Warrant Agreement - Marvel Enterprises Inc. and American Stock Transfer & Trust Co.
PLAN WARRANT AGREEMENT
WARRANT AGREEMENT
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WARRANT AGREEMENT, dated as of October 1, 1998 (this "Agreement")
between Marvel Enterprises, Inc., a Delaware corporation (the "Company"), and
American Stock Transfer & Trust Company, as warrant agent (the "Warrant Agent").
WHEREAS, as consideration paid by the Company in connection with the
settlement and resolution of all disputes between certain unsecured creditors of
Marvel Entertainment Group, Inc., a Delaware corporation ("Marvel"), and the
Debtors (as herein defined), in connection with a Fourth Amended Joint Plan of
Reorganization under Chapter 11, Title 11, United States Code (the "Plan of
Reorganization"), for Marvel, the Asher Candy Company, Fleer Corp., Frank H.
Fleer Corp., Heroes World Distribution, Inc., Malibu Comics Entertainment, Inc.,
Marvel Characters, Inc., Marvel Direct Marketing Inc., and SkyBox International
Inc. (collectively, the "Debtors"), jointly proposed by the Company and certain
holders of senior secured indebtedness of Marvel, the Company proposes to issue
and deliver warrant certificates (the "Warrant Certificates") as provided in the
Plan of Reorganization to each holder of an Allowed Unsecured Claim (as defined
in the Plan of Reorganization) evidencing Plan Warrants (the "Warrants") to
acquire, under certain circumstances, up to an aggregate of 1,750,000 shares of
the common stock, $.01 par value per share, of the Company (the "Common Stock"),
such number of Warrants and shares of Common Stock being subject to adjustment
as set forth herein; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act, in connection with the
issuance of the Warrant Certificates and other matters provided herein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, and for the purpose of defining the respective
rights and obligations of the Company, the Warrant Agent and the Holders (as
defined herein), the parties hereto agree as follows:
SECTION 1. Certain Definitions. As used in this Agreement, the
following terms shall have the following respective meanings:
"Affiliate" means, (i) with respect to any specified Person, any other
Person that, directly or indirectly, controls, is controlled by or is under
direct or indirect common
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control with such specified Person, or any executive officer or director of any
such specified Person or other Person or (ii) with respect to any natural
Person, any Person having a relationship with such person by blood, marriage or
adoption not more remote than first cousin. For the purposes of this definition,
"control," when used with respect to any specified Person, means the possession,
direct or indirect, of the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; provided, however, that beneficial
ownership of 10% or more of the voting securities of a Person will be deemed to
be control. The terms "controlling" and "controlled" have meanings correlative
to the foregoing.
"Board of Directors" means the Company's Board of Directors or a duly
appointed committee of the Company's Board of Directors.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in The City of New York,
or the city in which the principal corporate trust office of the Warrant Agent
is located, are authorized or obligated by law or executive order to be closed.
"Common Stock" has the meaning set forth in the preamble hereof.
"Company" means Marvel Enterprises, Inc., a Delaware corporation, and
its successors and assigns.
"Consummation Date" has the meaning set forth in the Plan of
Reorganization.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Securities and Exchange Commission
thereunder.
"Exercise Price" means the purchase price per share of Common Stock to
be paid upon the exercise of each Warrant in accordance with the terms hereof,
which price shall be $17.25 per share of Common Stock, subject to adjustment
from time to time pursuant to Section 11 hereof.
"Expiration Date" means the first business day after the fourth
anniversary of the Consummation Date.
"Fair Market Value" means, with respect to any share of Common Stock,
as of the date of determination the average of the daily Closing Price for each
of the 20 consecutive trading days preceding the date of such computation. The
closing price for each day shall be:
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(a) if the Common Stock shall be then listed or admitted to trading on
the New York Stock Exchange, the closing price on the
NYSE-Consolidated Tape (or any successor composite tape reporting
transactions on the New York Stock Exchange) or, if such a composite
tape shall not be in use or shall not report transactions in the
Common Stock, or if the Common Stock shall be listed on a stock
exchange other that the New York Stock Exchange, the last reported
sales price regular way or, in case no such reported sale takes place
on such day, the average of the closing bid and asked prices regular
way for such day, in each case on the principal national securities
exchange on which the shares of Common Stock are listed or admitted to
trading (which shall be the national securities exchange on which the
greatest number of shares of the Common Stock have been traded during
such 20 consecutive trading days); or
(b) if the Common Stock is not listed or admitted to trading, the
average of the closing sale prices as reported by the NASDAQ National
Market System or, if the Common Stock is not included on such system,
the average of the closing bid and asked prices of the Common Stock in
the over-the-counter market as reported by any system maintained by
the NASD or any comparable system or, if the Common Stock is not
included for quotation in any such system, the average of the closing
bid and asked prices as furnished by two members of the NASD selected
reasonably and in good faith from time to time by the Board of
Directors for that purpose; or
(c) if the Common Stock is not listed or admitted to trading and in
the absence of one or more such quotations, the Fair Market Value
shall be as reasonably determined in good faith by the Board of
Directors (which determination shall be reasonably described in a
written notice delivered to the Warrantholders) or, if an objection is
made to such determination by a Qualifying Warrantholder (as defined
below) in accordance with the following sentence, as determined by an
Independent Appraiser in accordance with the following sentence. In
the event that any Qualifying Warrantholder shall object to the
determination of the Board of Directors of the Fair Market Value by
delivering written notice to the Company within ten (10) Business Days
following the receipt by such Qualifying Warrantholder of such
determination of the Board of Directors, the Fair Market Value shall
instead be determined in good faith by an Independent Appraiser. The
determination of the Board of Directors of the Fair Market Value shall
be binding and conclusive if no objection is made to such
determination by a Qualifying Warrantholder in accordance with the
terms set forth above in this paragraph. The fees and expenses of any
Independent Appraiser determining the Fair Market Value shall be borne
by the Company and the determination by such Independent Appraiser of
the Fair Market Value shall be binding and conclusive.
"Holder" or "Warrantholder" means the registered holder of a Warrant.
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"Independent Appraiser" means any nationally recognized investment
banking firm or accounting firm (other than any investment banking firm or
accounting firm having a significant ongoing relationship with the Company or
the Qualifying Warrantholder at the time of the appraisal) selected jointly in
good faith by the Board of Directors and the Qualifying Warrantholder, whose
fees and expenses shall be paid by the Company.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof, or other entity.
"Plan of Reorganization" has the meaning set forth in the preamble
hereof.
"Qualifying Warrantholder" means any Warrantholder (or group of
Warrantholders) that, at the time of any objection to the determination of the
Board of Directors of the Fair Market Value, beneficially owns collectively,
together with its Affiliates, at least ten percent (10%) of the Warrants on a
fully diluted basis.
"Register" has the meaning set forth in Section 5(c) hereof.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar Federal statute, and the rules and regulations of the Securities and
Exchange Commission thereunder.
"Transfer Agent" has the meaning set forth in Section 10 hereof.
"Warrant Agent" means American Stock Transfer & Trust Company or the
successor or successors of such Warrant Agent appointed in accordance with the
terms hereof.
"Warrant Certificates" has the meaning set forth in the preamble
hereof.
"Warrants" has the meaning set forth in the preamble hereof.
"Warrants Shares" means the shares of Common Stock issued or issuable
upon the exercise of the Warrants pursuant to the terms of this Agreement.
