Pledge Agreement - PEI Holdings Inc. and Bank One NA
PLEDGE AGREEMENT
This PLEDGE AGREEMENT (this "Agreement") is dated as of March 11,
2003 and is between PEI Holdings, Inc., a Delaware corporation ("Company"), and
Bank One, N.A., as Trustee ("Trustee") under the Indenture (as defined below).
W I T N E S S E T H
WHEREAS, Company and Trustee have entered into an Indenture of even
date herewith (as the same may be amended, modified or supplemented from time to
time, the "Indenture") among Company, the Guarantors party thereto, and Trustee,
governing the terms of certain Senior Secured Notes ("Notes") issued by Company;
WHEREAS, it is required under the Indenture that Company shall have
granted the pledge and security interests contemplated by this Agreement, and
Company desires to grant such pledge and security interests in order to
facilitate the issuance of the Notes;
NOW, THEREFORE, in consideration of the premises set forth herein
and for other good and valuable consideration, receipt and sufficiency of which
are hereby acknowledged, Company hereby agrees with Trustee, for the benefit of
Trustee and Holders as follows:
1. Reference to Indenture. Terms defined in the Indenture and not
otherwise defined herein shall have the respective meanings provided for in the
Indenture. In addition, "Permitted Liens" means those Liens permitted by Section
4.08 of the Indenture.
2. Pledge. To secure the payment and performance of the "Secured
Obligations" (as defined in Section 3 below), Company hereby pledges and
hypothecates to Trustee, for the benefit of Trustee and Holders, and grants to
Trustee, for the benefit of Trustee and Holders, a security interest in, the
following (the "Pledged Collateral"):
(a) the shares of stock of the corporations (the "Issuers")
identified on Schedule I hereto held by Company (the "Pledged Shares") and the
certificates representing the Pledged Shares, and all stock dividends, cash
dividends, cash, instruments, chattel paper and other rights, property or
proceeds and products from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the Pledged Shares;
(b) all additional shares of stock of Issuers at any time acquired
by Company in any manner, and the certificates representing such additional
shares (and any such additional shares shall constitute part of the Pledged
Shares under this Agreement), and all stock dividends, cash dividends, cash,
instruments, chattel paper and other rights, property or proceeds and products
from time to time received, receivable or otherwise distributed in respect of or
in exchange for any or all of such shares; and
(c) all proceeds of any of the foregoing.
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3. Secured Obligations. This Agreement secures the payment and
performance of Company's obligations under the Notes and the Indenture and the
obligations of Company under each Security Document including, without
limitation, this Agreement (all such debts, obligations and liabilities of
Company being collectively called the "Secured Obligations").
4. Delivery of Pledged Collateral. All certificates representing or
evidencing the Pledged Collateral shall, to the extent not delivered to and held
by Bank of America, N.A., as Agent ("Administrative Agent") under the Credit
Agreement in accordance with the Collateral Documents (as defined in the Credit
Agreement) ("BA Security Documents"), be delivered to and held by or on behalf
of Trustee, and shall be in suitable form for transfer by delivery, or shall be
accompanied by duly executed undated instruments of transfer or assignment in
blank, all in form and substance reasonably satisfactory to Trustee. Trustee
shall have the right, at any time in its discretion and without notice to
Company if an Event of Default has occurred and is continuing to transfer to or
to register in the name of Trustee or any of its nominees any or all of the
Pledged Collateral. In addition, in connection with the exercise of the remedies
pursuant to Section 12 below following the occurrence and during the continuance
of an Event of Default, Trustee shall have the right to exchange certificates or
instruments representing or evidencing Pledged Collateral for certificates or
instruments of smaller or larger denominations.
5. Representations and Warranties. Company represents and warrants
as follows:
(a) Schedule I hereto completely and accurately sets forth the
number of shares of the issued and outstanding stock of Issuers held by Company
as of the date hereof. The Pledged Shares held by Company constitute the
percentage of the issued and outstanding shares of stock of Issuers set forth on
Schedule I hereto as of the date hereof.
(b) Subject to filing UCC financing statements with the Secretary of
State in Company's jurisdiction of organization, Trustee has a valid and
perfected second priority security interest in the Pledged Collateral, free of
any adverse claim, securing the payment of the Secured Obligations subject to
Permitted Liens.
