Rights Agreement [Amendment] - Marvel Enterprises Inc. and American Stock Transfer & Trust Co.
AMENDMENT
TO
RIGHTS AGREEMENT
This Amendment (this "Amendment") to the Rights Agreement by and
between Marvel Enterprises, Inc. (the "Company") and American Stock Transfer &
Trust Company as Rights Agent, first dated as of August 22, 2000 (the "Rights
Agreement"), is made as of this 30th day of November, 2001, pursuant to action
by the Board of Directors of the Company authorizing the Amendment in accordance
with Section 26 of the Rights Agreement. Capitalized terms used and not defined
herein shall have the respective meanings ascribed thereto in the Rights
Agreement.
1. AMENDMENT TO SECTION 1.1. Section 1.1 of the Rights Agreement is hereby
deleted in its entirety and restated as follows:
1.1. "Acquiring Person" shall mean any Person (as such term is
hereinafter defined) who or which, together with all Affiliates and
Associates (as such terms are hereinafter defined) of such Person,
shall be the Beneficial Owner (as such term is hereinafter defined) of
15% or more of the Common Shares of the Company then outstanding but
shall not include an Exempt Person (as such term is hereinafter
defined). Notwithstanding the foregoing, no Person shall become an
"Acquiring Person" due to such Person becoming the Beneficial Owner of
15% or more of the Common Shares as a result of the issuance by the
Company of Common Shares to such Person in consideration for the sale,
contribution, conveyance, transfer, assignment or delivery of property,
services or other assets by such Person to the Company. Notwithstanding
the first sentence of this Section 1.1,
(i) no Person shall become an "Acquiring Person" as the result
of an acquisition of Common Shares or 8% Preferred Shares by
the Company which, by reducing the number of shares
outstanding, increases
the proportionate number of shares beneficially owned by such
Person to 15% or more of the Common Shares of the Company then
outstanding,
(ii) no Person shall become an "Acquiring Person" as the
result of the acquisition of Common Shares or 8% Preferred
Shares from an individual who, on the date of this Agreement,
is the Beneficial Owner of 15% or more of the Common Shares if
such Common Shares or 8% Preferred Shares are received upon
that individual's death pursuant to that individual's will or
pursuant to a charitable trust created by that individual for
estate planning purposes,
(iii) no Person shall become an "Acquiring Person" as the
result of the beneficial ownership of (A) Common Shares
beneficially owned by such Person on the date hereof unless
such Person becomes, after the date hereof, the Beneficial
Owner of an additional 1% or more of the Common Shares
outstanding or (B) Common Shares beneficially owned as the
result of stock dividends, subdivisions or similar
transactions with respect to Common Shares or 8% Preferred
Shares; provided, however, that if a Person shall become the
Beneficial Owner of 15% or more of the Common Shares of the
Company then outstanding solely by reason of share purchases
by the Company or by reason of shares received upon an
individual's death as aforesaid and shall thereafter become
the Beneficial Owner of one or more additional Common Shares
of the Company (other than pursuant to a dividend or
distribution paid or made by the Company on the outstanding
Common Shares in Common Shares or on the outstanding 8%
Preferred Shares in 8% Preferred Shares or pursuant to a split
or subdivision of the outstanding Common Shares or 8%
Preferred Shares), then such Person shall be deemed to be an
"Acquiring Person" unless upon becoming the Beneficial Owner
of such additional Common Shares such Person does not
beneficially own 15% or more of the Common Shares then
outstanding,
(iv) Isaac Perlmutter shall not become or be deemed an
"Acquiring Person" as a result of (x) the issuance to Isaac
Perlmutter of warrants to purchase Common Stock pursuant to
the Warrant Agreement, dated as of November 30, 2001, between
the Company and Isaac Perlmutter or the acquisition of
beneficial ownership by Isaac Perlmutter of any shares of
Common Stock issued or issuable pursuant to that warrant
agreement or (y) the issuance to Isaac Perlmutter of options
to purchase Common Stock pursuant to the Employment Agreement,
dated as of November 30, 2001, between the Company and Isaac
Perlmutter or the acquisition of beneficial ownership of any
shares of Common Stock issued or issuable pursuant to those
options, and
(v) No stockholder of the Company who is a party to that
certain Voting Agreement dated as of November 30, 2001 by and
among the Company, Avi Arad, Isaac Perlmutter, Morgan Stanley
& Co. Incorporated, and Whippoorwill Associates shall become
or be deemed, whether individually or in combination with any
other stockholder who is a party thereof, an "Acquiring
Person" solely by virtue of their execution of such agreement.
2. EFFECTIVE DATE. This Amendment shall be effective immediately.
3. Original Document. The terms of the Rights Agreement shall remain in
full force and effect without modification or amendment except as expressly set
forth herein.
4. COUNTERPARTS. This Amendment may be executed in any number of
counterparts (including by facsimile transmission), and each of such
counterparts shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute one and the same instrument.
[SIGNATURE PAGE TO FOLLOW]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed, as of the date first above written.
MARVEL ENTERPRISES, INC.
By: /s/ F. Peter Cuneo
Name: F. Peter Cuneo
Title: President and Chief Executive Officer
AMERICAN STOCK TRANSFER & TRUST COMPANY
By: /s/ Herbert J. Lemmer
Name: Herbert J. Lemmer
Title: Vice President