SECTION 2. Appointment of Warrant Agent. The Company hereby appoints
the Warrant Agent to act as agent for the Company in accordance with the terms
and conditions set forth in this Agreement, and the Warrant Agent hereby accepts
such appointment.
SECTION 3. Warrant Certificates. (a) The Warrant Certificates to be
delivered pursuant to this Agreement shall be in registered form only, shall be
substantially in the form set forth in Exhibit A attached hereto and shall have
such insertions as are appropriate or required or
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permitted by this Agreement and may have such letters, numbers, designations or
other marks of identification and such legends, summaries and endorsements
stamped, printed, lithographed or engraved thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this Agreement,
or as may be required to comply with any law or with any rule or regulation
pursuant thereto or with any rule or regulation of any securities exchange on
which the Warrants may from time to time be listed. Warrant Certificates shall
be dated the date of countersignature by the Warrant Agent.
(b) Pending the preparation of definitive Warrant Certificates,
temporary Warrant Certificates may be issued, which may be printed,
lithographed, typewritten, mimeographed or otherwise produced, and which will be
substantially of the tenor of the definitive Warrant Certificates in lieu of
which they are issued.
(c) If temporary Warrant Certificates are issued, the Company will
cause definitive Warrant Certificates to be prepared without unreasonable delay.
After the preparation of definitive Warrant Certificates, the temporary Warrant
Certificates shall be exchangeable for definitive Warrant Certificates upon
surrender of the temporary Warrant Certificates to the Warrant Agent, without
charge to the Holder. Temporary Warrant Certificates so surrendered for exchange
shall be canceled by the Warrant Agent and disposed of by the Warrant Agent in a
manner satisfactory to the Company. Until so exchanged, the temporary Warrant
Certificates shall in all respects be entitled to the same benefits under this
Agreement as definitive Warrant Certificates.
SECTION 4. Execution of Warrant Certificates. (a) Warrant Certificates
shall be signed on behalf of the Company by its Chairman of the Board, its Chief
Executive Officer, its President or a Vice President of the Company. Such
signature upon the Warrant Certificates may be manual or in the form of a
facsimile signature of the present or any future Chairman of the Board, Chief
Executive Officer, President or Vice President of the Company, and may be
imprinted or otherwise reproduced on the Warrant Certificates and for that
purpose the Company may adopt and use the facsimile signature of any person who
shall have been Chairman of the Board, Chief Executive Officer, President or
Vice President of the Company, notwithstanding the fact that at the time the
Warrant Certificates shall be countersigned and delivered or disposed of he or
she shall have ceased to hold such office.
(b) In case any officer of the Company who shall have signed any of
the Warrant Certificates shall cease to be such officer before the Warrant
Certificates so signed shall have been countersigned by the Warrant Agent, or
delivered to the Holder thereof, such Warrant Certificates nevertheless shall be
countersigned and delivered with the same force and effect as though such person
had not ceased to be such officer of the Company, unless the Warrant Agent has
received written instructions from the Company not to countersign and deliver
such Certificates; and any Warrant Certificate may be signed on behalf of the
Company by any person who, at the actual date of the execution of such Warrant
Certificate, shall be a proper officer of
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the Company to sign such Warrant Certificate, although at the date of the
execution of this Warrant Agreement any such person was not such officer.
SECTION 5. Registration and Countersignature. (a) The Company and the
Warrant Agent, on behalf of the Company, shall number and register the Warrant
Certificates in a Register (as hereinafter defined) as they are issued by the
Company which such register shall be maintained in accordance with Section 5(c)
hereof.
(b) Warrant Certificates shall be manually countersigned by the
Warrant Agent and shall not be valid for any purpose unless so countersigned.
The Warrant Agent shall, upon written instructions of the Chairman of the Board,
the Chief Executive Officer, the President or a Vice President of the Company,
initially countersign, issue and deliver Warrants entitling the Holders thereof
to purchase not more than the number of Warrant Shares referred to above in the
first recital hereof and shall countersign and deliver Warrants as otherwise
provided in this Agreement.
(c) The Company shall maintain, or cause to be maintained, a register
(the "Register") of the Warrants at its registered office, at the principal
office of the Warrant Agent or at any other place in the United States of
America designated by the Company, showing (i) the names and the latest known
address of each person who is or has been a Holder; (ii) the number of Warrants
held by each Holder; and (iii) the date and particulars of the issue and
transfer of Warrants. The registered owner on the Register may be deemed and
treated by the Company, the Warrant Agent and all other persons dealing with the
Warrants evidenced thereby as the Holder and absolute owner thereof for any
purpose and as the person entitled to exercise the right represented thereby, or
to the transfer on the books of the Company, any notice to the contrary
notwithstanding, and, until such transfer of the Warrant on such books in
accordance with the provisions of this Agreement, the Company may treat the
registered owner on the Register as the owner for all purposes.
SECTION 6. Registration of Transfers and Exchanges. (a) The Warrant
Agent shall from time to time, subject to the limitations of Section 7 hereof,
register the transfer of any outstanding Warrant Certificates upon the records
to be maintained by it for that purpose, upon surrender thereof accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Warrant Agent, duly executed by the Holder or Holders thereof or by the duly
appointed legal representative thereof or by a duly authorized attorney. Upon
any such registration of transfer a new Warrant Certificate(s) of like tenor and
representing in the aggregate the number of Warrants transferred, shall be
issued to the transferee(s), and the surrendered Warrant Certificate shall be
canceled by the Warrant Agent. Upon any partial transfer, a new Warrant
Certificate of like tenor and representing in the aggregate the number of
Warrants which were not so transferred, shall be issued to, and in the name of,
the Warrantholder. Canceled Warrant Certificates shall thereafter be disposed of
in a manner satisfactory to the Company.
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(b) Any Warrant Certificate may be exchanged, subdivided or combined
with other Warrant Certificates evidencing the same rights as the rights
evidenced thereby upon presentation and surrender thereof at the principal
office of the Warrant Agent, together with a written notice signed by the Holder
hereof specifying the denominations in which new Warrant Certificate(s) are to
be issued. Upon presentation and surrender of any Warrant Certificates, together
with such written notice, for exchange, subdivision or combination of such
Warrant Certificates, the Company will issue a new Warrant Certificate or
Warrant Certificates, in the denominations requested, of like tenor entitling
the Holder(s) thereof to purchase the same aggregate number of Warrant Shares as
the Warrant Certificate(s) so surrendered. Such new Warrant Certificate(s) will
be registered in the name of the Holder submitting such request. Any Warrant
Certificate surrendered for exchange, subdivision or combination shall be
canceled promptly upon the issuance of such new Warrant Certificate(s) and then
be disposed of by such Warrant Agent in a manner satisfactory to the Company.
(c) The Warrant Agent is hereby authorized to countersign and deliver,
in accordance with the provisions of this Section 6 and of Section 5 hereof, the
new Warrant Certificates required pursuant to the provisions of this Section 6.
SECTION 7. Terms of Warrants; Exercise of Warrants. (a) Subject to the
terms of this Agreement, each Holder shall have the right, upon payment of the
Exercise Price in accordance with the terms of this Agreement, from and after
the date of issuance of such Warrants until 5:00 p.m., New York City time, on
the Expiration Date, to receive from the Warrant Agent on behalf of the Company
the number of fully paid and nonassessable Warrant Shares which the Holder may
at the time be entitled to receive on exercise of Warrants. Each Warrant not
exercised on or before 5:00 p.m., New York City time, on the Expiration Date
shall become void and all rights thereunder and all rights in respect thereof
under this Agreement shall cease as of such time.