(c) No consent of any other Person and no consent, authorization,
approval or other action by, and no notice to or filing with, any Governmental
Authority (as defined in the Credit Agreement) is required either (i) for the
pledge by Company of the Pledged Collateral pursuant to this Agreement or for
the execution, delivery or performance of this Agreement by Company or (ii) for
the exercise by Trustee of the voting or other rights provided for in this
Agreement or the remedies in respect of the Pledged Collateral pursuant to this
Agreement (except (i) as has already been obtained or taken, (ii) as may be
required in connection with any disposition of the Pledged Collateral by laws
affecting the offering and sale of securities generally, (iii) as to which the
failure of which to obtain would not be reasonably likely to have a Material
Adverse Effect (as defined in the Security Agreement dated as of the date hereof
between Company and Trustee) and (iv) as set forth in the Intercreditor
Agreement).
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(d) None of the Pledged Shares constitutes margin stock, as defined
in Regulation U of the Board of Governors of the Federal Reserve System.
6. Further Assurances.
(a) Company will, from time to time, at Company's expense, and upon
Trustee's reasonable request, promptly execute and deliver all further
instruments and documents and take all further action that may be reasonably
necessary, in order to perfect and protect any security interest granted or
purported to be granted hereby, to enable Trustee to exercise and enforce the
rights and remedies of Trustee hereunder with respect to any Pledged Collateral
or to carry out the provisions and purposes hereof. Without limiting the
generality of the foregoing, Company will: (i) upon Trustee's reasonable
request, appear in and defend any action or proceeding that may affect Company's
title to or Trustee's security interest in the Pledged Collateral; and (ii)
promptly after the purchase or other acquisition thereof, deliver to Trustee, to
the extent not delivered to and held by the Administrative Agent pursuant to the
BA Security Documents, all Pledged Shares hereunder.
(b) Company will, promptly upon request, provide to Trustee all
information and evidence it may reasonably request concerning the Pledged
Collateral to enable Trustee to enforce the provisions of this Agreement.
(c) Company will, promptly upon the purchase or acquisition of any
additional shares of stock of Issuers, deliver to Trustee, to the extent not
delivered to and held by the Administrative Agent pursuant to the BA Security
Documents, such Pledged Shares as required by Section 4 above, together with the
other documents required under Section 4 above.
7. Voting Rights; Dividends; Etc.
(a) So long as no Event of Default shall have occurred and is
continuing and Trustee shall not have delivered to Company notice of its
election to exercise the rights set forth in subsection (b) below:
(i) Company shall be entitled to exercise any and all voting and
other consensual rights pertaining to the Pledged Collateral or any part
thereof; provided, however, that Company shall not exercise or shall
refrain from exercising any such right if, in Trustee's reasonable
judgment, such action or inaction would have a material adverse effect on
the value of the Pledged Collateral taken as a whole or any material part
thereof.
(ii) To the extent permitted under the Indenture, Company shall be
entitled to receive (A) any cash dividends and other cash distributions
paid or payable with respect to any of the Pledged Collateral, and (B) any
and all instruments, chattel paper and other rights, property or proceeds
and products (other than cash or checks) received, receivable or otherwise
distributed in respect of any Pledged Collateral.
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(b) If an Event of Default has occurred and is continuing:
(i) All rights of Company to exercise the voting and other
consensual rights which Company would otherwise be entitled to exercise
pursuant to subsection 7(a)(i), shall cease to be effective upon notice by
Trustee to Company of Trustee's intent to exercise its rights hereunder,
and upon delivery of such notice become vested in Trustee who shall
thereupon have the sole right to exercise such voting and other consensual
rights, subject to the rights of the Administrative Agent under the BA
Security Documents and the Intercreditor Agreement. In order to effect the
foregoing, Company hereby grants Trustee an irrevocable proxy to vote the
Pledged Collateral and Company agrees to execute such other proxies as
Trustee shall reasonably require.
(ii) All rights of Company to receive and retain any cash dividends
and other distributions shall cease upon notice by Trustee to Company and
any such dividends or other distributions paid or payable with respect to
any of the Pledged Collateral, subject to the rights of the Administrative
Agent under the BA Security Documents and the Intercreditor Agreement,
shall be paid to Trustee and held by Trustee to secure the Secured
Obligations until the earlier of (a) such time as such Event of Default is
cured or waived and (b) such time as the Trustee elects to apply such
dividends and other distributions to the Secured Obligations (any such
application to be in such order and manner set forth in Section 6.10 of
the Indenture). All dividends and distributions which are received by
Company contrary to the provisions of this subsection 7(b) shall be
received in trust for the benefit of Trustee, shall be segregated from
other funds of Company and shall be forthwith paid over to Trustee as
Pledged Collateral in the same form as so received (with any necessary
endorsement) to the extent not paid to the Administrative Agent pursuant
to the BA Security Documents and the Intercreditor Agreement.
