Warrant Agreement - Marvel Enterprises Inc. and HSBC Securities (USA) Inc.
EXECUTION COPY
WARRANT AGREEMENT
between
MARVEL ENTERPRISES, INC.
and
HSBC SECURITIES (USA), INC.
Dated as of November 30, 2001
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WARRANT AGREEMENT
WARRANT AGREEMENT, dated as of November 30, 2001 (this
"Agreement"), between Marvel Enterprises, Inc., a Delaware corporation (the
"Company"), and HSBC Securities (USA), Inc. (the "Warrant Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the terms of a Commitment Letter dated
September 28, 2001 (the "Commitment Letter"), between the Company and the
Warrant Agent (collectively with its affiliates, "HSBC"), the Company has agreed
to deliver without cost to the Warrant Agent on the date (the "Initial Funding
Date") of the initial funding under the $80,000,000 senior secured credit
facilities referred to therein (the "Credit Facilities") warrants or other
options satisfactory to the Warrant Agent for the purchase of up to 750,000
Common Shares at the market price for such shares as quoted on the New York
Stock Exchange as of the close of business one day prior to the Initial Funding
Date (each, a "Warrant" and, collectively, the "Warrants"); and
WHEREAS, the Company desires to engage the Warrant Agent to act on
the Company's behalf, and the Warrant Agent desires to act on behalf of the
Company, in connection with the issuance of the Warrant Certificates (as defined
below) and the other matters as provided herein, including, without limitation,
for the purpose of defining the terms and provisions of the Warrants and the
respective rights and obligations thereunder of the Company and the record
holders thereof (together with the holders of shares of Common Stock (or other
securities) received upon exercise thereof, the "Holders").
NOW, THEREFORE, in consideration of the foregoing and of the mutual
agreements contained herein and in the Commitment Letter, the Company and the
Warrant Agent hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
"Affiliate" of any specified Person means any other Person, directly
or indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means 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; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Auditors" means, at any time, the independent auditors of the
Company at such time.
"Board" means the board of directors of the Company from time to
time.
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"Business Day" means a day except a Saturday, Sunday or other day on
which commercial banks in The City of New York, or in the city of the corporate
trust office of the Warrant Agent, are authorized by law to close.
"Cashless Exercise" has the meaning specified in Section 3.3 hereof.
"Cashless Exercise Ratio" has the meaning specified in Section 3.3
hereof.
"Certificate for Surrender" means the form on the reverse side of
the Warrant Certificate substantially in the form of Exhibit A hereto.
"Closing Date" means the date hereof.
"Commission" means the United States Securities and Exchange
Commission.
"Common Shares" means the shares of the Common Stock of the Company.
"Common Stock" means the common stock, par value $.01 per share of
the Company, and any other capital stock of the Company into which such Common
Stock may be converted or reclassified or that may be issued in respect of, in
exchange for or in substitution of such Common Stock by reason of any stock
splits, stock dividends, distributions, mergers, consolidations or other like
events.
"Company" has the meaning specified in the recitals to this
Agreement.
"Credit Facilities" has the meaning specified in the recitals to
this Agreement.
"Current Market Value" has the meaning specified in Section 4.1(d)
hereof.
"Depositary" means The Depository Trust Company, its nominees and
their respective successors.
"Exchange Act" means the United States Securities Exchange Act of
1934, as amended.
"Exercise Date" means the date upon which a Holder exercises a
Warrant or Warrants in accordance with Section 3.2.
"Exercise Price" has the meaning specified in Section 3.1 hereof.
"Expiration Date" means the fifth anniversary of the Initial Funding
Date.
"Financial Expert" means one of the Persons listed in Appendix A
hereto.
"Holders" has the meaning specified in the recitals to this
Agreement.
"Independent Financial Expert" means a Financial Expert that does
not (and whose directors, executive officers and 5.0% stockholders do not) have
a direct or indirect financial interest in the Company or any of its
subsidiaries or Affiliates, which has not been for
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at least five years and, at the time that it is called upon to give independent
financial advice to the Company, is not (and none of its directors, executive
officers or 5.0% stockholders is) a promoter, director or officer of the Company
or any of its subsidiaries or Affiliates.
"Institutional Accredited Investor" shall mean an institution that
is an "accredited investor" as that term is defined in Rule 501(a)(1), (2), (3)
or (7) of Regulation D under the Securities Act.
"Officer" means, with respect to the Company, (i) any member of the
Board, or the Chairman, the President, the Chief Executive Officer, any Vice
President, the Chief Operating Officer or the Chief Financial Officer of the
Company, any officer of a subsidiary designated by the Board to act as such
officer of the Company or any other person duly authorized and empowered by the
Board to execute for and on behalf and in the name of the Company (any officer
or other person described in this clause (i), a "Senior Officer") and (ii) the
Treasurer, Assistant Treasurer, the Secretary or an Assistant Secretary of the
Company or any officer of a subsidiary designated by the Board to act as such
officer of the Company.
"Officers' Certificate" means a certificate signed by one Senior
Officer and one other Officer or by two Senior Officers.
"Opinion of Counsel" means a written opinion signed by legal counsel
who may be an employee of or counsel to the Company.
"Parent" means any Person of which the Company is a direct or
indirect subsidiary.
"Person" means an individual, corporation, partnership, limited
liability company, joint venture association, joint-stock company trust,
unincorporated organization, government or agency thereof.
"Private Placement Legend" means the legend set forth on the Warrant
Certificates in the form set forth in Section 2.2.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"Relevant Value" means the value of the Warrants as set forth in a
Value Report.
"Rule 144A" means Rule 144A under the Securities Act.
"Securities Act" means the United States Securities Act of 1933, as
amended.
"Subscription Form" means the form on the reverse side of the
Warrant Certificate substantially in the form of Exhibit A hereto.
"Underlying Securities" shall mean the Common Shares (or other
securities) purchasable upon exercise of the Warrants.
"Value Report" has the meaning specified in Section 4.1(k) hereof.
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"Warrant" has the meaning specified in the recitals to this
Agreement.
"Warrant Agent" has the meaning specified in the preamble to this
Agreement.
"Warrant Certificates" has the meaning specified in Section 2.1
hereof.
"Warrant Registration Rights Agreement" means the Warrant
Registration Rights Agreement relating to the Warrants, dated the date hereof,
between the Company and the Warrant Agent.
ARTICLE II
ISSUE OF WARRANTS
Section 2.1. Form of Warrant Certificates.
Certificates representing the Warrants (the "Warrant Certificates")
shall be substantially in the form attached hereto as Exhibit A, shall be dated
the date on which such Warrant Certificates are countersigned by the Warrant
Agent and shall have such insertions as are appropriate or required or permitted
by this Agreement and may have such letters, numbers or other marks of
identification and such legends 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 be
listed or any depositary, or to conform to custom or usage.
The definitive Warrant Certificates shall be typed, printed,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner permitted by the rules of any securities
exchange on which the Warrants may be listed, all as determined by the Officer
or Officers executing such Warrant Certificates, as evidenced by the execution
of such Warrant Certificates.
Section 2.2. Restrictive Legends.
Except as provided for in Section 8.2(c) hereof, the Warrant
Certificates shall bear the following legend on the face thereof:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE
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SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (3) TO AN
INSTITUTIONAL ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM THE
REGISTRATION REQUIREMENTS UNDER REGULATION D UNDER THE SECURITIES ACT, (4)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
OR (5) PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, IN EACH CASE, IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES.
Section 2.3. Execution and Delivery of Warrant Certificates.
Warrant Certificates may be executed, on or after the date of this
Agreement, by the Company and delivered to the Warrant Agent for
countersignature, and the Warrant Agent shall thereupon countersign and deliver
such Warrant Certificates upon the order and at the written direction of the
Company signed by one or more Senior Officers to the purchasers thereof on the
date of issuance. The Warrant Agent is hereby authorized to countersign and
deliver Warrant Certificates as required by this Section 2.3 or by Section 3.3,
Article VI or Article VIII hereof. In consideration for the initial funding
under the Credit Facilities, Warrant Certificates for 750,000 shares shall be
executed and delivered to the Warrant Agent on the date hereof.
The Warrant Certificates shall be executed on behalf of the Company
by one or more Senior Officers of the Company either manually or by facsimile
signature printed thereon. The Warrant Certificates shall be countersigned by
manual signature of the Warrant Agent and shall not be valid for any purpose
unless so countersigned. In case any Senior Officer of the Company whose
signature shall have been placed upon any of the Warrant Certificates shall
cease to be such Senior Officer of the Company before countersignature by the
Warrant Agent and the issuance and delivery thereof, such Warrant Certificates
may nevertheless be countersigned by the Warrant Agent and issued and delivered
with the same force and effect as though such person had not ceased to be such
Senior Officer of the Company.
ARTICLE III
EXERCISE PRICE, EXERCISE AND REPURCHASE OF WARRANTS
Section 3.1. Exercise Price.
Each Warrant Certificate shall, when countersigned by the Warrant
Agent, initially entitle the Holder thereof, subject to the provisions of this
Agreement, to purchase the number of Common Shares indicated thereon at a per
share purchase price (the "Exercise Price") equal to $3.62, subject to
adjustment as provided in Section 4.1 and Article V hereof.
Section 3.2. Exercise; Restrictions on Exercise.
At any time prior to 5:00 p.m. (New York City time) on the
Expiration Date, any outstanding Warrants may be exercised on any Business Day;
provided that Holders of Warrants
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will be able to exercise their Warrants only if a registration statement
relating to the Common Shares (or other securities) issuable upon exercise of
the Warrants is then effective and available, or the exercise of such Warrants
is exempt from the registration requirements of the Securities Act, as
reasonably determined by the Company, and such securities are qualified for sale
or exempt from qualification under the applicable securities laws of the states
or other jurisdictions in which such Holders reside. Any Warrants not exercised
by 5:00 p.m., New York City time, on the Expiration Date shall expire and all
rights of the Holders of such Warrants shall terminate. Additionally, pursuant
to Section 4.1(h)(ii) hereof, the Warrants shall expire and all rights of the
Holders of such Warrants shall terminate in the event the Company merges or
consolidates with or sells all or substantially all of its property and assets
to a Person (other than an Affiliate of the Company) if the consideration
payable to holders of Common Stock in exchange for their Common Stock in
connection with such merger, consolidation or sale consists solely of cash or in
the event of the dissolution, liquidation or winding up of the Company.
Section 3.3. Method of Exercise; Payment of Exercise Price.