(b) The Warrants may be exercised during normal business hours on any
Business Day on or prior to the Expiration Date upon surrender to the Warrant
Agent on behalf of the Company at the principal office of the Warrant Agent of
the certificate or certificates evidencing the Warrants to be exercised with the
form of subscription to purchase on the reverse thereof duly completed and
signed, and upon payment to the Warrant Agent for the account of the Company of
the Exercise Price as adjusted as herein provided, for each of the Warrant
Shares in respect of which such Warrants are then exercised. Payment of the
aggregate Exercise Price for the number of Warrant Shares specified in the
subscription form shall be made by wire transfer or by certified or official
bank check payable to the order of the Company in immediately available funds in
lawful money of the United States of America.
(c) Upon surrender of Warrants in accordance with this Section 7, and
payment of the Exercise Price as provided above, the Warrant Agent shall
thereupon promptly notify the Company, and the Warrant Agent shall deliver or
cause to be delivered, as promptly as possible thereafter, but in any event
within three (3) Business Days of receipt of such surrender and payment, to the
Holder of such Warrant Certificate appropriate evidence of ownership of any
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Warrant Shares or other securities or property (including any money) to which
the Holder is entitled, and, to the extent possible, certificates representing
the Warrant Shares or such other securities shall be in such denomination(s) as
such Holder shall request, and registered or otherwise placed in, or payable to
the order of, such name or names as may be directed in writing by the Holder,
and shall deliver or cause to be delivered such evidence of ownership and any
other securities or property (including any money) to the person or persons
entitled to receive the same, together with an amount in cash in lieu of any
fraction of a share as provided in Section 13 hereof. Any such evidence of
ownership shall be deemed to have been issued and any Person so designated to be
named therein shall be deemed to have become a holder of record of such Warrant
Shares as of the date of the surrender of such Warrants and payment of the
Exercise Price, notwithstanding that the stock transfer books of the Company
shall then be closed or that certificates representing such shares shall not
then be actually delivered to the Holder.
(d) The Warrants shall be exercisable either in full or from time to
time in part and, in the event that a Warrant Certificate is surrendered to the
Warrant Agent for exercise of fewer than all of the Warrants represented by such
Warrant Certificate at any time prior to the Expiration Date, a new certificate
evidencing the remaining Warrant or Warrants but otherwise identical to the
surrendered Warrant Certificate will be issued by the Company, and the Warrant
Agent is hereby irrevocably authorized to countersign and to deliver the
required new Warrant Certificate pursuant to the provisions of this Section 7
and of Section 4 hereof as promptly as possible, but in any event within three
(3) Business Days of receipt of the certificate evidencing the Warrants, and the
Company, whenever required by the Warrant Agent, will supply the Warrant Agent
with Warrant Certificates duly executed on behalf of the Company for such
purpose.
(e) All Warrant Certificates surrendered upon exercise of Warrants
shall be canceled by the Warrant Agent. Such canceled Warrant Certificates shall
then be disposed of by the Warrant Agent in a manner satisfactory to the
Company. The Warrant Agent shall account promptly to the Company with respect to
such Warrants exercised and concurrently pay to the Company as promptly as
practicable, but in any event within five (5) Business Days of receipt, all
monies received by the Warrant Agent for the purchase of the Warrant Shares
through the exercise of such Warrants.
(f) The Warrant Agent shall keep copies of this Agreement and any
notices given or received hereunder by or from the Company available for
inspection by the Holders during normal business hours at its office. The
Company shall supply the Warrant Agent from time to time with such numbers of
copies of this Agreement as the Warrant Agent may reasonably request.
SECTION 8. Payment of Taxes. The Company will pay all documentary
stamp taxes and other governmental charges attributable to the initial issuance
of Warrant Shares upon the exercise of Warrants; provided, however, that the
Company shall not be required to pay any tax or taxes which may be payable in
respect of any transfer involved in the issue of any Warrant
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Certificates or any certificates for Warrant Shares in a name other than that of
the Holder of a Warrant Certificate surrendered upon the exercise of a Warrant,
and the Company shall not be required to issue or deliver such Warrant
Certificates unless or until the Person or Persons requesting the issuance
thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid.
SECTION 9. Mutilated, Destroyed, Lost and Stolen Warrant Certificates.
(a) If (i) any mutilated Warrant Certificate is surrendered to the Warrant Agent
or (ii) the Company and the Warrant Agent receive evidence to their reasonable
satisfaction of the destruction, loss or theft of any Warrant Certificate, and
there is delivered to the Company and the Warrant Agent such certificate or
indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Company or the Warrant Agent that such Warrant
Certificate has been acquired by a bona fide purchaser, the Company shall
execute and upon the Company's written request the Warrant Agent shall
countersign and deliver, in exchange for any such mutilated Warrant Certificate
or in lieu of and in substitution for any such destroyed, lost or stolen Warrant
Certificate, a new Warrant Certificate of like tenor and for a like aggregate
number of Warrants. An applicant for such a substitute Warrant Certificate shall
also comply with such other reasonable regulations as the Company may prescribe.
(b) Upon the issuance of any new Warrant Certificate under this
Section 9, the Company may require the payment by the Holder of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto and the payment of such other reasonable charges as the Company may
prescribe, including reimbursement of reasonable fees and expenses of the
Company and the Warrant Agent incidental thereto.
(c) The provisions of this Section 9 are exclusive and shall preclude
(to the extent lawful) all other rights or remedies with respect to the
replacement of mutilated, destroyed, lost or stolen Warrant Certificates.
SECTION 10. Issuance of Warrant Shares. The Company will keep a copy
of this Agreement on file with the transfer agent for the Common Stock (the
"Transfer Agent") and with every subsequent transfer agent for any shares of the
Company's capital stock issuable upon the exercise of the rights of purchase
represented by the Warrants. The Warrant Agent is hereby irrevocably authorized
to requisition, from time to time, from such Transfer Agent the certificates
representing shares of the Common Stock and any cash which may be payable as
provided in Section 13 hereof required to honor outstanding Warrants upon
exercise thereof in accordance with the terms of this Agreement. The Company
will supply such Transfer Agent with duly executed certificates representing
shares of Common Stock for such purposes and will provide or otherwise make
available any cash which may be payable as provided in Section 13 hereof. The
Company will furnish such Transfer Agent and the Warrant Agent a copy of all
notices of adjustments and certificates related thereto, transmitted to each
Holder of the Warrants pursuant to Section 14 hereof.
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SECTION 11. Adjustment of Exercise Price and Number of Warrant Shares
Issuable. The number and kind of Warrant Shares purchasable upon the exercise of
Warrants and the Exercise Price shall be subject to adjustment from time to time
as follows:
(a) Stock Dividends. If at any time after the date of the issuance of
the Warrants and prior to the Expiration Date (i) the Company shall
pay a stock dividend or other distribution payable in shares of Common
Stock or (ii) the number of shares of Common Stock shall have been
increased by a subdivision or split-up of shares of Common Stock,
then, on the date of the payment of such dividend or distribution
(retroactive to the record date) or immediately after the effective
date of subdivision or split-up, as the case may be, the number of
Warrant Shares to be delivered upon exercise of the Warrants will be
increased so that the Warrantholder will be entitled to receive the
number of Warrant Shares that such Warrantholder would have owned
immediately following such action had the Warrants been exercised
immediately prior thereto or, in the case of a stock dividend or
distribution, prior to the record date for determination of
shareholders entitled thereto, and the Exercise Price will be adjusted
as provided in Section 11(g) hereof.