8. Transfers and Other Liens; Additional Shares.
(a) Except as permitted under the Indenture and the Security
Documents, Company agrees that Company will not (i) encumber, sell, assign (by
operation of law or otherwise) or otherwise dispose of, or grant any option with
respect to, any of the Pledged Collateral or (ii) enter into any other
contractual obligations (including without limitation any voting or shareholders
agreement) which could reasonably be expected to restrict or inhibit Trustee's
rights or ability to vote or sell or otherwise dispose of the Pledged Collateral
or any part thereof after the occurrence of an Event of Default.
(b) Company agrees that it will not cause Issuers to issue any stock
or other securities (including any warrants, options, subscriptions or other
contractual obligations for the purchase of stock or securities convertible into
stock) in addition to or in substitution for the Pledged Shares.
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9. Attorney-in-Fact. Company hereby irrevocably appoints Trustee as
Company's attorney-in-fact effective during the continuance of an Event of
Default, with full authority in the place and stead of Company and in the name
of Company, Trustee or Holders or otherwise, from time to time in Trustee's
discretion to take any action (including completion and presentation of any
proxy) and to execute any instrument that Trustee may deem necessary or
advisable to accomplish the purposes of this Agreement, including, without
limitation (but subject to the other provisions hereof), to (i) receive, endorse
and collect all instruments made payable to Company representing any dividend or
other distribution in respect of the Pledged Collateral or any part thereof;
(ii) exercise the voting and other consensual rights pertaining to the Pledged
Collateral; and (iii) sell, transfer, pledge, make any agreement with respect to
or otherwise deal with any of the Pledged Collateral as fully and completely as
though Trustee was the absolute owner thereof for all purposes, and to do, at
Trustee's option and Company's expense, at any time or from time to time, all
acts and things that Trustee deems necessary to protect, preserve or realize
upon the Pledged Collateral. Company hereby ratifies and approves all acts of
Trustee made or taken pursuant to this Section 9. Except as specifically set
forth in Section 11 hereof, neither Trustee nor any Person designated by Trustee
shall be liable for any acts or omissions or for any error of judgment or
mistake of fact or law. This power of attorney, being coupled with an interest,
shall be irrevocable until all Secured Obligations shall have been paid in full.
10. Trustee May Perform. If Company fails to perform any agreement
contained herein, Trustee may itself perform, or cause performance of, such
agreement, and the expenses of Trustee incurred in connection therewith shall be
payable by Company under Section 15 hereof, and be a part of the Secured
Obligations.
11. Limitation on Duty of Trustee with Respect to the Pledged
Collateral. The powers conferred on Trustee hereunder are solely to protect its
interest in the Pledged Collateral and shall not impose any duty on it to
exercise any such powers. Except for the safe custody of any Pledged Collateral
in its possession and the accounting for monies actually received by it
hereunder, Trustee shall have no duty with respect to any Pledged Collateral in
its possession (or in the possession of any agent or bailee). Trustee shall be
deemed to have exercised reasonable care in the custody and preservation of the
Collateral in its possession if it takes such action for that purpose as Company
reasonably requests in writing, but failure of Trustee to comply with any such
request at any time shall not of itself be deemed a failure to exercise
reasonable care. It is expressly agreed that Trustee shall have no
responsibility for (i) ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters relative to any
Pledged Collateral, whether or not Trustee has or is deemed to have knowledge of
such matters, or (ii) taking any necessary steps to preserve rights against any
parties with respect to any Pledged Collateral, but Trustee may do so and,
subject to Section 15, all expenses incurred in connection therewith shall be
payable by and for the sole account of Company.
