SCAKE 224   Dominican
Republic
  ROSITA FRESITA     Registered   Shortcake IP Holdings LLC   16   2004-34641   04/29/2004   142723   07/30/2004   07/30/2024
SCAKE 225   Dominican
Republic
  ROSITA FRESITA     Registered   Shortcake IP Holdings LLC   25   2004-34642   04/29/2004   142724   07/30/2004   07/30/2024
SCAKE 226   Dominican
Republic
  ROSITA FRESITA     Registered   Shortcake IP Holdings LLC   28   2004-34643   04/29/2004   142722   07/30/2004   07/30/2024

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

44


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

WHE Ref.   Country   Mark   Design   Status   Owner of
Record
  Class(es)   App. No.   App. Date   Reg. No.   Reg. Date   Renewal
SCAKE 231   Ecuador   FRESITA     Registered   Shortcake IP Holdings LLC   24   2014-
55611
  02/25/2014   8601   10/13/2014   09/11/2024
SCAKE 235   Ecuador   FRUTILLITA     Registered   Those Characters From Cleveland, Inc.   28   223468   12/28/2009   3119-10   05/26/2010   05/26/2020
SCAKE 227   Ecuador   ROSITA FRESITA     Registered   Shortcake IP Holdings LLC   25   139943   12/11/2003   29769   04/15/2004   04/15/2024
SCAKE 228   Ecuador   ROSITA FRESITA     Registered   Those Characters From Cleveland, Inc.   28   139944   12/11/2003   200   04/15/2004   04/15/2024
SCAKE 232   Ecuador   STRAWBERRY SHORTCAKE     Registered   Those Characters From Cleveland, Inc.   9   208300   12/10/2008   3473-09   05/04/2009   05/04/2019
SCAKE 233   Ecuador   STRAWBERRY SHORTCAKE     Registered   Those Characters From Cleveland, Inc.   28   208301   12/10/2008   3474-09   05/04/2009   05/04/2019

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

45


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

WHE Ref.   Country   Mark   Design   Status   Owner of
Record
  Class(es)   App. No.   App. Date   Reg. No.   Reg. Date   Renewal
SCAKE 234   Ecuador   STRAWBERRY SHORTCAKE     Registered   Those Characters From Cleveland, Inc.   41   208302   12/10/2008   1546-09   05/04/2009   05/04/2019
SCAKE 230   Ecuador   STRAWBERRY SHORTCAKE with Circle Strawberry Design  

LOGO

 

  Registered   Shortcake IP Holdings LLC   28   186264   07/09/2007   308-08   12/10/2007   12/10/2017
SCAKE 229   Ecuador   STRAWBERRY SHORTCAKE with Design 2   LOGO   Registered   Shortcake IP Holdings LLC   28   186263   07/09/2007   309-08   12/10/2007   12/10/2017
SCAKE 237   El
Salvador
  ROSITA FRESITA     Registered   Shortcake IP Holdings LLC   9   20030040421   07/31/2003   65
Book
17
  07/27/2004   07/27/2024
SCAKE 238   El
Salvador
  ROSITA FRESITA     Registered   Shortcake IP Holdings LLC   16   20030040423   07/31/2003   66
Book
17
  07/27/2004   07/27/2024
SCAKE 239   El
Salvador
  ROSITA FRESITA     Registered   Shortcake IP Holdings LLC   24   20030040422   07/31/2003   4 Book
17
  07/20/2004   07/20/2024

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

46


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

WHE Ref.   Country   Mark   Design   Status   Owner of
Record
  Class(es)   App. No.   App. Date   Reg. No.   Reg. Date   Renewal
SCAKE 240   El
Salvador
  ROSITA FRESITA     Registered   Shortcake IP Holdings LLC   25   20030040420   07/31/2003   26
Book
17
  07/21/2004   07/21/2024
SCAKE 241   El
Salvador
  ROSITA FRESITA     Registered   Shortcake IP Holdings LLC   28   20030040419   07/31/2003   25
Book
17
  07/21/2004   07/21/2024
SCAKE 244   El
Salvador
  STRAWBERRY SHORTCAKE     Registered   Shortcake IP Holdings LLC   9   20090129477   11/09/2009   8
Book
152
  06/09/2010   06/09/2020
SCAKE 245   El
Salvador
  STRAWBERRY SHORTCAKE     Registered   Shortcake IP Holdings LLC   41   20090129476   11/09/2009   126
Book
150
  05/17/2010   05/17/2020
SCAKE 236   El
Salvador
  STRAWBERRY SHORTCAKE LOGO WITH FRESITA   LOGO   Registered   Shortcake IP Holdings LLC   16   154   01/31/1985   96
Book
133
  01/07/1992   01/07/2022
SCAKE 243   El
Salvador
  STRAWBERRY SHORTCAKE with Circle Strawberry   LOGO   Registered   Shortcake IP Holdings LLC   28   20070095145   06/27/2007   184
Book
95
  11/15/2007   11/15/2017