(b) Combination of Stock. If the number of shares of Common Stock
outstanding at any time after the date of the issuance of the Warrants
shall have been decreased by a combination of the outstanding shares
of Common Stock, then, immediately after the effective date of such
combination, the number of Warrant Shares to be delivered upon
exercise of each Warrant will be decreased so that the Warrantholder
thereafter will be entitled to receive the number of Warrant Shares
that such Warrantholder would have owned immediately following such
action had such Warrant been exercised immediately prior thereto, and
the Exercise Price will be adjusted as provided in Section 11(g)
hereof.
(c) Reorganization, Etc. If any capital reorganization of the Company,
or any reclassification of the Common Stock, or any consolidation of
the Company with or merger of the Company with or into any other
Person or any sale, lease or other transfer of all or substantially
all of the assets of the Company to any other Person, shall be
effected in such a way that the holders of Common Stock shall be
entitled to receive stock, other securities, cash or other assets
(whether such stock, other securities, cash or other assets are issued
or distributed by the Company or another Person) with respect to or in
exchange for Common Stock, then, upon exercise of each Warrant, the
Warrantholder shall have the right to receive the kind and amount of
stock, other securities, cash or other assets receivable upon such
reorganization, reclassification, consolidation, merger or sale, lease
or other transfer by a holder of the number of Warrant Shares that
such Warrantholder would have been entitled to receive upon exercise
of such Warrant had such Warrant been exercised immediately before
such reorganization, reclassification,
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consolidation, merger or sale, lease or other transfer, subject to
adjustments (as determined in good faith by the Board of Directors of
the Company). Adjustments for events subsequent to the effective date
of such a reorganization, reclassification, consolidation, merger,
sale or transfer of assets shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Agreement. In any
such event, effective provisions shall be made in the certificate or
articles of incorporation of the resulting or surviving corporation,
in any contract of sale, merger, conveyance, lease, transfer or
otherwise so that the provisions set forth herein for the protection
of the rights of the Warrantholders shall thereafter continue to be
applicable; and any such resulting or surviving corporation shall
expressly assume the obligation to deliver, upon exercise, such shares
of stock, other securities, cash and property. The provisions of this
Section 11 shall similarly apply to successive consolidations,
mergers, sales, leases or transfers.
(d) Adjustment for Rights Issue. In case the Company shall issue
rights, options or warrants or other securities convertible or
exchangeable for Common Stock or for any other such right, option or
warrant (collectively, "Rights") to all holders of its outstanding
Common Stock entitling them to subscribe for purchase or obtain upon
conversion or exchange to shares of Common Stock at a Price Per Share
which is lower at the record date mentioned below than either (x) the
then current Fair Market Value per share of Common Stock or (y) the
Exercise Price, or both, the number of Warrant Shares thereafter
purchasable upon the exercise of each Warrant shall be determined by
multiplying the number of Warrant Shares theretofore purchasable upon
exercise of each Warrant by a fraction, the numerator of which shall
be the number of shares of Common Stock outstanding on the date of
issuance of such Rights plus the additional Number of Shares of Common
Stock offered for subscription, purchase or issuance upon conversion
or exchange in connection with such Rights and the denominator of
which shall be the number of shares of Common Stock outstanding on the
date of issuance of such Rights plus the number of shares which the
aggregate Proceeds received or receivable by the Company upon exercise
of such Rights would purchase at the greater of (x) the Fair Market
Value per share of Common Stock at such record date or (y) the
Exercise Price. Such adjustment shall be made whenever Rights are
issued, and shall become effective immediately after the record date
for the determination of stockholders entitled to receive Rights. As
used herein, "Price Per Share" shall be defined and determined in
accordance with the following formula:
P = R/N
where
P = Price Per Share;
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R = the "Proceeds" received or receivable by the Company in
respect of Rights which shall be the total amount received or
receivable by the Company in consideration for the issuance and
sale of such Rights plus the aggregate amount of additional
consideration payable to the Company upon exercise thereof;
provided that the proceeds received or receivable by the Company
shall be the cash proceeds before deducting therefrom any
compensation paid or discount allowed in the sale, underwriting
or purchase thereof by underwriters or dealers or others
performing similar services; and
N = the "Number of Shares," which in the case of Rights is the
maximum number of shares of Common Stock initially issuable upon
exercise thereof.
(e) Adjustment for Other Distributions. In case the Company shall
distribute to all holders of its shares of Common Stock (x) evidences
of indebtedness or assets (excluding cash dividends or distributions
payable out of the consolidated earnings or surplus legally available
for such dividends or distributions and dividends or distributions
referred to in paragraphs (a), (c) or (d) above) of the Company or any
subsidiary or (y) shares of capital stock of a subsidiary of the
Company (such evidences of indebtedness, assets and securities as set
forth in clauses (x) and (y) above, collectively, "Assets"), then in
each case the number of Warrant Shares thereafter purchasable upon the
exercise of each Warrant shall be determined by multiplying the number
of Warrant Shares theretofore purchasable upon the exercise of each
Warrant by a fraction, the numerator of which shall be the Fair Market
Value per share of Common Stock on the date of such distribution and
the denominator of which shall be such Fair Market Value per share of
Common Stock less the fair value as of such record date as determined
reasonably and in good faith by the Board of Directors of the Company
of the portion of the Assets applicable to one share of Common Stock.
Such adjustment shall be made whenever any such distribution is made,
and shall become effective on the date of distribution retroactive to
the record date for the determination of stockholders entitled to
receive such distribution.
(f) Carryover. Notwithstanding any other provision of this Section 11,
no adjustment shall be made to the number of Warrant Shares to be
delivered to the Warrantholder (or to the Exercise Price) if such
adjustment represents less than 1% of the number of Warrant Shares to
be so delivered, but any lesser adjustment shall be carried forward
and shall be made at the time and together with the earlier to occur
of (i) the exercise of all or any portion of a Warrant and (ii) the
next subsequent adjustment that, together with any adjustments so
carried forward, shall amount to 1% or more of the number of Warrant
Shares to be so delivered.
677106.12
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<PAGE>
(g) Exercise Price Adjustment.
(i) Whenever the number of Warrant Shares purchasable upon the
exercise of the Warrants is adjusted as provided pursuant to this
Section 11, the Exercise Price payable upon the exercise of a
Warrant shall be adjusted by multiplying such Exercise Price
immediately prior to such adjustment by a fraction, the numerator
of which shall be the number of Warrant Shares purchasable upon
the exercise of the Warrant immediately prior to such adjustment,
and the denominator of which shall be the number of Warrant
Shares purchasable immediately thereafter; provided, however,
that the Exercise Price for each Warrant Share shall in no event
be less than the par value of such Warrant Share.
(ii) If at any time after the date of the issuance of a Warrant,
the Company shall pay to holders of record of Common Stock any
cash dividends or other cash distributions, then, on the date of
the payment of such dividend or distribution (retroactive to the
record date), the Exercise Price payable upon the exercise of
such Warrant shall be adjusted by reducing the Exercise Price by
the amount of such dividend or distribution applicable to one
share of Common Stock; provided, however, that the Exercise Price
for each Warrant Share shall in no event be less than the par
value of such Warrant Share.
(h) Decrease in Exercise Price. The Company, in its sole discretion,
shall have the right at any time, or from time to time, to decrease
the Exercise Price of the Warrants and/or increase the number of
Warrants Shares issuable upon the exercise of the Warrants, including
as it considers to be advisable in order that any event treated for
federal income tax purposes as a dividend of stock or stock rights
shall not be taxable to recipients.