In order to exercise all or any of the Warrants represented by a
Warrant Certificate, the Holder thereof must surrender for exercise the Warrant
Certificate to the Warrant Agent at its corporate trust office address set forth
in Section 12.5 hereof, with the Subscription Form set forth on the reverse of
the Warrant Certificate duly executed, together with payment in full of the
Exercise Price then in effect for each Common Share (or other securities)
purchasable upon exercise of the Warrants as to which a Warrant is exercised;
such payment may be made (i) in cash or by certified or official bank check
payable to the order of the Company or by wire transfer of immediately available
funds to an account designated by the Company for such purpose, (ii) without the
payment of cash (a "Cashless Exercise"), by reducing the number of shares of
Common Stock that would be obtainable upon the exercise of a Warrant and payment
of the Exercise Price in cash so as to yield a number of shares of Common Stock
upon the exercise of such Warrant equal to the product of (a) the number of
shares of Common Stock for which such Warrant is exercisable as of the date of
exercise (if the Exercise Price were being paid in cash) and (b) the Cashless
Exercise Ratio, or (iii) a combination of (i) and (ii). Any payment made
pursuant to clause (i) of the preceding sentence shall be made in care of the
Warrant Agent at its corporate trust office address set forth in Section 12.5
hereof prior to the close of business on the date the Warrant Certificate is
surrendered to the Warrant Agent for exercise. All payments received upon
exercise of Warrants shall be delivered to the Company by the Warrant Agent as
instructed in writing by the Company. The Warrant Agent shall transmit the
entire amount that it has received, without any deduction of any wire, cable,
service or other charges.
The "Cashless Exercise Ratio" shall equal a fraction, the numerator
of which is the excess of the Current Market Value per share of Common Stock on
the Exercise Date over the Exercise Price per share as of the Exercise Date and
the denominator of which is the Current Market Price per share of the Common
Stock on the Exercise Date. Upon surrender of a Warrant Certificate representing
more than one Warrant in connection with the Holder's option to elect a Cashless
Exercise, the number of shares of Common Stock deliverable upon a Cashless
Exercise shall be equal to the number of shares of Common Stock issuable upon
the exercise of Warrants that the Holder specifies are to be exercised pursuant
to a Cashless Exercise multiplied by the Cashless Exercise Ratio. All provisions
of the Warrant Agreement shall be applicable with
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respect to a surrender of a Warrant Certificate pursuant to a Cashless Exercise
for less than the full number of Warrants represented thereby.
If less than all the Warrants represented by a Warrant Certificate
are exercised, such Warrant Certificate shall be surrendered and a new Warrant
Certificate of the same tenor and for the number of Warrants which were not
exercised shall be executed by the Company and delivered to the Warrant Agent
and the Warrant Agent shall countersign the new Warrant Certificate, registered
in such name or names as may be directed in writing by the Holder, and shall
deliver the new Warrant Certificate to the Person or Persons entitled to receive
the same; provided that such Holder (x) shall be responsible for the payment of
any transfer taxes required as a result of any change in ownership of such
Warrants and (y) must comply with Article VIII, and any other provision of this
Agreement relating to transfer, with respect to any such requested registration
or delivery involving such a change in ownership. Upon the exercise of any
Warrants following the surrender of a Warrant Certificate in conformity with the
foregoing provisions, the Warrant Agent shall cause the Company to transfer
promptly to the Holder or, upon the written order of the Holder of such Warrant
Certificate, appropriate evidence of ownership of any Common Shares or other
securities or property to which the Holder is entitled as a result of exercise,
registered or otherwise placed in such name or names as may be directed in
writing by the Holder, and to deliver such evidence of ownership to the Person
or Persons entitled to receive the same, and, at the Company's option, an amount
in cash, in lieu of any fractional shares, as provided in Section 4.5 hereof;
provided that the Holder of such Warrant (x) shall be responsible for the
payment of any transfer taxes required as the result of any change in ownership
of such Warrants or the issuance of such Common Shares other than to the Holder
of such Warrants and (y) must comply with Article VIII, and any other provision
of this Agreement relating to transfer, with respect to any such requested
registration or delivery involving such a change in ownership.
Upon the exercise of a Warrant or Warrants, the Company shall as
promptly as practicable but not later than 14 Business Days after such exercise
enter, or cause any transfer agent of the Common Shares to enter, the name of
the person entitled to receive the Common Shares upon exercise of such Warrants
into the Company's register of stockholders. Thereupon, the Company or the
applicable transfer agent shall issue certificates (bearing the legend set forth
in Section 12.10 hereof, if applicable, unless a registration statement with the
Commission relating to such Common Shares shall then be in effect or the Company
and the Holder exercising such Warrants otherwise agree) for the necessary
number of Common Shares to which said Holder is entitled and deliver such
certificate to the Warrant Agent who in turn will deliver it to the Person
entitled to receive the Common Shares.
A Warrant shall be deemed by the Company to be exercised immediately
prior to the close of business on the date of surrender for exercise, as
provided above, of the Warrant Certificate representing such Warrant and, for
all purposes under this Agreement, the Person entitled to receive any Common
Shares upon such exercise shall receive the Common Shares such person would have
been entitled to had it been the registered holder on such date, except for
purposes of transferring the Common Shares or voting in a general stockholders'
meeting, such Person shall, in its relation with the Company, be deemed to be
the holder thereof only when such Common Shares are entered in the register of
stockholders in the name of such person; provided, however, that, with respect
to Warrants which have been exercised but for which the
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corresponding Common Shares have not been recorded in the register of
stockholders, the provisions of Article IV shall continue to apply as if the
number of Warrants held prior to exercise remained outstanding on the date of
any action or event of the type giving rise to an adjustment under Article IV.
ARTICLE IV
ADJUSTMENTS
Section 4.1. Adjustments.
The Exercise Price and the number of Common Shares (or other
securities) purchasable upon exercise of each Warrant shall be subject to
adjustment from time to time as follows (subject in each case to Section 4.1(j)
hereof):
(a) Divisions; Combinations, Reclassifications. In case the Company
shall, on or before the Expiration Date, (i) issue any Common Shares or other
capital stock of the Company in payment of a dividend or other distribution with
respect to its Common Shares, (ii) subdivide its issued and outstanding Common
Shares, (iii) combine its issued and outstanding Common Shares into a smaller
number of shares, (iv) reclassify or convert the Common Shares (other than a
reclassification in connection with a merger, consolidation or other business
combination which will be governed by Section 4.1(h)) or (v) distribute to all
holders of its Common Shares any of the Company's assets, debt securities or any
options, warrants or rights to purchase securities, then the number of Common
Shares purchasable upon exercise of each Warrant immediately prior to the record
date for such issue or distribution or the effective date of such subdivision,
consolidation, reclassification or conversion shall be adjusted so that the
Holder of each Warrant shall thereafter be entitled to receive the kind and
number of Common Shares which such Holder would have been entitled to receive
after the happening of any of the events described above had such Warrant been
exercised immediately prior to the happening of such event or any record date
with respect thereto. An adjustment made pursuant to this Section 4.1(a) shall
become effective immediately after the effective date of such event retroactive
to the record date, if any, for such event.
(b) Issuance of Common Shares at Lower Values. In case the Company
shall sell or issue any Common Share or Right (as defined below) (excluding any
(i) transaction covered by Section 4.1(a) above and (ii) any offering
underwritten by or a private placement arranged by, an investment bank of
national standing) at an offering price per share that (together with the
exercise price per share, if any) is lower than the Current Market Value per
Common Share in effect immediately prior to such sale or issuance, then the
number of Common Shares thereafter purchasable upon the exercise of each Warrant
shall be determined by multiplying the number of Common Shares theretofore
purchasable upon exercise of such Warrant by a fraction, the numerator of which
shall be the number of Common Shares outstanding immediately after such sale or
issuance and the denominator of which shall be the number of Common Shares
outstanding immediately prior to such sale or issuance plus the number of Common
Shares which the aggregate consideration received (determined as provided below)
for such sale or issuance would purchase at such Current Market Value per Common
Share. For purposes of the
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calculation provided for in this Section 4.1(b), the Common Shares which the
holder of any such Right shall be entitled to subscribe for or purchase shall be
deemed to be issued and outstanding as of the date of such sale and issuance of
such Right and the consideration received by the Company therefor shall be
deemed to be the consideration received by the Company for such Right, plus the
consideration or premiums stated in such Right to be paid for the Common Shares
covered thereby. In case the Company shall sell and issue any Right together
with one or more other securities as part of a unit at a price per unit, then in
determining the "price per Common Share" and the "consideration received by the
Company" for purposes of this Section 4.1(b), the Board shall determine, in good
faith, the fair value of the Right then being sold as part of such unit. If the
Warrant Agent, or any Holder of at least 7,500 Warrants disputes such
determination, the Independent Financial Expert shall make such determination
pursuant to Section 4(i) hereof. For purposes of this paragraph, a "Right" shall
mean any right, option, warrant or convertible or exchangeable security
containing the right to subscribe for or acquire one or more Common Shares.
(c) Expiration of Rights, Options and Conversion Privileges. Upon
the redemption, repurchase, expiration or termination of any Rights, the
issuance of which have previously resulted in an adjustment hereunder, if any
thereof shall not have been exercised, exchanged or converted, the Exercise
Price and the number of Common Shares purchasable upon the exercise of each
Warrant shall, upon such expiration, be readjusted and shall thereafter, upon
any future exercise, be such as they would have been had they been originally
adjusted (or had the original adjustment not been required, as the case may be)
as if (i) the only Common Shares so issued were the Common Shares, if any,
actually issued or sold upon the exercise, exchange or conversion of such Rights
and (ii) such Common Shares, if any, were issued or sold for the consideration
actually received by the Company upon such exercise, exchange or conversion plus
the consideration, if any, actually received by the Company for issuance, sale
or grant of all such Rights whether or not exercised.
(d) Current Market Value. For the purposes of any computation under
this Agreement, the "Current Market Value" per Common Share or of any other
security (herein collectively referred to as a "security") at any date herein
specified shall be:
(i) if the security is registered under the Exchange Act, the
average of the daily closing sale prices (or the equivalent in an
over-the-counter market) for the security, on the stock exchange or over
the counter market that is the primary trading market for the security,
for the 20 consecutive trading days immediately preceding such date or, if
the security has been registered under the Exchange Act for less than 20
days trading days before such date, then the average of the daily closing
sale prices (or such equivalent) for all of the trading days before such
date for which closing sale prices (or such equivalent) are available or
(ii) if the security is not registered under the Exchange Act, (a)
the value of the security, determined in good faith by the Board and
certified by a board resolution, based on the most recently completed
arm's-length transaction between the Company and a Person other than an
Affiliate of the Company, the closing of which occurred on such date or
within the six-month period preceding such date, or (b) if no such
transaction shall have occurred on such date or within such six-month
period, the value of the
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security as determined by an Independent Financial Expert, in each case,
without giving effect to any discount for lack of liquidity, the fact that
the Company has no class of equity securities registered under the
Exchange Act or the fact that the security issuable upon exercise of the
Warrants represent a minority in the Company but which may give effect to
the value of any rights, preferences or privileges of any security other
than Common Stock.
(e) Consideration Received. For purposes of any computation
respecting consideration received pursuant to this Section 4.1, the following
shall apply:
(i) in the case of the issuance of Common Shares for cash, the
consideration shall be the amount of such cash;
(ii) in the case of the issuance of Common Shares for a
consideration in whole or in part other than cash, the consideration other
than cash shall be deemed to be the fair market value thereof as
determined in good faith by the Board (irrespective of the accounting
treatment thereof), whose determination shall be conclusive and described
in reasonable detail in a board resolution which shall be provided as soon
as practicable thereafter to the Warrant Agent; and
(iii) in the case of the issuance of Rights, the aggregate
consideration received therefor shall be deemed to be the consideration
received by the Company for the issuance of such Rights, plus the
additional minimum consideration, if any, to be received by the Company
upon the exercise, conversion or exchange thereof (the consideration in
each case to be determined in the same manner as provided in clauses (i)
and (ii) of this Section 4.1(e));
provided that in no case shall any deduction be made for any commissions,
discounts or other expenses incurred by the Company for any underwriting of the
issue or otherwise in connection therewith.