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12. Remedies upon Event of Default. If any Event of Default shall
have occurred and is continuing:
(a) Trustee may exercise in respect of the Pledged Collateral, in
addition to other rights and remedies provided for herein or otherwise available
to it, all the rights and remedies of a secured party under the Uniform
Commercial Code (the "UCC") in effect in the State of Illinois at that time,
whether or not the UCC applies to the affected Pledged Collateral, and Trustee
may also, without notice except as specified below, cause the Pledged Collateral
or any part thereof to be sold in one or more parcels at public or private sale,
at any exchange, broker's board or at any of Trustee's offices or elsewhere, for
cash, on credit, or for future delivery, at such price or prices and upon such
other terms as Trustee deems commercially reasonable. Company agrees that, to
the extent notice of sale shall be required by law, at least ten (10) days'
prior written notice to Company of the time and place of any public sale or the
time after which any private sale is to be made shall constitute reasonable
notification. At any sale of the Pledged Collateral, if permitted by law,
Trustee may bid (which bid may be, in whole or in part, in the form of discharge
of the Secured Obligations) for the purchase of the Pledged Collateral or any
portion thereof. Trustee shall not be obligated to cause to make any sale of
Pledged Collateral regardless of notice of sale having been given. Trustee may
cause to adjourn any public or private sale from time to time by announcement at
the time and place fixed therefor, and such sale may, without further notice, be
made at the time and place to which it was so adjourned.
(b) Company recognizes that Trustee may be unable to effect a public
sale of all or part of the Pledged Collateral and may be compelled to resort to
one or more private sales to a restricted group of purchasers who will be
obligated to agree, among other things, to acquire such Pledged Collateral for
their own account, for investment and not with a view to the distribution or
resale thereof. Company acknowledges that any such private sales may be at
prices and on terms less favorable to the seller than if sold at public sales
and agrees that such private sales shall be deemed to have been made in a
commercially reasonable manner, and that Trustee shall be under no obligation to
delay a sale of any of the Pledged Collateral for the period of time necessary
to permit the issuing corporation of such securities to register such securities
for public sale under the Securities Act of 1933, as from time to time amended
(the "Securities Act"), or under any other requirement of law, even if the
issuing corporation would agree to do so. To the extent permitted by law,
Company hereby specifically waives all rights of redemption, stay or appraisal
which Company has or may have under any law now existing or hereafter enacted.
13. Remedies Cumulative. No failure on the part of Trustee to
exercise, and no delay in exercising and no course of dealing with respect to,
any power, privilege or right under the Indenture or this Agreement or other
Security Documents shall operate as a waiver thereof; nor shall any single or
partial exercise by Trustee of any power, privilege or right under the Indenture
or this Agreement or any of the other Security Documents preclude any other or
further exercise thereof or the exercise of any other such power, privilege or
right. The powers, privileges and rights in this Agreement and the Indenture and
other
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Security Documents are cumulative and are not exclusive of any other remedies
provided by law.
14. Application of Proceeds. If an Event of Default has occurred and
is continuing, the proceeds of any sale of, or other realization upon, all or
any part of the Pledged Collateral shall be applied as provided in Section 6.10
of the Indenture.
15. Expenses. Company shall promptly pay to Trustee all reasonable
costs and expenses of Trustee (including reasonable Attorney Costs) in
connection with protecting or perfecting Trustee's security interest in the
Pledged Collateral or in connection with any matters contemplated by or arising
out of this Agreement (including without limitation the enforcement of this
Agreement), the Indenture or any of the other Security Documents.
16. Termination of Security Interests; Release of Collateral. Upon
payment and performance in full of all Secured Obligations, the security
interests granted herein shall automatically terminate and all rights to the
Pledged Collateral shall revert to Company. Upon such termination of the
security interests or release of any Pledged Collateral, Trustee will, at the
expense of Company, return to Company all Pledged Collateral then in Trustee's
possession and execute and deliver to Company such documents as Company shall
reasonably request to evidence the termination of the security interests or the
release of such Pledged Collateral which has not yet theretofore been sold or
otherwise applied or released. Such release shall be without recourse or
warranty to Trustee.
17. Amendments, Waivers and Consents. No amendment, modification,
termination or waiver of any provision of this Agreement, or consent to any
departure by Company therefrom, shall in any event be effective without the
written concurrence of Trustee and Company.
18. Notices. All notices, requests and other communications
hereunder shall be given to Company at the facsimile number and address set
forth on the signature page hereof and to Trustee in accordance with Section
12.03 of the Indenture.
19. Successors and Assigns. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that Company may not assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of Trustee and each Holder.