(i) Other Adjustments. If any event occurs as to which the foregoing
provisions of this Section 11 are not strictly applicable or, if
strictly applicable, would not, in the good faith judgment of the
Board of Directors, fairly protect the purchase rights of the Holders
in accordance with the essential intent and principles of such
provisions, then the Board of Directors shall make such adjustments in
the application of such provisions, in accordance with such essential
intent and principles, as shall be reasonably necessary, in the good
faith opinion of the Board of Directors, to protect such purchase
rights as aforesaid.
(j) Further Equitable Adjustments. If, after one or more adjustments
to the Exercise Price pursuant to this Section 11, the Exercise Price
cannot be reduced further without falling below the greater of (i)
$0.01 or (ii) the lowest positive
677106.12
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<PAGE>
exercise price legally permissible for warrants to acquire shares of
Common Stock, the Company shall make further adjustments to compensate
the Holder, consistent with the foregoing principles, as the Board of
Directors, acting in good faith, deems necessary, including an
increase in the number of Warrant Shares issuable upon exercise of
outstanding Warrants and/or a cash payment to the Holders.
SECTION 12. Statement on Warrants. Irrespective of any adjustment(s)
in the number or kind of Warrant Shares issuable upon the exercise in whole or
in part of the Warrants or the Exercise Price, Warrants theretofore or
thereafter issued may continue to express the same number and kind of Warrant
Shares as are stated in the Warrants initially issuable from time to time
pursuant to this Agreement, all subject to further adjustment as provided
herein.
SECTION 13. Fractional Interest. The Company shall not be required to
issue fractional shares of Common Stock on the exercise of Warrants. If more
than one Warrant shall be presented for exercise in full at the same time by the
same Holder, the number of full Warrant Shares which shall be issuable upon such
exercise shall be computed on the basis of the aggregate number of shares of
Common Stock acquirable on exercise of the Warrants so presented. If any
fraction of a share of Common Stock would, except for the provisions of this
Section 13, be issuable on the exercise of any Warrant (or specified portion
thereof), the Company shall (i) direct and deposit with the Transfer Agent an
amount sufficient to pay an amount in cash calculated by it to equal the then
current Fair Market Value per share multiplied by such fraction computed to the
nearest whole cent and (ii) deliver to the Transfer Agent a written certificate
of an officer of the Company setting forth the then current Fair Market Value
per share which certificate shall be conclusive evidence of the correctness of
the matters set forth therein, absent clear error. The Holders, by their
acceptance of the Warrant Certificates, expressly waive any and all rights to
receive any fraction of a share of Common Stock or a stock certificate
representing a fraction of a share of Common Stock.
SECTION 14. Notices to Warrantholders. (a) Upon any adjustment of the
Exercise Price or number of Warrant Shares issuable pursuant to Section 11
hereof, the Company shall as promptly as practicable (x) give a written
certificate of the Company to the Warrant Agent of such adjustment or
adjustments which certificate shall set forth (i) the number of Warrant Shares
issuable upon the exercise of a Warrant and the Exercise Price after such
adjustment, (ii) a brief statement of the facts requiring such adjustment, (iii)
the computation by which such adjustment was made, and (y) cause to be given to
each of the registered Holders of the Warrant Certificates at his address
appearing on the Register written notice of such adjustments by first-class
mail, postage prepaid. The Warrant Agent shall be entitled to rely on the
above-referenced certificate(s) and shall be under no duty or responsibility
with respect to any such certificate(s), except to exhibit the same from time to
time to any Holder desiring an inspection thereof during reasonable business
hours. The Warrant Agent shall not at any time be under any duty or
responsibility to any Holder to determine whether any facts exist that may
require any adjustment of the number of Warrant Shares or other stock or
property issuable on exercise of the Warrants or the Exercise Price, or with
respect to the nature or extent of any such adjustment when made,
677106.12
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<PAGE>
or with respect to the method employed in making such adjustment or the validity
or value (or the kind or amount) of any Warrant Shares or other stock or
property which may be issuable on exercise of the Warrants. The Warrant Agent
shall not be responsible for any failure of the Company to make any cash payment
or to issue, transfer or deliver any Warrant Share or stock certificates or
other stock, securities or property upon the exercise of any Warrant.
(b) Prior to the Expiration Date, and for so long as the Warrants have
not been exercised in full, in the event of:
(i) any taking by the Company of a record of the holders of any class
of securities for the purpose of determining the holders thereof who are
entitled to receive any dividend or other distribution, or any right to
subscribe for, purchase or otherwise acquire any shares of stock of any
class or any other securities, indebtedness or property, or to receive any
other right, option or warrant; or
(ii) any capital reorganization of the Company, any reclassification
or recapitalization of the capital stock of the Company (other than a
change in par value, or from par value to no par value, or from no par
value to par value, or as a result of a subdivision or combination), any
consolidation or merger involving the Company and any other party or any
transfer of all or substantially all the assets of the Company to any other
party or any tender offer or exchange offer by the Company for shares of
Common Stock; or
(iii) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company,
then the Company shall cause to be filed with the Warrant Agent and shall cause
to be given to each Warrantholder at its address appearing on the Warrant
Register, at least twenty (20) days prior to the applicable record date
hereinafter specified, or promptly in the case of events for which there is no
record date, by first class mail, postage prepaid, a written notice stating (i)
the date as of which the holders of record of shares of Common Stock entitled to
receive any such rights, options, warrants or distributions are to be
determined, or (ii) the initial expiration date set forth in any tender offer or
exchange offer for shares of Common Stock, or (iii) the date on which any such
reclassification, consolidation, merger, conveyance, transfer, dissolution,
liquidation or winding up is expected to become effective or consummated, as
well as the date as of which it is expected that the holders of record of shares
of Common Stock shall be entitled to exchange such shares for securities or
other property, if any, deliverable upon such reclassification, consolidation,
merger, conveyance, transfer, dissolution, liquidation or winding-up. The
failure to give the notice required by this Section 14 or any defect therein
shall not affect the legality or validity of any distribution, right, option,
warrant, reclassification, consolidation, merger, conveyance, transfer,
dissolution, liquidation, winding up or action, or the vote upon any of the
foregoing.
677106.12
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<PAGE>
SECTION 15. Reservation of Warrant Shares, Etc. The Company hereby
agrees that at all times there shall be reserved for issuance and delivery upon
exercise of the Warrants, free from preemptive rights, liens, security interests
and other encumbrances, such number of shares of authorized but unissued or
treasury shares of Common Stock, or other stock or securities deliverable
pursuant to Section 11, as shall be required for issuance or delivery upon
exercise of the Warrants. Without limiting the generality of the foregoing, the
Company agrees that it will not take any action which would result in Warrant
Shares when issued not being validly and legally issued and fully paid and
nonassessable. The Company hereby represents that, as of the date hereof, it has
sufficient shares of Common Stock reserved for issuance upon exercise of all
outstanding Warrants.
SECTION 16. Warrant Agent. The Warrant Agent undertakes the duties and
obligations imposed by this Agreement upon the following terms and conditions,
by all of which the Company and the Holders, by their acceptance thereof, shall
be bound:
(a) The statements contained herein and in the Warrant Certificates
shall be taken as statements of the Company, and the Warrant Agent
assumes no responsibility for the correctness of any of the same
except such as describe the Warrant Agent or action taken or to be
taken by it. The Warrant Agent assumes no responsibility with respect
to the distribution of the Warrant Certificates or Warrant Shares or
payment or refund of the Exercise Price except as herein otherwise
provided.