(f) De Minimus Adjustments. No adjustment in the number of Common
Shares (or other securities) purchasable hereunder or in the Exercise Price
shall be required unless such adjustment would require an increase or decrease
of at least one percent (1%) in the number of Common Shares (or other
securities) purchasable upon the exercise of each Warrant or in the Exercise
Price; provided, however, that any adjustments which by reason of this Section
4.1(f) are not required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations shall be made to the
nearest one-thousandth of a share.
(g) Adjustment of Exercise Price. (i) Whenever the number of Common
Shares purchasable upon the exercise of each Warrant is adjusted, as herein
provided, the Exercise Price per Common Share payable upon exercise of such
Warrant shall be adjusted (calculated to the nearest $.01) so that it shall
equal the price determined by multiplying such Exercise Price immediately prior
to such adjustment by a fraction the numerator of which shall be the number of
Common Shares purchasable upon the exercise of each Warrant immediately prior to
such adjustment and the denominator of which shall be the number of Common
Shares so purchasable immediately thereafter.
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(ii) Following any adjustment to the Exercise Price pursuant to this
Article IV, the Adjusted Exercise Price shall never be less than an amount
(such amount per Common Share, the "Minimum Price") equal to the par value
per Common Share at the time of such adjustment, except to the extent
permitted by applicable law. "Adjusted Exercise Price" means the Exercise
Price payable per Common Share, when adjusted pursuant to this Article IV.
(iii) If, following any adjustment to the Exercise Price pursuant to
this Article IV, the Minimum Price is payable at the time of exercise by
Holders, and but for the provisions of the preceding clause (ii), the
Adjusted Exercise Price would (except to the extent permitted by
applicable law) equal an amount that is less than the Minimum Price at the
time of such adjustment (such lesser amount, the "Sub-Par Price"), the
Company will take such action that the Board may in good faith determine
is fair and appropriate to protect the rights of the Holders against
dilution or other impairment as contemplated by this Article IV; provided,
however, that no such action shall cause the aggregate amount payable per
Warrant, after giving effect to this clause (iii) (and taking into account
any payments to be received hereunder) to be greater than the aggregate
amount payable per Warrant which would have been payable but for the
preceding clause (ii). Such action may include, without limitation:
(A) payment to the Holder of each Warrant of liquidated
damages per Common Share purchasable upon Exercise equal to the
Minimum Price less the Sub-Par Price; or
(B) reduction, if permitted by applicable law, of the par
value per Common Share.
Any such payment shall be made or any other such action shall be
consummated not later than the earlier of (a) 180 days following the
consummation of the transaction giving rise to such adjustment and (b)
with respect to each Warrant, on the date such Warrant is exercised. If
such transaction is annulled, rescinded, revoked, or reversed or otherwise
canceled, or any subsequent adjustment is made pursuant to this Article IV
such that the adjusted Exercise Price is greater than or equal to the
Minimum Price (without applying the preceding clause (ii) to that or any
preceding adjustment pursuant to this Article IV), then (x) in the case of
such a payment, if such payment has not yet been made to a Holder by the
Company (or by any agent of the Company, including for this purpose the
Warrant Agent), such payment may be annulled, rescinded, revoked or
otherwise canceled and any deposit made in respect thereof returned to the
Company and (y) in the case of any such other action, such other action
may be annulled, rescinded, revoked, reversed or otherwise canceled.
(iv) If after an adjustment, a Holder of a Warrant upon exercise of
it may receive shares of two or more classes in the capital of the
Company, the Company shall determine the allocation of the adjusted
Exercise Price between such classes of shares in a manner that the Board
deems fair and equitable to the Holders. After such allocation, the
exercise privilege and the Exercise Price of each class of shares shall
thereafter be
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subject to adjustment on terms comparable to those applicable to Common
Shares in this Article IV.
(v) Such adjustment shall be made successively whenever any event
listed above shall occur.
(h) Consolidation, Merger, Etc. (i) Subject to the provisions of
Subsection (ii) below of this Section 4.1(h), in case of the consolidation of
the Company with, or merger of the Company with or into, or of the sale of all
or substantially all of the properties and assets of the Company to, any Person,
and in connection therewith consideration is payable to holders of Common Shares
(or other securities or property purchasable upon exercise of Warrants) in
exchange therefor, the Warrants shall remain subject to the terms and conditions
set forth in this Agreement and each Warrant shall, after such consolidation,
merger or sale, entitle the Holder to receive upon exercise the number of shares
in the capital or other securities or property (including cash) of or from the
Person resulting from such consolidation or surviving such merger or to which
such sale shall be made or of the parent of such Person, as the case may be,
that would have been distributable or payable on account of the Common Shares
(or other securities or property purchasable upon exercise of Warrants) if such
Holder's Warrants had been exercised immediately prior to such merger,
consolidation or sale (or, if applicable, the record date therefor); and in any
such case the provisions of this Agreement with respect to the rights and
interests thereafter of the Holders of Warrants shall be appropriately adjusted
by the Board in good faith so as to be applicable, as nearly as may reasonably
be, to any shares, other securities or any property thereafter deliverable on
the exercise of the Warrants.
(ii) Notwithstanding the foregoing, (x) if the Company merges or
consolidates with, or sells all or substantially all of its property and
assets to, another Person and consideration is payable to holders of
Common Shares in exchange for their Common Shares in connection with such
merger, consolidation or sale which consists solely of cash, or (y) in the
event of the dissolution, liquidation or winding up of the Company, then
the Holders of Warrants shall be entitled to receive payments or
distributions as of the date of such event on an equal basis with, and on
the same day as, holders of Common Shares (or other securities purchasable
upon exercise of the Warrants) as if the Warrants had been exercised
immediately prior to such event, less an amount equal to the Exercise
Price. Upon receipt of such payment, if any, the rights of a Holder shall
terminate and cease and such Holder's Warrants shall expire. In case of
any such merger, consolidation or sale of assets, the surviving or
acquiring Person or, in the event of any dissolution, liquidation or
winding up of the Company, the Company shall deposit promptly with the
Warrant Agent the funds or other consideration, if any, necessary to pay
the Holders of the Warrants. After receipt of such deposit from such
Person or the Company and after receipt of surrendered Warrant
Certificates, the Warrant Agent shall make payment by delivering a check
in such amount as is appropriate (or, in the case of consideration other
than cash, such other consideration as is appropriate) to such Person or
Persons as it may be directed in writing by the Holder surrendering such
Warrants.
(i) If required pursuant to Section 4.1(d)(ii) or 4(b), the Current
Market Value or "price per Common Share" or "consideration received by the
Company" shall be deemed to be equal to the value set forth in the Value Report
(as defined below) as determined by an
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Independent Financial Expert, which shall be selected by the Board in its sole
discretion, and retained on customary terms and conditions, using one or more
valuation methods that the Independent Financial Expert, in its best
professional judgment, determines to be most appropriate. The Company shall
cause the Independent Financial Expert to deliver to the Company, with a copy to
the Warrant Agent, within 90 days of the appointment of the Independent
Financial Expert, a value report (the "Value Report") stating the value of the
Common Shares and other securities or property, if any, being valued as of the
relevant date and containing a brief statement as to the nature and scope of the
examination or investigation upon which the determination of value was made. The
Warrant Agent shall have no duty with respect to the Value Report of any
Independent Financial Expert, except to keep it on file and available for
inspection by the Holders. The determination as to Current Market Value or
"price per Common Share" or "consideration received by the Company" in
accordance with the provisions of this Section 4.1(i) shall be conclusive on all
Persons. The Independent Financial Expert shall consult with management of the
Company and the Warrant Agent in order to allow such persons to comment on the
proposed value prior to delivery to the Company of any Value Report.
(j) When No Adjustment Required. Without limiting any other
exception contained in this Section 4.1, and in addition thereto, no adjustment
need be made for:
(i) grants (and exercises) of options or other rights to purchase
Common Shares or the issuance of Common Shares to directors, advisors,
employees or consultants of the Company pursuant to a stock option plan,
employee stock purchase plan, restricted stock plan or other agreement
approved by the Board; and
(ii) the issuance of Common Shares upon exercise of the Warrants or
options, warrants or other agreements or rights to purchase capital stock
of the Company entered into prior to the date of the issuance of the
Warrants or for which the issuance of which had previously been the
subject of an adjustment required by this Agreement.
(iii) the issuance of shares of capital stock or securities
convertible, exercisable or exchangeable into capital stock to financial
institutions or lessors in connection with commercial credit agreements,
equipment financings and similar transactions; provided that the Board
approves such transaction; and
(iv) the issuance of shares of capital stock or securities
convertible, exercisable or exchangeable into capital stock in connection
with the entry into a non-capital raising strategic relationship with an
unaffiliated Person or a merger, consolidation or similar transaction with
an unaffiliated business entity; provided that the Board approves such
transaction.
To the extent the Warrants become convertible into cash, no
adjustment need be made thereafter as to the cash.
Section 4.2. Notice of Adjustment.
Whenever the number of Common Shares purchasable upon the exercise
of each Warrant or the Exercise Price is adjusted or required to be adjusted, as
herein provided, the Company shall cause, so far as it is able, the Warrant
Agent promptly to mail, at the expense of
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the Company, to each Holder notice of such adjustment or adjustments and shall
deliver to the Warrant Agent a certificate of the Chief Financial Officer
setting forth the number of Common Shares purchasable upon the exercise of each
Warrant and the Exercise Price after such adjustment, setting forth a brief
statement of the facts requiring such adjustment and setting forth the
computation by which such adjustment was made. Such certificate shall be
conclusive evidence of the correctness of such adjustment except in the case of
manifest error. The Warrant Agent shall be entitled to rely on such certificate
and shall be under no duty or responsibility with respect to any such
certificate, except to exhibit the same, from time to time, to any Holder
desiring an inspection thereof during reasonable business hours upon reasonable
notice. The Warrant Agent shall not at any time be under any duty or
responsibility to any Holders to determine whether any facts exist which may
require any adjustment of the Exercise Price or the number of Common Shares
purchasable on exercise of the Warrants or any of the other adjustments set
forth in Section 4.1, or with respect to the nature or extent of any such
adjustment when made, or with respect to the method employed in making such
adjustment, or the validity or value (or the kind or amount) of any Common
Shares which may be purchasable 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 Common Shares or share certificates upon
the exercise of any Warrant.
Section 4.3. Statement on Warrants.
Irrespective of any adjustment in the Exercise Price or the number
or kind of shares purchasable upon the exercise of the Warrants, Warrants
theretofore or thereafter issued may continue to express the same price and
number and kind of shares as are stated in the Warrants initially purchasable
pursuant to this Agreement.
Section 4.4. Notice of Consolidation, Merger, Etc.
