Warrant Agreement [Class C] - Marvel Enterprises Inc. and American Stock Transfer & Trust Co.
CLASS C WARRANT AGREEMENT
WARRANT AGREEMENT
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 stockholders 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, the LaSalle
Claim, an Allowed Equity Interest or Allowed Class Securities Litigation Claim
(as defined in the Plan of Reorganization) evidencing Class C Warrants (the
"Warrants") to acquire, under certain circumstances, an aggregate of 7,000,000
shares of the common stock, $0.01 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 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
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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 $18.50 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:
(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)
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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.
"Independent Appraiser" means any nationally recognized
investment banking firm or accounting firm (other than any investment banking
firm or accounting firm having a
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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 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
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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 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.
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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.
(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
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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 such 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
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
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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
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
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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.
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:
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(a) Stock Dividends. If at any time after the date of the
issuance of the Warrants and prior to the Expiration Date the
Company shall pay a stock dividend or other distribution
payable in shares of Common Stock or 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, 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,
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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 Gross 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;
R = the "Gross 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
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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.
731158.6
12
<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 applicable
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
731158.6
13
<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,
731158.6
14
<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.
731158.6
15
<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
731158.6
16
<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
731158.6
17
<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.
731158.6
18
<PAGE>
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 is 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
731158.6
19
<PAGE>
approval of the Warrants 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:
731158.6
20
<PAGE>
American Stock Transfer & Trust Company
40 Wall Street
New York, New York 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.
731158.6
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<PAGE>
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.
731158.6
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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:
Title:
731158.6
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<PAGE>
EXHIBIT A
EXERCISABLE ON OR BEFORE 5:00 P.M. NEW YORK CITY TIME ON
-----------------.
Class C No. Cusip No.
Class C, Warrants
[Form of Class C 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 Class C 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 $18.50 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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<PAGE>
[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 Class C 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 Class C 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 Class C
Warrants exercised shall not be all of the Class C Warrants evidenced by this
Warrant Certificate, a new Warrant Certificate for the balance remaining of such
Class C 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 Class C Warrants constituting a part of the Class C 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 Class C 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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