(b) The Warrant Agent may consult at any time with counsel
satisfactory to it and the Warrant Agent shall incur no liability or
responsibility to the Company or to any holder of any Warrant
Certificate in respect to any action taken, suffered or omitted by it
hereunder in good faith and in accordance with the opinion or the
advice of such counsel.
(c) The Company agrees to pay to the Warrant Agent reasonable
compensation for all services rendered by the Warrant Agent in the
execution of this Agreement, to reimburse the Warrant Agent for all
expenses, taxes and governmental charges and other charges of any kind
and nature reasonably incurred by the Warrant Agent in the execution
of this Agreement and to indemnify the Warrant Agent and save it
harmless against any and all liabilities, including judgments,
reasonable costs and counsel fees, for anything done or omitted by the
Warrant Agent in the execution of this Agreement except as a result of
its negligence, bad faith or willful misconduct.
(d) The Warrant Agent shall be under no obligation to institute any
action, suit or legal proceeding or to take any other action likely to
involve expense unless the Company or one or more Holders shall
furnish the Warrant Agent with reasonable security for any costs and
expenses which may be incurred, but this provision shall
677106.12
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<PAGE>
not affect the power of the Warrant Agent to take such action as it
may consider proper, whether with or without any such security. All
rights of action under this Agreement or under any of the Warrants may
be enforced by the Warrant Agent without the possession of any of the
Warrant Certificates or the production thereof at any trial or other
proceeding relative thereto, and any such action, suit or proceeding
instituted by the Warrant Agent shall be brought in its name as
Warrant Agent and any recovery of judgment shall be for the ratable
benefit of the Holders, as the respective rights or interests may
appear.
(e) The Warrant Agent, and any stockholder, director, officer or
employee of it, may buy, sell or deal in any of the Warrants or other
securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with
or lend money to the Company or otherwise act as fully and freely as
though it were not Warrant Agent under this Agreement. Nothing herein
shall preclude the Warrant Agent from acting in any other capacity for
the Company or for any other legal entity.
(f) The Warrant Agent shall not at any time be under any duty or
responsibility to any Holder or the Company to make or cause to be
made any adjustment of the Exercise Price or number of the Warrant
Shares or other securities or property deliverable as provided in this
Agreement, or to determine whether any facts exist which may require
any of such adjustments, or with respect to the nature or extent of
any such adjustments, when made, or with respect to the method
employed in making the same. The Warrant Agent shall not be
accountable with respect to the validity or value or the kind or
amount of any Warrant Shares or of any securities or property which
may at any time be issued or delivered upon the exercise of any
Warrant or with respect to whether any such Warrant Shares or other
securities will when issued be validly issued and fully paid and
nonassessable, and makes no representation with respect thereto.
SECTION 17. Merger, Consolidation or Change of Name of Warrant Agent.
(a) Any corporation into which the Warrant Agent may be merged or with which it
may be consolidated, or any corporation resulting from any merger or
consolidation to which the Warrant Agent shall be a party, or any corporation
succeeding to the business of the Warrant Agent, shall be the successor to the
Warrant Agent hereunder without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case at the time such
successor to the Warrant Agent shall succeed to the agency created by this
Agreement, and in case at that time any of the Warrant Certificates shall have
been countersigned but not delivered, any such successor to the Warrant Agent
may adopt the countersignature of the original Warrant Agent; and in case at
that time any of the Warrant Certificates shall not have been countersigned, any
successor to the Warrant Agent may countersign such Warrant Certificates either
in the name of the predecessor Warrant Agent or in the name of the successor to
the Warrant Agent; and in all such
677106.12
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<PAGE>
cases such Warrant Certificates shall have the full force and effect provided in
the Warrant Certificates and in this Agreement.
(b) In case at any time the name of the Warrant Agent shall be changed
and at such time any of the Warrant Certificates shall have been countersigned
but not delivered, the Warrant Agent whose name has been changed may adopt the
countersignature under its prior name, and in case at that time any of the
Warrant Certificates shall not have been countersigned, the Warrant Agent may
countersign such Warrant Certificates either in its prior name or in its changed
name, and in all such cases such Warrant Certificates shall have the full force
and effect provided in the Warrant Certificates and in this Agreement.
SECTION 18. Resignation and Removal of Warrant Agent; Appointment of
Successor. (a) No resignation or removal of the Warrant Agent and no appointment
of a successor warrant agent shall become effective until the acceptance of
appointment by the successor warrant agent as provided herein. The Warrant Agent
may resign its duties and be discharged from all further duties and liability
hereunder (except liability arising as a result of the Warrant Agent's own
negligence or willful misconduct) after giving written notice to the Company.
The Company may remove the Warrant Agent upon written notice, and the Warrant
Agent shall thereupon in like manner be discharged from all further duties and
liabilities hereunder, except as aforesaid. The Warrant Agent shall, at the
Company's expense, cause to be mailed (by first class mail, postage prepaid) to
each Holder at his last address as shown on the Register a copy of said notice
of resignation or notice of removal, as the case may be. Upon such resignation
or removal, the Company shall appoint in writing a new warrant agent. If the
Company shall fail to make such appointment within a period of 30 days after it
has been notified in writing of such resignation by the resigning Warrant Agent
or after such removal, then the resigning Warrant Agent or the Holder of any
Warrant may apply to any court of competent jurisdiction for the appointment of
a new warrant agent. Any new warrant agent, whether appointed by the Company or
by such a court, shall be a corporation doing business under the laws of the
United States or any state thereof, in good standing and having a combined
capital and surplus of not less than US$50,000,000. After acceptance in writing
of such appointment by the new warrant agent, it shall be vested with the same
powers, rights, duties and responsibilities as if it had been originally named
herein as the Warrant Agent, without any further assurance, conveyance, act or
deed; but if for any reason it shall be necessary or expedient to execute and
deliver any further assurance, conveyance, act or deed, the same shall be done
at the expense of the Company and shall be legally and validly executed and
delivered by the resigning or removed Warrant Agent. Not later than the
effective date of any such appointment, the Company shall give notice thereof to
the resigning or removed Warrant Agent. Failure to give any notice provided for
in this Section 18(a), however, or any defect therein, shall not affect the
legality or validity of the resignation of the Warrant Agent or the appointment
of a new warrant agent, as the case may be.
(b) Any corporation into which the Warrant Agent or any new warrant
agent may be merged shall be a successor Warrant Agent under this Agreement
without any further act.
677106.12
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Any such successor Warrant Agent shall, at the Warrant Agent's expense, promptly
cause notice of its succession as Warrant Agent to be mailed (by first class
mail, postage prepaid) to each Holder at such Holder's last address as shown on
the Register.
SECTION 19. Money and Other Property Deposited with the Warrant Agent.
Any money, securities and other property which at any time shall be deposited by
the Company or on its behalf with the Warrant Agent pursuant to this Agreement
shall be and are hereby assigned, transferred and set over to the Warrant Agent
in trust for the purpose for which such moneys, securities or other property
shall have been deposited, which such purpose shall be stated in writing in
reasonable detail and delivered to the Warrant Agent; but such moneys,
securities or other property need not be segregated from other funds, securities
or other property of the Warrant Agent except to the extent required by law. The
Warrant Agent shall distribute any money deposited with it for payment and
distribution to any Holder by mailing by first-class mail a check in such amount
as is appropriate to such Holder at the address shown on the Register, or as it
may be otherwise directed in writing by such Holder, upon surrender of such
Holder's Warrants. Any money or other property deposited with the Warrant Agent
for payment and distribution to any Holder that remains unclaimed for two years,
less one day after the date the money was deposited with the Warrant Agent,
shall be paid to the Company upon its request therefor.