In case at any time after the date hereof and prior to 5:00 p.m.,
New York City time, on the Expiration Date, there shall be any (i) consolidation
or merger involving the Company or sale, transfer or other disposition of all or
substantially all of the Company's property, assets or business (except a merger
or other reorganization in which the Company shall be the surviving corporation
and holders of Common Shares receive no consideration in respect of their
shares) or (ii) any other transaction contemplated by Section 4.1(h)(ii) above,
then, in any one or more of such cases, the Company shall cause to be mailed to
the Warrant Agent and shall cause the Warrant Agent to mail, at the Company's
expense, to each Holder of a Warrant, at the earliest practicable time (and, in
any event, not less than 20 days before any date set for definitive action),
notice of the date on which such reorganization, sale, consolidation, merger,
dissolution, liquidation or winding up shall take place, as the case may be.
Such notice shall also set forth such facts as shall indicate the effect of such
action (to the extent such effect may be known at the date of such notice) on
the Exercise Price and the kind and amount of the Common Shares and other
securities, money and other property deliverable upon exercise of the Warrants.
Such notice shall also specify the date as of which the holders of record of the
Common Shares or other securities or property purchasable upon exercise of the
Warrants shall be entitled to exchange their shares for securities, money or
other property deliverable upon such reorganization, sale, consolidation,
merger, dissolution, liquidation or winding up, as the case may be.
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Section 4.5. Fractional Interests.
If more than one Warrant shall be presented for exercise in full at
the same time by the same Holder, the number of full Common Shares which shall
be purchasable upon such exercise thereof shall be computed on the basis of the
aggregate number of Common Shares purchasable on exercise of the Warrants so
presented. The Company shall not be required to issue fractional Common Shares
upon the exercise of Warrants. If any fraction of a Common Share would, except
for the provisions of this Section 4.5, be purchasable on the exercise of any
Warrant (or specified portion thereof), the Company may (i) pay an amount in
cash, subject to the terms of its debt agreements, calculated by it to be equal
to the then Current Market Value per Common Share multiplied by such fraction
computed to the nearest whole cent or (ii) deliver a whole Common Share.
Section 4.6. When Issuance or Payment May Be Deferred.
In any case in which this Article IV shall require that an
adjustment in the Exercise Price be made effective as of a record date for a
specified event, the Company may elect to defer until the occurrence of such
event (i) issuing to the holder of any Warrant exercised after such record date
the Common Shares and other shares in the capital of the Company, if any,
purchasable upon such exercise over and above the Common Shares and other shares
in the capital of the Company, if any, purchasable upon such exercise and (ii)
paying such holder any amount in cash in lieu of a fractional share; provided,
however, that the Company shall deliver to such Holder a due bill or other
appropriate instrument evidencing such Holder's right to receive such additional
Common Shares, other shares and cash upon the occurrence of the event requiring
such adjustment.
Section 4.7. Par Value; Valid Issuance.
The Company will not increase the par value of the Common Shares
above the Exercise Price (as adjusted hereunder from time to time), except to
the extent required by applicable law. The Company will take all such corporate
action, to the extent permitted by applicable law (including, without
limitation, reducing the par value thereof), as may be necessary or appropriate
in order that the Company may validly and legally issue stock upon the exercise
of Warrants.
ARTICLE V
DECREASE IN EXERCISE PRICE
The Board, 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 shares issuable upon the exercise of the Warrants.
ARTICLE VI
LOSS OR MUTILATION
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Upon receipt by the Company and the Warrant Agent of evidence
satisfactory to them of the ownership and the loss, theft, destruction or
mutilation of any Warrant Certificate and of indemnity or bond satisfactory to
them and (in the case of mutilation) upon surrender and cancellation thereof,
then, in the absence of notice to the Company or the Warrant Agent that the
Warrants represented thereby have been acquired by a bona fide purchaser, the
Company shall execute and the Warrant Agent shall countersign and deliver to the
registered Holder of the lost, stolen, destroyed or mutilated Warrant
Certificate, in exchange for or in lieu thereof, a new Warrant Certificate of
the same tenor and for a like aggregate number of Warrants. Upon the issuance of
any new Warrant Certificate under this Article VI, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and other expenses (including the fees and
expenses of the Warrant Agent) in connection therewith. Every new Warrant
Certificate executed and delivered pursuant to this Article VI in lieu of any
lost, stolen or destroyed Warrant Certificate shall constitute a contractual
obligation of the Company whether or not the allegedly lost, stolen or destroyed
Warrant Certificates shall be at any time enforceable by anyone and shall be
entitled to the benefits of this Agreement equally and proportionately with any
and all other Warrant Certificates duly executed and delivered hereunder. The
provisions of this Article VI are exclusive and shall preclude (to the extent
lawful) all other rights or remedies with respect to the replacement of
mutilated, lost, stolen, or destroyed Warrant Certificates.
ARTICLE VII
RESERVATION AND AUTHORIZATION
OF COMMON SHARES
The Company shall, subject to the following article, at all times
reserve and keep available such number of its authorized but unissued Common
Shares deliverable upon exercise of the Warrants as will be sufficient to permit
the exercise in full of all outstanding Warrants and will cause appropriate
evidence of ownership of such Common Shares to be delivered to the Warrant Agent
upon its request for delivery thereof upon the exercise of the Warrants. The
Company covenants that all Common Shares (or other securities) that may be
issued upon the exercise of the Warrants will, upon issuance, be duly and
validly issued, fully paid and nonassessable, free of pre-emptive rights and
free from all taxes, liens, charges and security interests created by or through
the Company.
ARTICLE VIII
WARRANT TRANSFER BOOKS; RESTRICTIONS ON TRANSFER
Section 8.1. Transfer and Exchange.
The Warrant Certificates shall be issued in registered form only.
The Warrant Agent shall keep at its office a register for the registration of
Warrant Certificates and transfers or exchanges of Warrant Certificates as
herein provided and other appropriate data as determined by the Warrant Agent.
The Company shall, upon reasonable notice to the Warrant Agent, have access to
such register during the Warrant Agent's regular business hours. All Warrant
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Certificates issued upon any registration of transfer or exchange of Warrant
Certificates shall be the valid obligations of the Company, evidencing the same
obligations, and entitled to the same benefits under this Agreement, as the
Warrant Certificates surrendered for such registration of transfer or exchange.
A Holder may transfer its Warrants only by written application to
the Warrant Agent stating the name of the proposed transferee and otherwise
complying with the terms of this Agreement. No such transfer shall be effected
until, and such transferee shall succeed to the rights of a Holder only upon,
final acceptance and registration of the transfer by the Warrant Agent in the
register. Prior to the registration of any transfer of Warrants by a Holder as
provided herein, the Company, the Warrant Agent, and any agent of the Company
may treat the person in whose name the Warrants are registered as the owner
thereof for all purposes and as the person entitled to exercise the rights
represented thereby, any notice to the contrary notwithstanding. When Warrant
Certificates are presented to the Warrant Agent with a request to register the
transfer or to exchange them for an equal amount of Warrants of other authorized
denominations, the Warrant Agent shall register such transfer or make such
exchange as requested if its requirements for such transactions are met. To
permit registrations of transfers and exchanges, the Company shall execute
Warrant Certificates at the Warrant Agent's request. No service charge shall be
made for any registration of transfer or exchange of Warrants, but the Company
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer of
Warrants.
Section 8.2. Special Transfer Provisions.
The following provisions shall apply:
(a) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of Warrants to a QIB:
The Warrant Agent shall register the transfer if such transfer is
being made by a proposed transferor who has checked the box provided for on the
form of Warrant Certificate stating, or has otherwise advised the Company and
the Warrant Agent in writing, that the sale has been made in compliance with the
provisions of Rule 144A to a transferee who has signed the certification
provided for on the form of Warrant Certificate stating, or has otherwise
advised the Company and the Warrant Agent in writing, that it is purchasing the
Warrants for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a QIB within the
meaning of Rule 144A, and is aware that the sale to it is being made in reliance
on Rule 144A and acknowledges that it has received such information regarding
the Company as it has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon its foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
(b) Transfers to Institutional Accredited Investors. The following
provisions shall apply with respect to the registration of any proposed transfer
of Warrants to any Institutional Accredited Investor which is not a QIB:
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The Warrant Agent shall register any proposed transfer of Warrants
to any such Person if (x) the transferor has delivered to the Warrant Agent and
the Company a certificate substantially in the form of Exhibit B-1 hereto and,
if required by paragraph (d) thereof, an opinion of counsel to the effect set
forth therein and (y) the proposed transferee has delivered to the Warrant Agent
and the Company a certificate substantially in the form of Exhibit B-2 hereto
and an opinion of counsel acceptable to the Company that such transfer is in
compliance with the Securities Act.
(c) Private Placement Legend. Upon the transfer, exchange or
replacement of Warrant Certificates not bearing the Private Placement Legend,
the Warrant Agent shall deliver Warrant Certificates that do not bear the
Private Placement Legend. Upon the transfer, exchange or replacement of Warrant
Certificates bearing the Private Placement Legend, the Warrant Agent shall
deliver only Warrant Certificates that bear the Private Placement Legend unless
there is delivered to the Warrant Agent an opinion of counsel reasonably
satisfactory to the Company and its counsel and the Warrant Agent to the effect
that neither such legend nor the related restrictions on transfer are required
in order to maintain compliance with the provisions of the Securities Act.
(d) General. (i) By its acceptance of any Warrants represented by a
Warrant Certificate bearing the Private Placement Legend, each Holder of such
Warrants acknowledges the restrictions on transfer of such Warrants set forth in
this Agreement and in the Private Placement Legend and agrees that it will
transfer such Warrants only as provided in this Agreement. The Warrant Agent
shall not register a transfer of any Warrants unless such transfer complies with
the restrictions on transfer of such Warrants set forth in this Agreement. In
connection with any transfer of Warrants, each Holder agrees by its acceptance
of Warrants to furnish the Warrant Agent or the Company such certifications,
legal opinions or other information as either of them may reasonably require to
confirm that such transfer is being made pursuant to an exemption from, or a
transaction not subject to, the registration requirements of the Securities Act;
provided that the Warrant Agent shall not be required to determine (but may rely
on a determination made by the Company with respect to) the sufficiency of any
such certifications, legal opinions or other information. (ii) The Warrant Agent
shall retain copies of all letters, notices and other written communications
received pursuant to this Section 8.2. The Company shall have the right to
inspect and make copies of all such letters, notices or other written
communications at any reasonable time upon the giving of reasonable written
notice to the Warrant Agent.
Section 8.3. Surrender of Warrant Certificates.
Any Warrant Certificate surrendered for registration of transfer,
exchange or exercise of the Warrants represented thereby shall, if surrendered
to the Company, be delivered to the Warrant Agent, and all Warrant Certificates
surrendered or so delivered to the Warrant Agent shall be promptly cancelled by
the Warrant Agent and shall not be reissued by the Company and, except as
provided in this Article VIII in case of an exchange, Article III hereof in case
of the exercise of less than all the Warrants represented thereby or Article VI
in case of a mutilated Warrant Certificate, no Warrant Certificate shall be
issued hereunder in lieu thereof. The Warrant Agent shall deliver to the Company
from time to time or otherwise dispose of such cancelled Warrant Certificates as
the Company may direct in writing.