20. Waiver. In addition to any other waivers herein, Company waives
to the greatest extent it may lawfully do so, and agrees that it shall not at
any time insist upon, plead or in any manner whatever claim or take the benefit
or advantage of, any appraisal, valuation, stay, extension, marshalling of
assets, redemption or similar law, or exemption, whether now or at any time
hereafter in force, which may delay, prevent or otherwise affect the performance
by Company of its obligations under, or the enforcement by Trustee of, this
Agreement. Company hereby waives diligence, presentment and demand (whether for
nonpayment or protest or of acceptance, maturity, extension of time, change in
nature or form of the Secured Obligations, acceptance of further security,
release of further security,
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composition or agreement arrived at as to the amount of, or the terms of the
Secured Obligations, notice of adverse change in Company's or any other Person's
financial condition or any other fact which might materially increase the risk
to Company) with respect to any of the Secured Obligations or all other demands
whatsoever. Company hereby waives, to the extent it may lawfully do so, any
requirement on the part of any Holder to mitigate the damages resulting from any
default under any Note.
21. Applicable Law.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF ILLINOIS APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED, THAT COMPANY AND TRUSTEE SHALL
RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
INDENTURE OR ANY OTHER SECURITY DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE
STATE OF ILLINOIS SITTING IN COOK COUNTY, ILLINOIS OR OF THE UNITED STATES FOR
THE NORTHERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, COMPANY AND Trustee CONSENT, FOR THEMSELVES AND IN RESPECT OF THEIR
PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. COMPANY AND Trustee
IRREVOCABLY WAIVE ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH THEY MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT
OF THE INDENTURE OR ANY SECURITY DOCUMENT OR OTHER DOCUMENT RELATED THERETO.
COMPANY AND Trustee WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH
STATE.
22. Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT HEREBY
EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION ARISING UNDER THE INDENTURE OR ANY SECURITY DOCUMENT OR IN ANY
WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES
HERETO OR ANY OF THEM WITH RESPECT TO THE INDENTURE OR ANY SECURITY DOCUMENT, OR
THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY
HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO
THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
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SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
23. Failure or Indulgence Not Waiver; Remedies Cumulative;
Severability.
(a) No failure or delay on the part of Trustee or any Holder in the
exercise of, and no course of dealing with respect to, any power, right or
privilege under the Indenture or this Agreement or any other Security Document
shall impair such power, right or privilege or be construed to be a waiver of
any Default or Event of Default or acquiescence therein, nor shall any single or
partial exercise of any such power, right or privilege preclude other or further
exercise thereof or any other right, power or privilege. All rights and remedies
existing under the Indenture, this Agreement, the other Security Documents or by
law afforded are cumulative to, and not exclusive of, any rights or remedies
otherwise available and shall be available to Trustee until the Secured
Obligations have been indefeasibly paid in full.
(b) The invalidity, illegality or unenforceability of any provision
in or obligation under this Agreement shall not affect or impair the validity,
legality or enforceability of the remaining provisions or obligations under this
Agreement.
24. Survival of Representations. All representations and warranties
of Company contained in this Agreement shall survive the execution and delivery
of this Agreement.
25. Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
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Witness the due execution hereof by the duly authorized officer of
the undersigned as of the day first above written.
PEI HOLDINGS, INC.
By /s/ Robert Campbell
------------------------------------
Its Senior Vice President, Treasurer
and Strategic Planning
Address for notices:
PEI Holdings, Inc.
680 North Lake Shore Drive
15th Floor
Chicago, IL 60611
Tel: 312-649-1395
Fax: 312-373-2180
Attn: Senior Vice President -
Treasurer and Strategic
Planning
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BANK ONE, N.A.
as Trustee
By /s/ George N. Reaves
------------------------------------
Its Vice President
Address for notices:
1 Bank One Plaza
Mail Code IL1-0430
Chicago, IL 60670-0430
Fax: 312-336-8840
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SCHEDULE I
TO PLEDGE AGREEMENT
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Percentage of
Share Outstanding
Class of Number of Certificate Shares of
Name of Company Stock Shares Number Capital Stock
--------------------------------------------------------------------------------
Playboy Enterprises Common A 10 Class A CA3 100%
International, Inc. Common B 90 Class B CB3
--------------------------------------------------------------------------------
Spice Entertainment, Common 100 3 100%
Inc.
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S-1