SECTION 20. Compliance with Government Regulations; Qualification
under the Securities Laws.
(a) The Company covenants that if the shares of Common Stock required
to be reserved for purposes of exercise of Warrants require, under any
federal or state law, registration with or approval of any
governmental authority before such shares may be issued upon exercise
or to allow the resale or transfer of the Warrants or of such shares
by the Holders generally, the Company will, unless the Company has
received an opinion of counsel to the effect that such registration is
not then permitted by such laws, use reasonable best efforts to cause
such shares to be duly so registered or approved, as the case may be;
provided that in no event shall such shares of Common Stock be issued,
and the exercise of all Warrants shall be suspended, for the period
during which any such registration or approval is required for the
issuance of such shares upon exercise but not in effect; provided,
further, that the Expiration Date shall be extended one day for each
day (or portion thereof) that any such suspension is in effect. The
Company shall promptly notify the Warrant Agent of any such
suspension, and the Warrant Agent shall have no duty, responsibility
or liability in respect of any shares of Common Stock issued or
delivered prior to its receipt of such notice. The Company shall
promptly notify the Warrant Agent of the termination of any such
suspension, and such notice shall set forth the number of days that
the Exercise Period shall be extended as a result of such suspension.
The foregoing provisions of this Section 20 shall not require that the
Company effect or obtain any such registration or approval of the
Warrants
677106.12
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or Warrant Shares in order to allow the resale or transfer thereof by
any Person that may be an underwriter for purposes of Section 1145 of
Chapter 11, Title 11 of the United States Code or to whom such
registration or approval requirement is applicable as a result of that
Person being an Affiliate of the Company or Marvel.
(b) The Company covenants that it shall, until the expiration of one
year after the Expiration Date, make available adequate current public
information with respect to the Company so as to satisfy paragraph (c)
of Rule 144 under the Securities Act.
(c) The Company covenants that it shall use reasonable best efforts to
have the Warrants and the Common Stock listed on the New York Stock
Exchange or the American Stock Exchange, subject to official notice of
issuance and subject to satisfaction of the Warrants with listing
requirements, as soon as practicable after the date hereof.
SECTION 21. Notices. (a) Any notice pursuant to this Agreement to be
given by the Warrant Agent or by any Holder to the Company shall be deemed given
(x) if delivered personally, then at the time of delivery, (y) if sent by
overnight courier service, then at the time of delivery, or (z) if mailed by
first-class, certified or overnight mail, five (5) Business Days after having
been deposited in the mail with postage prepaid, in each case addressed (until
another address is filed in writing by the Company with the Warrant Agent), as
follows:
Marvel Enterprises, Inc.
685 Third Avenue
New York, New York 10017
Facsimile No.: 212-682-5272
Telephone: 212-588-5100
Attention: Corporate Secretary
(b) In case the Company shall fail to maintain such office or agency
or shall fail to give such notice of the location or of any change in the
location thereof, presentations may be made and notices and demands may be
served at the principal office of the Warrant Agent.
(c) Any notice pursuant to this Agreement to be given by the Company
or by any Holder to the Warrant Agent shall be deemed given (x) if delivered
personally, then at the time of delivery, (y) if sent by overnight courier
service, then at the time of delivery, or (z) if mailed by first-class,
certified or overnight mail, five (5) Business Days after having been deposited
in the mail with postage prepaid, in each case addressed (until another address
is filed in writing by the Warrant Agent with the Company) as follows:
677106.12
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<PAGE>
American Stock Transfer & Trust Company
40 Wall Street
New York, NY 10005
(d) Any notice pursuant to this Agreement to be given by the Company
or by the Warrant Agent to any Holder shall be deemed given (x) if delivered
personally, then at the time of delivery, (y) if sent by overnight courier
service, then at the time of delivery, or (z) if mailed by first-class,
certified or overnight mail, five (5) Business Days after having been deposited
in the mail with postage prepaid, in each case addressed to the Holder at such
Holder's address as shown on the Register. Failure to mail a notice or
communication to a Holder or any defect in it shall not affect its sufficiency
with respect to other Holders.
(e) If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it.
(f) If the Company mails a notice or communication to a Holder or
Holders, it shall deliver a copy of such notice to the Warrant Agent at the same
time.
SECTION 22. Supplements and Amendments. The Company and the Warrant
Agent may from time to time supplement or amend this Agreement without the
approval of any Holders in order to cure any ambiguity or to correct or
supplement any provision contained herein which may be defective or inconsistent
with any other provision herein, or to make any other provisions in regard to
matters or questions arising hereunder which the Company and the Warrant Agent
may deem necessary or desirable and which shall not in any way adversely affect
the interests of the Holders. Any amendment or supplement to this Agreement that
has an adverse effect on the interests of Holders, including supplements or
amendments referred to in the first sentence of this Section 22, shall require
the written consent of Holders representing a majority of the then outstanding
Warrants. The consent of each Holder affected shall be required for any
amendment pursuant to which the Exercise Price would be increased or the number
of Warrant Shares purchasable upon exercise of Warrants would be decreased.
SECTION 23. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Warrant Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
SECTION 24. Termination. This Agreement (other than the Company's
obligations with respect to Warrants previously exercised and with respect to
indemnification under Section 16(c)) shall terminate at 5:00 p.m., New York City
time, on the Expiration Date.
SECTION 25. Governing Law. This Agreement and each Warrant Certificate
issued hereunder shall be governed by and construed in accordance with the laws
of the State of Delaware.
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SECTION 26. Benefits of This Agreement. (a) Nothing in this Agreement
shall be construed to give any person other than the Company, the Warrant Agent
and the Warrantholders (or other respective successors or assigns) any legal or
equitable right, remedy or claim under this Agreement. This Agreement shall be
for the sole and exclusive benefit of the Company, the Warrant Agent and the
Warrantholders (and other respective successors or assigns).
(b) Prior to the exercise of the Warrants, no Holder as such, shall be
entitled to any rights of a stockholder of the Company, including, without
limitation, the right to receive dividends or subscription rights, the right to
vote, to consent, to exercise any preemptive right, to receive any notice of
meetings of stockholders for the election of directors of the Company or any
other matter or to receive any notice of any proceedings of the Company, except
as may be specifically provided for herein. No provisions hereof, in the absence
of affirmative action by the Warrantholder hereof to purchase Warrant Shares,
and no enumeration herein of the rights or privileges of the Warrantholder shall
give rise to any liability of such Warrantholder as a stockholder of the
Company.
(c) All rights of action in respect of this Agreement are vested in
the Holders, and any Holder without the consent of the Warrant Agent or the
Holder, may, on such Holder's own behalf and for such Holder's own benefit,
enforce, and may institute and maintain any suit, action or proceeding against
the Company suitable to enforce, or otherwise in respect of, such Holder's
rights hereunder, including the right to exercise, exchange or surrender for
purchase such Holder's Warrants in the manner provided in this Agreement.
SECTION 27. Counterparts. This Agreement may be executed in any number
of counterparts and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall together constitute but one
and the same instrument.