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ARTICLE IX
WARRANT HOLDERS
Section 9.1. Warrant Holder Deemed Not a Stockholder.
The Company and the Warrant Agent may deem and treat the registered
Holder(s) of the Warrant Certificates as the absolute owner(s) thereof
(notwithstanding any notation of ownership or other writing thereon made by
anyone), for the purpose of any exercise thereof and for all other purposes, and
neither the Company nor the Warrant Agent shall be affected by any notice to the
contrary. Accordingly, the Company and/or the Warrant Agent shall not, except as
ordered by a court of competent jurisdiction as required by law, be bound to
recognize any equitable or other claim to or interest in the Warrants on the
part of any person other than such registered Holder, whether or not it shall
have express or other notice thereof. Prior to the exercise of the Warrants, no
Holder of a Warrant Certificate, as such, shall be entitled to any rights of a
stockholder of the Company, including, without limitation, the right to vote or
to consent to any action of the stockholders, except as otherwise provided in
this Agreement, to receive dividends or other distributions, to exercise any
preemptive right or to receive any notice of meetings of stockholders and,
except as otherwise provided in this Agreement, shall not be entitled to receive
any notice of any proceedings of the Company.
Section 9.2. Right of Action.
All rights of action with respect to this Agreement are vested in
the Holders of the Warrants, and any Holder of any Warrant, without the consent
of the Warrant Agent or the Holders of any other Warrant, 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 right to exercise such Warrants in the
manner provided in the Warrant Certificate representing such Warrants and in
this Agreement.
ARTICLE X
THE WARRANT AGENT
Section 10.1. Duties and Liabilities.
The Warrant Agent hereby accepts the agency established by this
Agreement and agrees to perform the same upon the terms and conditions herein
set forth, by all of which the Company and the Holders of Warrants, by their
acceptance thereof, shall be bound. The Warrant Agent shall not, by
countersigning Warrant Certificates or by any other act hereunder, be deemed to
make any representations as to the validity or authorization of the Warrants or
the Warrant Certificates (except as to its countersignature thereon) or of any
Common Shares issued upon exercise of any Warrant, or as to the accuracy of the
computation of the Exercise Price or the number or kind or amount of Common
Shares deliverable upon exercise of any Warrant or the correctness of the
representations of the Company made in the certificates that the Warrant Agent
receives. The Warrant Agent shall not be accountable for the use or application
by the Company of the proceeds of the exercise of any Warrant. The Warrant Agent
shall not have any
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duty to calculate or determine any adjustments with respect to either the
Exercise Price or the kind and amount of Common Shares receivable by Holders
upon the exercise of Warrants required from time to time and the Warrant Agent
shall have no duty or responsibility in determining the accuracy or correctness
of such calculation. The Warrant Agent shall not be (a) liable for any recital
or statement of fact contained herein or in the Warrant Certificates or for any
action taken, suffered or omitted by it in good faith in the belief that any
Warrant Certificate or any other documents or any signatures are genuine or
properly authorized, (b) responsible for any failure on the part of the Company
to comply with any of its covenants and obligations contained in this Agreement
or in the Warrant Certificates or (c) liable for any act or omission in
connection with this Agreement except for its own gross negligence, bad faith or
willful misconduct. The Warrant Agent is hereby authorized to accept
instructions with respect to the performance of its duties hereunder from a
Senior Officer of the Company and to apply to any such Senior Officer for
instructions (which instructions will be promptly given in writing when
requested) and the Warrant Agent shall not be liable for any action taken or
suffered to be taken by it in good faith in accordance with the instructions of
any such Senior Officer; provided, however, that, in its discretion, the Warrant
Agent may, in lieu thereof, accept other evidence of such or may require such
further or additional evidence as it may deem reasonable. The Warrant Agent
shall not be liable for any action taken with respect to any matter in the event
it requests instructions from the Company as to that matter and does not receive
such instructions within a reasonable period of time after the request therefor.
The Warrant Agent may execute and exercise any of the rights and
powers hereby vested in it or perform any duty hereunder either itself or by or
through its attorneys, agents or employees, and the Warrant Agent shall not be
answerable or accountable for any act, default, neglect or misconduct of any
such attorneys, agents or employees; provided that reasonable care has been
exercised with respect to the retention of any such attorney, agent or employee.
The Warrant Agent shall not be under any obligation or duty to institute, appear
in or defend any action, suit or legal proceeding in respect hereof, unless
first indemnified to its reasonable satisfaction. The Warrant Agent shall
promptly notify the Company in writing of any claim made or action, suit or
proceeding instituted against it arising out of or in connection with this
Agreement.
The Company will perform, execute, acknowledge and deliver or cause
to be delivered all such further acts, instruments and assurances as are
consistent with this Agreement and as may reasonably be required by the Warrant
Agent in order to enable it to carry out or perform its duties under this
Agreement.
The Warrant Agent shall act solely as agent of the Company
hereunder. The Warrant Agent shall not be liable except for the failure to
perform such duties as are specifically set forth herein, and no implied
covenants or obligations shall be read into this Agreement against the Warrant
Agent, whose duties and obligations shall be determined solely by the express
provisions hereof.
Section 10.2. Right to Consult Counsel.
The Warrant Agent may at any time consult with legal counsel (who
may be legal counsel for the Company), and the opinion or advice of such counsel
shall be full and
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complete authorization and protection to the Warrant Agent and the Warrant Agent
shall incur no liability or responsibility to the Company or to any Holder for
any action taken, suffered or omitted by it in good faith in accordance with the
opinion or advice of such counsel.
Section 10.3. Compensation; Indemnification.
The Company agrees promptly to pay the Warrant Agent from time to
time and in any case within 30 days of receipt of an invoice, compensation for
its services hereunder as the Company and the Warrant Agent may agree from time
to time, and to reimburse it upon its request for reasonable fees or expenses
and reasonable counsel fees and expenses incurred in connection with the
execution and administration of this Agreement, and further agrees to indemnify
the Warrant Agent which shall include for purposes of this Section 10.3 its
directors, officers, agents or employees and save it harmless against any
losses, liabilities or expenses (including the fees and expenses of its counsel)
arising out of or in connection with the acceptance and administration of this
Agreement and under the Warrant Registration Rights Agreement, including,
without limitation, the reasonable costs and expenses of investigating or
defending any claim of such liability, except that the Company shall have no
liability hereunder to the extent that any such loss, liability or expense
results from the Warrant Agent's own gross negligence, bad faith or willful
misconduct. The obligations of the Company under this Section 10.3 shall survive
the exercise and the expiration of the Warrants, the termination of this
Agreement and the resignation or removal of the Warrant Agent in respect of
services or expenses incurred in connection with the Warrants or this Agreement.
Section 10.4. No Restrictions on Actions.
Nothing in this Agreement shall be deemed to prevent the Warrant
Agent and any stockholder, director, officer or employee of the Warrant Agent
from buying, selling or dealing in any of the Warrants or other securities of
the Company or becoming pecuniarily interested in transactions in which the
Company may be interested, or contracting with or lending money to the Company
or otherwise acting as fully and freely as though it were not the 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.
Section 10.5. Discharge or Removal; Replacement Warrant Agent.
The Warrant Agent may resign from its position as such and be
discharged from all further duties and liabilities hereunder (except liability
arising as a result of the Warrant Agent's own gross negligence, bad faith or
willful misconduct), after giving one month's prior written notice to the
Company. The Company may at any time remove the Warrant Agent upon one month's
written notice specifying the date when such discharge shall take effect, 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
mail to each Holder of a Warrant, at the Company's expense, 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 or removed Warrant Agent
or the Holder of any Warrant may apply
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to any court of competent jurisdiction for the appointment of a new warrant
agent. After 30 days from receipt of, or giving, notice, as the case may be, and
pending appointment of a successor to the original Warrant Agent, either by the
Company or by such a court, the duties of the Warrant Agent shall be carried out
by the Company. Any new warrant agent, whether appointed by the Company or by
such a court, shall be a bank or trust company 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 $25,000,000. The combined capital and
surplus of any such new warrant agent shall be deemed to be (or if such warrant
agent is a member of a bank holding system, its bank holding company shall have)
the combined capital and surplus as set forth in the most recent annual report
of its condition published by such warrant agent prior to its appointment,
provided that such reports are published at least annually pursuant to law or to
the requirements of a federal or state supervising or examining authority. 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; however, the original Warrant Agent shall in
all events deliver and transfer to the successor Warrant Agent all property
(including, without limitation, documents and recorded information), if any, at
the time held hereunder by the original Warrant Agent and 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 file notice thereof with the resigning or removed
Warrant Agent and shall forthwith cause a copy of such notice to be mailed by
the successor Warrant Agent to each Holder of a Warrant. Failure to give any
notice provided for in this Section 10.5, 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. No Warrant Agent
hereunder shall be liable for any acts or omissions of any successor Warrant
Agent.
Section 10.6. Successor Warrant Agent.
Any corporation into which the Warrant Agent or any new warrant
agent may be merged or converted, or any corporation resulting from any
consolidation to which the Warrant Agent or any new warrant agent shall be a
party or any corporation succeeding to all or substantially all the corporate
agency business of the Warrant Agent, shall be a successor Warrant Agent under
this Agreement without any further act, provided that such corporation would be
eligible for appointment as successor to the Warrant Agent under the provisions
of Section 10.5 hereof. Any such successor Warrant Agent shall promptly cause
notice of its succession as Warrant Agent to be mailed to each Holder of a
Warrant.
Section 10.7. Conditions of Warrant Agent's Obligations.
The Warrant Agent accepts its obligations herein set forth upon the
terms and conditions hereof, and the Company agrees to cause the following to
occur:
At the Closing Date, the Warrant Agent shall have received a signed
opinion or signed opinions of Allen S. Lipson, Executive Vice President,
Business and Legal Affairs of the Company and Paul, Hastings, Janofsky & Walker
LLP, counsel for the Company, each dated as
22
<PAGE>
of the Closing Date, in form and substance satisfactory to counsel for the
Warrant Agent, to the effect set forth in Exhibits C-1 and C-2 hereto.
ARTICLE XI
REPRESENTATIONS AND WARRANTIES
(A) In order to induce the Warrant Agent to enter into this
Agreement, the Company represents and warrants to the Warrant Agent as set forth
in Section 11.1 through Section 11.9 of this Article.
Section 11.1. Organization, Etc.
The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation and is duly qualified to transact business and is in good standing
in each jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a material
adverse effect on the business, condition (financial or otherwise), operations,
performance, properties or prospective financial condition of the Company and
its subsidiaries, taken as a whole.
Section 11.2. Validity of this Agreement.
This Agreement has been duly authorized and, when executed and
delivered by the Company, will be a valid and binding agreement of the Company,
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization or similar laws affecting the enforcement of
creditors' rights generally and general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
Section 11.3. Validity of the Warrant Registration Rights Agreement.
The Warrant Registration Rights Agreement has been duly authorized
and, when executed and delivered by the Company, will be a valid and binding
agreement of the Company, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization or similar laws affecting the
enforcement of creditors' rights generally and general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) and except as rights to indemnification and contribution under
the Warrant Registration Rights Agreement may be limited under applicable law.