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

47


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

WHE Ref.   Country   Mark   Design   Status   Owner of
Record
  Class(es)   App. No.   App. Date   Reg. No.   Reg. Date   Renewal
SCAKE 242   El
Salvador
  STRAWBERRY SHORTCAKE with Design 2   LOGO   Registered   Shortcake IP Holdings LLC   28   20070095144   06/27/2007   54 Book
119
  12/03/2008   12/03/2018
SCAKE 251   European
Union
  BLUEBERRY MUFFIN     Registered   Shortcake IP Holdings LLC   16, 18, 28   8167355   03/19/2009   8167355   11/22/2009   03/31/2019
SCAKE 250   European
Union
  SSC DESIGN (Registered Design)   LOGO   Registered   Shortcake IP Holdings LLC     000973029-
0001
  07/18/2008   973029-
0001
  07/18/2008   07/31/2018
SCAKE 248   European
Union
  STRAWBERRY SHORTCAKE     Registered   Shortcake IP Holdings LLC   12, 18, 41   4794483   12/20/2005   4794483   06/05/2006   12/31/2025
SCAKE 247   European
Union
  STRAWBERRY SHORTCAKE     Registered   Shortcake IP Holdings LLC   3, 21, 30   3446523   10/24/2003   3446523   04/22/2005   10/31/2023
SCAKE 246   European
Union
  STRAWBERRY SHORTCAKE     Registered   Shortcake IP Holdings LLC   9, 14, 16, 18, 24, 25, 28   2956142   12/03/2002   2956142   10/29/2004   12/31/2022

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

48


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

WHE Ref.   Country   Mark   Design   Status   Owner of
Record
  Class(es)   App. No.   App. Date   Reg. No.   Reg. Date   Renewal
SCAKE 246   European
Union
  STRAWBERRY SHORTCAKE with Design 2   LOGO   Registered   Shortcake IP Holdings LLC   9, 16, 18, 21, 24, 25, 28   6040653   06/26/2007   6040653   02/18/2008   6/30/2017 -
scheduled
for renewal
SCAKE 252   Finland   MANSIKKA-MARJA     Registered   Shortcake IP Holdings LLC   16, 21, 28   T200502377   09/15/2005   236542   08/31/2006   08/31/2026
SCAKE 253   Finland   MANSIKKA-MARJA     Registered   Shortcake IP Holdings LLC   9, 25, 41   T200902819   10/19/2009   248373   02/26/2010   02/26/2020
SCAKE 269   France   BABA HORTENSIA     Registered   Shortcake IP Holdings LLC   28   103703039   01/07/2010   103703039   06/11/2010   01/31/2020
SCAKE 256   France   BABA ORANGE     Registered   Shortcake IP Holdings LLC   28   598,320   05/30/2011   1667500   07/22/2011   05/31/2021
SCAKE 255   France   CHARLOTTE AUX FRAISES     Registered   Shortcake IP Holdings LLC   14, 16, 24, 25, 28   549067   02/08/1990   1577042   04/02/2010   02/29/2020

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

49


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

WHE Ref.   Country   Mark   Design   Status   Owner of
Record
  Class(es)   App. No.   App. Date   Reg. No.   Reg. Date   Renewal
SCAKE 264   France   CHARLOTTE AUX FRAISES     Registered   Shortcake IP Holdings LLC   38, 41   93625011   01/26/2009   93625011   01/26/2009   01/31/2019
SCAKE 263   France   CHARLOTTE AUX FRAISES     Registered   Shortcake IP Holdings LLC   9, 18, 20   33255309   11/05/2003   33255309   11/05/2003   11/30/2023
SCAKE 270   France   CLAFOUTIS     Registered   Shortcake IP Holdings LLC   28   103703234   01/08/2010   103703234   06/11/2010   01/31/2020
SCAKE 268   France   FLEUR D’ ORANGER     Registered   Shortcake IP Holdings LLC   28   103703037   01/07/2010   103703037   06/11/2010   01/31/2020
SCAKE 260   France   LEMON MERINGUE     Registered   Shortcake IP Holdings LLC   28   598,325   05/30/2011   1667501   07/22/2011   05/31/2021
SCAKE 266   France   LILIE FRAMBOISE     Registered   Shortcake IP Holdings LLC   28   103703030   01/07/2010   103703030   06/11/2010   01/31/2020

 

*** Confidential treatment has been requested for redacted portions of this exhibit. This copy omits the information subject to the confidentiality request. Omissions are designated as [***]. A complete version of this exhibit has been provided separately to the Securities and Exchange Commission.

 

50


SELLERS DISCLOSURE LETTER - SECTION 4.13(a)

 

WHE Ref.   Country   Mark   Design   Status   Owner of
Record
  Class(es)   App. No.