SECTION 28. Headings. The headings of the Sections of this Agreement
have been inserted for convenience of reference only, are not to be considered a
part hereof and shall in no way modify or restrict any of the terms or
provisions hereof.
SECTION 29. Severability. Any term or provision of this Agreement or
the Warrants which is invalid or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the other terms and
provisions of this Agreement or the Warrants or affecting the validity or
enforceability of any of the terms or provisions of this Agreement or the
Warrants in any other jurisdiction.
677106.12
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, as of the day and year first above written.
MARVEL ENTERPRISES, INC.
By: /s/ WILLIAM H. HARDIE, III
----------------------------------
Name: William H. Hardie, III
Title: Executive Vice President, Business
Affairs
AMERICAN STOCK TRANSFER & TRUST
COMPANY
By: /s/ HERBERT J. LEMMER
----------------------------------
Name: Herbert J. Lemmer
Title: Vice President
677106.12
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EXHIBIT A
EXERCISABLE ON OR BEFORE 5:00 P.M. NEW YORK CITY TIME ON
-----------------.
No.__________ Cusip No. _____________
_____________ Warrants
[Form of Plan Warrant Certificate]
MARVEL ENTERPRISES, INC.
(Incorporated under the laws of the State of Delaware)
This Warrant Certificate certifies that _________ or its registered
assigns, is the registered holder of Warrants expiring __________ (the
"Warrants") to purchase shares of Common Stock (the "Common Stock"), of Marvel
Enterprises, Inc., a Delaware corporation (the "Company"). Each Warrant entitles
the registered holder upon exercise at any time during normal business hours
after the date hereof and on or before 5:00 p.m., New York City time, on
_______________, to receive from the Company _________ fully paid and
nonassessable shares of Common Stock (each such share a "Warrant Share") at the
initial exercise price (the "Exercise Price") of $17.25 per share payable in
accordance with the terms, provisions and conditions of the Warrant Agreement
referred to on the reverse hereof upon surrender of this Warrant Certificate and
payment of the Exercise Price at the office or agency of the Warrant Agent, but
only subject to the terms, provisions and conditions set forth herein and in the
Warrant Agreement. The Exercise Price and number of Warrant Shares issuable upon
exercise of the Warrants are subject to adjustment from time to time upon the
occurrence of certain events set forth in the Warrant Agreement.
No Warrant may be exercised after 5:00 p.m., New York City time, on
___________ and, to the extent not exercised by such time, such Warrants shall
become void.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on the reverse hereof and such further provisions shall
for all purposes have the same effect as though fully set forth at this place.
The terms of this Warrant Certificate are qualified in their entirety
by reference to the Warrant Agreement and, in the event of a conflict between
the terms of this Warrant Certificate and the terms of the Warrant Agreement,
the terms of the Warrant Agreement shall
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control the rights, interests and obligations of the holders of the Warrants,
the Warrant Agent and the Company with respect to the Warrants.
This Warrant Certificate shall not be valid unless countersigned by
the Warrant Agent, as such term is used in the Warrant Agreement.
This Warrant Certificate shall be governed by and construed in
accordance with the laws of the State of Delaware.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be signed by a duly authorized Officer.
Dated:
MARVEL ENTERPRISES, INC.
By______________________________________
Name:
Title:
Countersigned:
AMERICAN STOCK TRANSFER & TRUST COMPANY,
as Warrant Agent
By________________________________________
Authorized Signature
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[REVERSE SIDE]
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants expiring on the Expiration Date entitling the
holder on exercise to receive shares of Common Stock of the Company and are
issued or to be issued pursuant to a Warrant Agreement dated as of _______, 1998
(the "Warrant Agreement"), duly executed and delivered by the Company to
American Stock Transfer & Trust Company, as Warrant Agent (the "Warrant Agent"),
which Warrant Agreement is hereby incorporated by reference in and made a part
of this instrument and is hereby referred to for a description of the rights,
limitation of rights, obligations, duties and immunities thereunder of the
Warrant Agent, the Company and the holders (the words "holders" or "holder"
meaning the registered holders or registered holders) of the Warrants. A copy of
the Warrant Agreement may be obtained by the holder hereof upon written request
to the Company. By accepting initial delivery, transfer or exchange of this
Warrant, the duly registered holder shall be deemed to have agreed to the terms
of the Warrant Agreement as it may be in effect from time to time, including any
amendments or supplements duly adopted in accordance therewith.
Payment of the Exercise Price may be made, at the option of the
holder, in cash by wire transfer or by certified or official bank check payable
to the order of the Company in immediately available funds in lawful money of
the United States of America.
Upon due presentation for registration of transfer of this Warrant
Certificate, with or without other Warrant Certificates, at the office of the
Warrant Agent, a new Warrant Certificate or Warrant Certificates of like tenor
and evidencing in the aggregate a like number of Warrants shall be issued to the
transferee(s) in exchange for this Warrant Certificate, with or without other
Warrant Certificates, subject to the limitations provided in the Warrant
Agreement, without charge except for any tax or other governmental charge
imposed in connection therewith.
The Company and the Warrant Agent may deem and treat the registered
holder(s) thereof as the absolute owner(s) of this Warrant Certificate
(notwithstanding any notation of ownership or other writing hereon made by
anyone), for the purpose of any exercise hereof, of any distribution to the
holder(s) hereof, and for all other purposes. Neither the Warrants nor this
Warrant Certificate entities any holder hereof to any rights of a stockholder of
the Company.
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SUBSCRIPTION FORM
(To be executed only upon exercise of Warrants represented by this
Warrant Certificate)
To: American Stock Transfer & Trust Company,
as Warrant Agent
40 Wall Street
New York, New York 10005
The undersigned hereby irrevocably exercises [_____________] of the
Warrants represented by this Warrant Certificate and herewith makes payment in
accordance with the terms and conditions specified in this Warrant Certificate
and in the Warrant Agreement and surrenders this Warrant Certificate and all
right, title and interest therein to and directs that the shares of Common Stock
of Marvel Enterprises, Inc. (the "Warrant Shares") deliverable upon the exercise
of such Warrants be registered or placed in the name and at the address
specified below and delivered thereto.
Dated:
---------------------------------------
(Signature of Owner)
---------------------------------------
(Street Address)
---------------------------------------
(City) (State) (Zip Code)
Signature Guaranteed By:
---------------------------------------
Securities and/or check or other property (including, if such number of Warrants
exercised shall not be all of the Warrants evidenced by this Warrant
Certificate, a new Warrant Certificate for the balance remaining of such
Warrants) to be issued or delivered to:
Name:
Street Address:
City, State and Zip Code:
Please insert social security or identifying number:
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FORM OF ASSIGNMENT
For value received from the Assignee(s) named below, the undersigned
registered Holder of this Warrant Certificate hereby sells, assigns, and
transfers unto the Assignee(s) named below (including the undersigned with
respect to any Warrants constituting a part of the Warrants evidenced by this
Warrant Certificate not being assigned hereby) all of the right of the
undersigned under this Warrant Certificate, with respect to the number of
Warrants set forth below:
Social Security
or other
Name of Assignee Address Identifying No. No. of Warrants
---------------- ------- ---------------- ---------------
and does hereby irrevocably constitute and appoint the undersigned's attorney to
make such transfer on the books of maintained for the purposes, with full power
of substitution in the premises.
Dated:
---------------------------------------
(Signature of Owner)
---------------------------------------
(Street Address)
---------------------------------------
(City) (State) (Zip Code)
Signature Guaranteed By:
---------------------------------------
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