Section 11.4. Validity of the Warrants.
The Warrants have been duly authorized and, when executed by the
Company and countersigned by the Warrant Agent as provided in this Agreement,
will be valid and binding obligations of the Company, enforceable in accordance
with their terms, subject to applicable bankruptcy, insolvency, reorganization
or similar laws affecting the enforcement of creditors' rights generally and
general principles of equity (regardless of whether such enforceability is
23
<PAGE>
considered in a proceeding in equity or at law), and will be entitled to the
benefits of the Warrant Registration Rights Agreement.
Section 11.5. Non-Contravention, Governmental Approval, Etc.
The execution and delivery by the Company of, and the performance by
the Company of its obligations under, this Agreement and the Warrant
Registration Rights Agreement will not contravene any provision of applicable
law or the articles of incorporation or by-laws of the Company or any agreement
or other instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or any judgment,
order or decree of any governmental body, agency or court having jurisdiction
over the Company or any subsidiary, and no consent, approval, authorization or
order of, or qualification with, any governmental body or agency is required for
the performance by the Company of its obligations under this Agreement or the
Warrant Registration Rights Agreement, except such as may be required by federal
and state securities laws with respect to the Company's obligations under the
Warrant Registration Right Agreement.
Section 11.6. Capitalization, Reservation of Shares, Etc.
The Company has an authorized capitalization of 350,000,000 shares,
consisting of 250,000,000 shares of Common Stock and 100,000,000 shares of
preferred stock, par value $.01 per share, and all of the issued shares of
capital stock of the Company have been duly and validly authorized (or ratified)
and issued and are fully paid and non-assessable; the shares of the Common Stock
initially issuable upon exercise of the Warrants have been duly and validly
authorized and reserved for issuance and, when issued, delivered and paid for in
accordance with the provisions of the Warrants and this Agreement, will be duly
and validly issued, fully paid and non-assessable.
Section 11.7. Accuracy of Information.
None of the written factual information heretofore or
contemporaneously furnished in writing to the Warrant Agent by or on behalf of
the Company in connection with the Warrant Agreement or the Warrant Registration
Rights Agreement or any transaction contemplated hereby or thereby contains any
untrue statement of a material fact, or omits to state any material fact
necessary to make any information not misleading, and no other factual
information hereafter furnished in connection with the Warrant Agreement or
Warrant Registration Rights Agreement by or on behalf of the Company to the
Warrant Agent will contain any untrue statement of a material fact or will omit
to state any material fact necessary to make any information not misleading on
the date as of which such information is dated or certified.
Section 11.8. No General Solicitation.
The Company has not engaged in any "general solicitation" (as
defined in Regulation D under the Securities Act) with respect to the Warrants
or Underlying Securities.
Section 11.9. No Integration.
24
<PAGE>
The Company has not issued, sold or offered any securities, the
issuance, sale or offering of which could be integrated with the issuance and
sale by the Company of the Warrants today hereunder.
(B) In order to induce the Company to enter into this Agreement, the
Warrant Agent represents and warrants to the Company as set forth in Sections
11.10 and 11.11 of this Article.
Section 11.10. IAI Status.
The Warrant Agent is an Institutional "Accredited Investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act).
Section 11.11. No General Solicitation.
The Warrants were not offered to the Warrant Agent by means of a
general solicitation or publicly disseminated advertisement or sales literature,
nor is the Warrant Agent aware of any offers made to other persons by such
means.
ARTICLE XII
PUT-RIGHT
Section 12.1. Put Right.
Subject to the Company's debt agreements, beginning two years after
the Initial Funding Date, during any period in which a suspension is in effect
under Section 4 of the Warrant Registration Rights Agreement, the Holders shall
have the right, upon 5 Business Days' notice, to sell Warrants to the Company
for a price in cash equal to the Current Market Value of the Underlying
Securities with respect to such Warrants, minus the Exercise Price of such
Warrants; provided that the Holders shall not have such right if, after giving
effect to such sale to the Company, the Company and its subsidiaries
(consolidated) would have less than $15 million in cash and cash equivalents.
ARTICLE XIII
MISCELLANEOUS
Section 13.1. Monies Deposited with the Warrant Agent.
The Warrant Agent shall not be required to pay interest on any
monies deposited pursuant to the provisions of this Agreement except such as it
shall agree in writing with the Company to pay thereon. Any monies, securities
or 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 monies, securities or other property shall have been deposited;
but such monies, securities or other property need not be segregated from other
funds, securities or other property except to the extent required by law. Any
monies, securities or other property deposited
25
<PAGE>
with the Warrant Agent for payment or distribution to the Holders that remains
unclaimed for one year after the date the monies, securities or other property
was deposited with the Warrant Agent shall be delivered, subject to applicable
state escheatment laws, to the Company upon its request therefor.
Section 13.2. Payment of Taxes.
Subject to Article VI hereof, all Common Shares purchasable upon the
exercise of Warrants shall be validly issued, fully paid and not subject to any
calls for funds, and the Company shall pay any taxes and other governmental
charges that may be imposed under the laws of the United States of America or
any political subdivision or taxing authority thereof or therein in respect of
the issue or delivery thereof upon exercise of Warrants (other than taxes on or
measured by income imposed on any Holder). The Company shall not be required,
however, to pay any tax or other charge imposed in connection with any transfer
involved in the issue of any certificate for Common Shares (including other
securities or property purchasable upon the exercise of the Warrants) or payment
of cash to any Person other than the Holder of a Warrant Certificate surrendered
upon the exercise of a Warrant and in case of such transfer or payment, the
Warrant Agent and the Company shall not be required to issue any share
certificate or pay any cash until such tax or charge has been paid or it has
been established to the Warrant Agent's and the Company's satisfaction that no
such tax or charge is due.
Section 13.3. No Merger, Consolidation or Sale of Assets of the
Company.
Except as otherwise provided herein, the Company will not merge into
or consolidate with any other Person, or sell or otherwise transfer all or
substantially all of its property and assets to any Person, unless the entity
resulting from such merger or consolidation, or such Person, shall expressly
assume, by supplemental agreement reasonably satisfactory in form to the Warrant
Agent and executed and delivered to the Warrant Agent, the due and punctual
performance and observance of each and every covenant and condition of this
Agreement or contained in the Warrants to be performed and observed by the
Company.
Section 13.4. Reports to Holders.
At all times from and after the Closing Date, if the Company is not
then required to file reports with the Commission, the Company shall file with
the Commission to the extent then permitted by the Exchange Act and by the
Commission, all such information on an appropriate available form as it is
required to file with the Commission by Section 13(a) or 15(d) under the
Exchange Act, including information required by annual, quarterly or current
reports. The Company shall supply the Warrant Agent and each Holder or shall
supply to the Warrant Agent for forwarding to all such Holders, without cost to
such Holders, copies of such reports and other information. The Warrant Agent's
receipt of such reports and other information shall not constitute constructive
notice of any information contained therein or determinable from information
contained therein, including the Company's compliance with any of its covenants
hereunder (as to which the Warrant Agent is entitled to rely exclusively on
Officers' Certificates). In addition, at all times prior to the date that is six
months after the Closing Date, the Company shall, at its cost, supply to the
Warrant Agent, for forwarding to all Holders, without cost to such Holders,
quarterly and annual reports substantially equivalent to those
26
<PAGE>
described above or which would otherwise be required by the Exchange Act,
commencing with the report for the fiscal quarter ending immediately after the
Closing Date.
Section 13.5. Notices; Payment.
(a) Except as otherwise provided in Section 12.5(b) hereof, any
notice, demand or delivery authorized by this Agreement shall be sufficiently
given or made when mailed, if sent by first class mail, postage prepaid,
addressed to any Holder of a Warrant at such Holder's last known address
appearing on the register of the Company maintained by the Warrant Agent and to
the Company or the Warrant Agent as follows:
To the Company:
Marvel Enterprises, Inc.
10 East 40th Street
9th Floor
New York, New York 10018
Telecopier No.: (917) 472-2244
Attention: Allen S. Lipson
Executive Vice President, Business
and Legal Affairs
With a copy to:
Paul, Hastings, Janofsky & Walker LLP
1055 Washington Boulevard
Stamford, Connecticut 06901
Telecopier No.: (203) 359-3031
Attention: John Turitzin
To the Warrant Agent:
HSBC Securities (USA), Inc.
590 Madison Avenue
New York, NY 10022
Telecopier No.: (212) 525-5048
Attention: Paul Harrington
or such other address as shall have been furnished to the party giving or making
such notice, demand or delivery. Any notice that is mailed in the manner herein
provided shall be conclusively presumed to have been duly given when mailed,
whether or not the Holder receives the notice.
(b) Payment of the Exercise Price shall be made in accordance with
the provisions of this Agreement at the office of the Warrant Agent set forth
above.
27
<PAGE>
(c) Any notice required to be given by the Company to the Holders
shall be made by mailing by registered mail, return receipt requested, to the
Holders at their last known addresses appearing on the register maintained by
the Warrant Agent. The Company hereby irrevocably authorizes the Warrant Agent,
in the name and at the expense of the Company, to mail any such notice upon
receipt thereof from the Company. Any notice that is mailed in the manner herein
provided shall be conclusively presumed to have been duly given when mailed,
whether or not the Holder receives the notice.
Section 13.6. Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the
Company and the Warrant Agent and their respective successors and assigns, and
the Holders from time to time of the Warrants. Nothing in this Agreement is
intended or shall be construed to confer upon any Person, other than the
Company, the Warrant Agent and the Holders of the Warrants, any right, remedy or
claim under or by reason of this Agreement or any part hereof.
Section 13.7. Counterparts.
This Agreement may be executed manually or by facsimile in any
number of counterparts, each of which shall be deemed an original, but all of
which together constitute one and the same instrument.
Section 13.8. Amendments.
The Warrant Agent may, without the consent or concurrence of the
Holders of the Warrants, by supplemental agreement or otherwise, join with the
Company in making any changes or corrections in this Agreement that (a) are
required to cure any ambiguity or to correct any defective or inconsistent
provision or clerical omission or mistake or manifest error herein contained or
(b) add to the covenants and agreements of the Company in this Agreement further
covenants and agreements of the Company thereafter to be observed, or surrender
any rights or power reserved to or conferred upon the Company in this Agreement;
provided that in either case such changes or corrections do not and will not
materially adversely affect, alter or change the rights, privileges or
immunities of the Holders of Warrants. Any other amendment or supplement to this
Agreement may be effected with the written consent of the Holders of a majority
of the then outstanding Warrants. In determining whether the Holders of the
required number of Warrants have concurred in any direction, waiver or consent,
Warrants owned by the Company or any Affiliate of the Company shall be
disregarded and deemed not to be outstanding. Upon the Warrant Agent's request,
the Company shall promptly provide an Officer's Certificate and Opinion of
Counsel which provide all conditions precedent to adoption of an amendment that
have been satisfied, which Opinion of Counsel may be subject to customary or
otherwise appropriate assumptions and qualifications and may rely on such
Officer's Certificate as to any matters of fact. The consent of each Holder of
the Warrants affected is required for any amendment pursuant to which the
Exercise Price would be increased or the number of Common Shares (or other
securities) issuable upon exercise of Warrants would be decreased (other than
pursuant to Article IV of this Agreement).
28
<PAGE>
Section 13.9. Headings.
The descriptive headings of the several Sections of this Agreement
are inserted for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
Section 13.10. Common Shares Legend.
Unless and until the Common Shares purchasable upon the exercise of
the Warrants are registered under the Securities Act, or unless otherwise agreed
by the Company and the Holder thereof, such Common Shares will bear a legend to
the following effect:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE), (3) TO AN INSTITUTIONAL ACCREDITED INVESTOR IN
A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS UNDER REGULATION D
UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, OR (5) PURSUANT TO ANY OTHER EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE, IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES.
Section 13.11. Third Party Beneficiaries.
The Holders shall be third party beneficiaries to the agreements
made hereunder between the Company, on the one hand, and the Warrant Agent, on
the other hand, and each Holder shall have the right to enforce such agreements
directly to the extent it deems such enforcement necessary or advisable to
protect its rights or the rights of Holders hereunder. By acquiring Warrants,
each Holder agrees to be bound by the obligations of Holders generally as set
forth herein and as such obligations may be applicable to such Holder.
Section 13.12. Termination.
Except as otherwise specified herein, this Agreement shall terminate
at 5:00 p.m. (New York City time) on the fifth anniversary of the Closing Date.
Notwithstanding the foregoing, this Agreement shall terminate on any earlier
date as of which all Warrants have been exercised.
29
<PAGE>
Section 13.13. Method of Payment.
The U.S. dollar is the sole currency of account and payment for all
sums payable by the Company or the Holders under or in connection with the
Warrants, including damages.
Section 13.14. Governing Law.
This Agreement shall be governed by the laws of the State of New
York. The Warrant Agent, the Company and the Holders agree to submit to the
jurisdiction of the courts of the State of New York in any action or proceeding
arising out of or related to this Agreement or the Warrants.
30
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed, as of the day and year first above written.
MARVEL ENTERPRISES, INC.
By /s/ Allen Lipson
-----------------------------------------
Name: Allen Lipson
Title: Executive Vice President
HSBC SECURITIES (USA), INC.
By /s/ Vivek Khanna
----------------------------------------
Name: Vivek Khanna
Title: Vice President
31
<PAGE>
EXHIBIT A
FORM OF WARRANT CERTIFICATE
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE), (3) TO AN INSTITUTIONAL ACCREDITED INVESTOR IN
A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS UNDER REGULATION D
UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR (5) PURSUANT TO ANY OTHER EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE, IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES.
<PAGE>
MARVEL ENTERPRISES, INC.
[___________]
CUSIP No. _____
No. _____
WARRANTS TO PURCHASE COMMON SHARES
This certifies that [___________] or its registered assigns, is the
owner of ______ Warrants, each of which represents the right to purchase from
Marvel Enterprises, Inc., a Delaware corporation (the "Company"), at any time
beginning November 30, 2001 and prior to the Expiration Date (as defined in the
Warrant Agreement referred to below), _______ shares of the common stock, $.01
par value per share, of the Company (the "Common Shares") at a per share
exercise price (the "Exercise Price") equal to $___ [the market price for such
shares as quoted on the New York Stock Exchange as of the close of business one
day prior to the Initial Funding Date] (subject to adjustment as provided in the
Warrant Agreement), upon surrender hereof at the office of HSBC Securities
(USA), Inc., or to its successor, as the warrant agent under the Warrant
Agreement (any such warrant agent being herein called the "Warrant Agent"), with
the Subscription Form on the reverse hereof duly executed, with signature
guaranteed as therein specified and simultaneous payment in full by wire
transfer of immediately available funds or by certified or official bank or bank
cashier's check payable to the order of the Company. At any time on or before
the Expiration Date, any outstanding Warrants may be exercised on any Business
Day (as defined in the Warrant Agreement); provided that the Holders of Warrants
shall be able to exercise their Warrants only if a registration statement
relating to the Common Stock (or other securities) issuable upon exercise of the
Warrants is then effective and available or the exercise of such Warrants is
exempt from the registration requirements of the Securities Act of 1933, as
amended, as reasonably determined by the Company, and such securities are
qualified for sale or exempt from qualification under the applicable securities
laws of the states or other jurisdictions in which such Holder resides.
This Warrant Certificate is issued under and in accordance with a
Warrant Agreement dated as of November 30, 2001 (the "Warrant Agreement"),
between the Company and HSBC Securities (USA), Inc., as Warrant Agent, and is
the subject of a Registration Rights Agreement dated as of November 30, 2001
(the "Warrant Registration Rights Agreement"), between the Company and HSBC
Securities (USA), Inc., as Warrant Agent, and is subject to the Articles of
Incorporation of the Company and to the terms and provisions contained therein,
to all of which terms and provisions the holder of this Warrant Certificate
consents by acceptance hereof. The terms of the Warrant Agreement and the
Warrant Registration Rights Agreement are hereby incorporated herein by
reference and made a part hereof. Reference is hereby made to the Warrant
Agreement and the Warrant Registration Rights Agreement for a full description
of the rights, limitations of rights, obligations, duties and immunities
thereunder of the Company and the Holders of the Warrants. The summary of the
terms of the Warrant Agreement and the Warrant Registration Rights Agreement
contained in this Warrant Certificate is subject to and qualified in its
entirety by express reference to the Warrant Agreement and the Warrant
Registration Rights Agreement. To the extent permitted by applicable law, in the
event of any
<PAGE>
inconsistency between the terms of this Warrant and the terms of the Warrant
Agreement or the Warrant Registration Rights Agreement, the terms of the Warrant
Agreement or the Warrant Registration Rights Agreement, as applicable, shall
govern. All terms used in this Warrant Certificate that are defined in the
Warrant Agreement and the Warrant Registration Rights Agreement shall have the
meanings assigned to them in such agreements.
Copies of the Warrant Agreement and the Warrant Registration Rights
Agreement are on file at the office of the Warrant Agent and may be obtained by
writing to the Warrant Agent at the following address:
HSBC Securities (USA), Inc.
590 Madison Avenue
New York, NY 10022
Telecopier No.: (212) 525-5048
Attention: Paul Harrington
This Warrant Certificate shall be void and all rights evidenced
hereby shall cease on November 30, 2006, unless sooner terminated by the
liquidation, dissolution or winding-up of the Company or as otherwise provided
in the Warrant Agreement upon the consolidation or merger of the Company with,
or sale of the Company to, another Person or unless such date is extended as
provided in the Warrant Agreement (including Section 3.4 thereof).
The Warrant Agreement and the Warrants shall be governed by the laws
of the State of New York. The Warrant Agent, the Company and the Holders agree
to submit to the jurisdiction of the courts of the State of New York in any
action or proceeding arising out of or related to this Agreement or the
Warrants.
<PAGE>
This Warrant Certificate shall not be valid for any purpose until it
shall have been countersigned by the Warrant Agent.
MARVEL ENTERPRISES, INC.
By:
------------------------------
Name:
Title:
Dated: November 30, 2001
Countersigned:
HSBC SECURITIES (USA), INC.,
as Warrant Agent
By:
------------------------------
Authorized Signatory
<PAGE>
FORM OF REVERSE OF WARRANT CERTIFICATE
SUBSCRIPTION FORM
(To be executed only upon exercise of Warrant)
To: HSBC Securities (USA), Inc.,
as Warrant Agent
590 Madison Avenue
New York, NY 10022
Telecopier No.: (212) 525-5048
Attention: Paul Harrington
The undersigned irrevocably exercises ________ of the Warrants
represented by this Warrant Certificate and herewith makes payment of $ _______
(such payment being in cash or by certified or official bank or bank cashier's
check payable to the order or at the direction of Marvel Enterprises, Inc. or
pursuant to a Cashless Exercise on the terms and conditions specified in this
Warrant Certificate and in the Warrant Agreement and the Warrant Registration
Rights Agreement referred to herein and surrenders this Warrant Certificate and
all right, title and interest therein to and directs that the common stock, par
value $.01 per share, of Marvel Enterprises, Inc. (the "Common 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:
-------------------------------
Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements of
the Warrant Agent, which requirements include
membership or participation in the Security
Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be
determined by the Warrant Agent in addition to, or
in substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
<PAGE>
Securities and/or check or other property to be issued or delivered to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
<PAGE>
FORM OF ASSIGNMENT
In consideration of monies or other valuable consideration 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:
Name(s) of Assignee(s): _____________________________________
Address: __________________________________________________
No. of Warrants: ___________________________________________
Please insert social security or other identifying number of assignee(s):
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.
In connection with any transfer of Warrants, the undersigned
confirms that without utilizing any general solicitation or general advertising
that:
Check One
---------
o (a) these Warrants are being transferred in compliance with the
exemption from registration under the U.S. Securities Act of 1933, as
amended, provided by Rule 144A thereunder.
or
--
o (b) these Warrants are being transferred other than in accordance with
(a) above and documents are being furnished which comply with the
conditions of transfer set forth in this Warrant Certificate and the
Warrant Agreement.
or
--
o (c) these Warrants are being transferred pursuant to an effective
registration statement under the U.S. Securities Act of 1933, as
amended.
If none of the foregoing boxes is checked, the Warrant Agent shall not be
obligated to register the Warrants in the name of any Person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Article VIII of the Warrant Agreement shall
have been satisfied.
Dated:
<PAGE>
-------------------------
(Signature of Owner)
-------------------------
(Street Address)
-------------------------
(City) (State) (Zip Code)
Signature Guaranteed By:
---------------------------
Signatures must be guaranteed by an
"eligible guarantor institution" meeting the
requirements of the Warrant Agent, which
requirements include membership or
participation in the Security Transfer Agent
Medallion Program ("STAMP") or such other
"signature guarantee program" as may be
determined by the Warrant Agent in addition
to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act
of 1934, as amended.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing the
Warrant(s) for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the U.S. Securities
Act of 1933, as amended, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received
<PAGE>
EXHIBIT B-1
FORM OF CERTIFICATE TO BE
DELIVERED BY TRANSFERORS IN CONNECTION WITH
TRANSFERS TO INSTITUTIONAL ACCREDITED INVESTORS
[Date]
Marvel Enterprises, Inc.
10 E. 40th Street
9th Floor
New York, NY 10018
Telecopier No.: (917) 472-2244
Attention: Allen S. Lipson
Executive Vice President, Business
and Legal Affairs
HSBC Securities (USA), Inc.
590 Madison Avenue
New York, NY 10022
Telecopier No.: (212) 525-5048
Attention: Paul Harrington
Re: Warrants (the "Warrants") to Purchase
Common Shares of Marvel Enterprises, Inc. (the "Company")
Ladies and Gentlemen:
We hereby certify that such transfer is being effected in compliance
with the transfer restrictions applicable to the Warrants or interests therein
transferred pursuant to and in accordance with the U.S. Securities Act of 1933,
as amended (the "Securities Act"), and accordingly we hereby further certify
that (check one):
(a) o such transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(b) o such transfer is being effected to the Company or a
subsidiary thereof;
or
(c) o such transfer is being effected pursuant to an effective
registration statement under the Securities Act;
or
<PAGE>
(d) o such transfer is being effected pursuant to an exemption from
the registration requirements of the Securities Act other than Rule 144A or Rule
144 thereunder, and we hereby further certify that such transfer complies with
the transfer restrictions applicable to the Warrants or interests therein
transferred to institutional accredited investors as defined in Rule 501(a)(1),
(2), (3) and (7) under the Securities Act and in accordance with the
requirements of the exemption claimed, which certification is supported by an
opinion of counsel provided by us or the transferee (a copy of which we have
attached to this certification), to the effect that such transfer is in
compliance with the Securities Act. Upon consummation of the proposed transfer
in accordance with the terms of the Warrant Agreement, the transferred Warrants
or interests therein will be subject to the restrictions on transfer enumerated
in the private placement legend printed on the Certificated Warrant and in the
Warrant Agreement and the Securities Act.
Very truly yours,
[Name of Transferor]
By:
----------------------
Authorized Signatory
<PAGE>
EXHIBIT B-2
FORM OF CERTIFICATE TO BE
DELIVERED BY TRANSFEREES IN CONNECTION WITH
TRANSFERS TO INSTITUTIONAL ACCREDITED INVESTORS
[Date]
Marvel Enterprises, Inc.
10 E. 40th Street
9th Floor
New York, NY 10018
Telecopier No.: (917) 472-2244
Attention: Allen S. Lipson
Executive Vice President, Business
and Legal Affairs
HSBC Securities (USA), Inc.
590 Madison Avenue
New York, NY 10022
Telecopier No.: (212) 525-5048
Attention: Paul Harrington
Re: Warrants (the "Warrants") to Purchase
Common Shares of Marvel Enterprises, Inc. (the "Company")
Ladies and Gentlemen:
In connection with our proposed purchase of ___________ aggregate
number of Warrants, we certify that:
1. We understand that any subsequent transfer of the Warrants,
any interest therein or the common stock, par value $.01 per share,
purchasable upon exercise of any Warrant (the "Warrant Shares") is subject
to certain restrictions and conditions set forth in the Warrant Agreement
dated as of November 30, 2001 relating to the Warrants (the "Agreement")
and the undersigned agrees to be bound by, and not to resell, pledge or
otherwise transfer the Warrants or Warrant Shares except in compliance
with, such restrictions and conditions and the U.S. Securities Act of 1933,
as amended (the "Securities Act").
2. We understand that the Warrants and the Warrant Shares have
not been registered under the Securities Act, and that the Warrants and the
Warrant Shares may not be offered or sold except as set forth in the
following sentence. We agree that if, within the time period referred to
under Rule 144(k) of the Securities Act as in effect on the date of such
transfer, we decide (for our self or for any account for which we are
acting) to resell or otherwise transfer the Warrants or Warrant Shares, we
will do so only (a) to the Company or any subsidiary thereof, (b) to a
qualified institutional buyer in compliance
<PAGE>
with Rule 144A under the Securities Act, (c) to an institutional accredited
investor as defined in Rule 501(a)(1),(2),(3) or (7) under the Securities
Act that furnishes to the Warrant Agent, with respect to the Warrants, and
to the Transfer Agent and Registrar, with respect to the Warrant Shares,
and the Company, prior to such transfer, a signed letter containing certain
representations and agreements relating to the restrictions on transfer of
the Warrants and the Warrant Shares (the form of which letter can be
obtained from the Warrant Agent or the Transfer Agent and Registrar, as the
case may be) and an opinion of counsel acceptable to the Company that such
transfer is in compliance with the Securities Act, (d) pursuant to the
exemption from registration provided by Rule 144 under the Securities Act
(if available), or (e) pursuant to an effective registration statement
under the Securities Act. We further understand that the Warrants purchased
by us will bear a legend to the foregoing effect during such period, which
legend may be removed after such period upon receipt of a certificate by
the Warrant Agent or Transfer Agent and Registrar (the form of which can be
obtained from the Warrant Agent or Transfer Agent and Registrar, as the
case may be).
3. We understand that, on any proposed resale of any Warrants,
we will be required to furnish to the Warrant Agent and the Company such
certifications, legal opinions and other information as the Warrant Agent
and the Company may reasonably require to confirm that the proposed sale
complies with the foregoing restrictions.
4. We are an institutional accredited investor (as defined in
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act)
and have such knowledge and experience in financial and business matters as
to be capable of evaluating the merits and risks of our investment in the
Warrants, and we and any accounts for which we are acting are each able to
bear the economic risk of our or its investment for an indefinite period of
time.
5. We are acquiring the Warrants purchased by us for our own
account or for one or more accounts (each of which is an institutional
accredited investor) as to each of which we exercise sole investment
discretion.
The Warrant Agent and the Company are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy hereof to
any interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:
----------------------
Authorized Signatory
<PAGE>
EXHIBIT C-1
FORM OF OPINION OF ALLEN S. LIPSON, EXECUTIVE VICE PRESIDENT, BUSINESS
AND LEGAL AFFAIRS OF THE COMPANY
1. The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware.
2. The execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Warrants, the Warrant
Agreement and the Warrant Registration Rights Agreement will not contravene (i)
any provision of Federal law or the laws of the State of New York, (ii) to the
best of my knowledge after reasonable inquiry, any agreement or other instrument
binding upon the Company that is material to the Company and its subsidiaries,
taken as a whole, or (iii) to the best of my knowledge after reasonable inquiry,
any judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Company or any of its subsidiaries.
3. No legal or governmental proceedings are pending or
threatened to which the Company is a party or to which any of the properties of
the Company is subject which are likely to have a material adverse effect on the
power or ability of the Company to perform its obligations under the Warrant
Agreement or the Warrant Registration Rights Agreement.
<PAGE>
EXHIBIT C-2
FORM OF OPINION OF PAUL, HASTINGS, JANOFSKY & WALKER LLP, COUNSEL
FOR THE COMPANY
1. Assuming the accuracy of the representations of the Company set
forth in Sections 11.8 and 11.9 of the Warrant Agreement and the representations
of the Warrant Agent set forth in Sections 11.10 and 11.11 of the Warrant
Agreement, the offer, issuance and sale of the Warrants to you in the manner
contemplated by the Warrant Agreement do not require registration under Section
5 of the United States Securities Act of 1933, as amended (it being understood
that no opinion is expressed as to any subsequent resale of the Warrants).
2. the Operative Agreements have been duly authorized, executed and
delivered by the Company and are valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective terms.
3. the shares of Common Stock initially issuable upon exercise of
the Warrants have been duly authorized and reserved for issuance and, upon
issuance, delivery and payment therefor in accordance with the Warrant
Agreement, will be validly issued, fully paid and nonassessable.
<PAGE>
APPENDIX A
LIST OF FINANCIAL EXPERTS
-------------------------
Bear, Stearns & Co. Inc.
CIBC World Markets Corp.
Chase Securities Inc.
Credit Suisse First Boston Corporation
Deutsche Bank Alex. Brown
FleetBoston Robertson Stephens Inc.
Jeffries & Company, Inc.
ING Baring LLC.
Lazard Freres & Co. LLC
Lehman Brothers Holdings Inc.
Merrill Lynch & Co., Inc.
Morgan Stanley Dean Witter & Co.
Prudential Securities Inc.
Salomon Smith Barney Holdings Inc.
The Goldman Sachs Group, Inc.
UBS Warburg LLC
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I...................................................................1
ARTICLE II..................................................................4
Section 2.1. Form of Warrant Certificates..........................4
Section 2.2. Restrictive Legends...................................4
Section 2.3. Execution and Delivery of Warrant Certificates........5
ARTICLE III.................................................................5
Section 3.1. Exercise Price........................................5
Section 3.2. Exercise; Restrictions on Exercise....................5
Section 3.3. Method of Exercise; Payment of Exercise Price.........6
ARTICLE IV..................................................................8
Section 4.1. Adjustments ..........................................8
Section 4.2. Notice of Adjustment.................................13
Section 4.3. Statement on Warrants................................14
Section 4.4. Notice of Consolidation, Merger, Etc.................14
Section 4.5. Fractional Interests.................................15
Section 4.6. When Issuance or Payment May Be Deferred.............15
Section 4.7. Par Value; Valid Issuance............................15
ARTICLE V..................................................................15
ARTICLE VI.................................................................15
ARTICLE VII................................................................16
ARTICLE VIII...............................................................16
Section 8.1. Transfer and Exchange................................16
Section 8.2. Special Transfer Provisions..........................17
Section 8.3. Surrender of Warrant Certificates....................18
ARTICLE IX.................................................................19
<PAGE>
Section 9.1. Warrant Holder Deemed Not a Stockholder..............19
ARTICLE X..................................................................19
Section 10.1. Duties and Liabilities...............................19
Section 10.2. Right to Consult Counsel.............................20
Section 10.3. Compensation; Indemnification........................21
Section 10.4. No Restrictions on Actions...........................21
Section 10.5. Discharge or Removal; Replacement Warrant Agent......21
Section 10.6. Successor Warrant Agent..............................22
Section 10.7. Conditions of Warrant Agent's Obligations............22
ARTICLE XI.................................................................23
Section 11.1. Organization, Etc....................................23
Section 11.2. Validity of this Agreement...........................23
Section 11.3. Validity of the Warrant Registration Rights
Agreement............................................23
Section 11.4. Validity of the Warrants.............................23
Section 11.5. Non-Contravention, Governmental Approval, Etc........24
Section 11.6. Capitalization, Reservation of Shares, Etc...........24
Section 11.7. Accuracy of Information..............................24
Section 11.8. No General Solicitation..............................24
Section 11.9. No Integration.......................................24
Section 11.10. IAI Status...........................................25
Section 11.11. No General Solicitation..............................25
ARTICLE XII PUT-RIGHT.....................................................25
Section 12.1. Put Right............................................25
ARTICLE XIII MISCELLANEOUS................................................25
Section 13.1. Monies Deposited with the Warrant Agent..............25
Section 13.2. Payment of Taxes.....................................26
Section 13.3. No Merger, Consolidation or Sale of Assets of the
Company..............................................26
<PAGE>
Section 13.4. Reports to Holders...................................26
Section 13.5. Notices; Payment.....................................27
Section 13.6. Binding Effect.......................................28
Section 13.7. Counterparts.........................................28
Section 13.8. Amendments...........................................28
Section 13.9. Headings.............................................29
Section 13.10. Common Shares Legend.................................29
Section 13.11. Third Party Beneficiaries............................29
Section 13.12. Termination..........................................29
Section 13.13. Method of Payment....................................30
Section 13.14. Governing Law........................................30
<PAGE>
EXHIBIT A FORM OF WARRANT CERTIFICATE
EXHIBIT B-1 FORM OF CERTIFICATE TO BE DELIVERED BY TRANSFERORS IN
CONNECTION WITH TRANSFERS TO INSTITUTIONAL ACCREDITED
INVESTORS
EXHIBIT B-2 FORM OF CERTIFICATE TO BE DELIVERED BY TRANSFEREES IN
CONNECTION WITH TRANSFERS TO INSTITUTIONAL ACCREDITED
INVESTORS
EXHIBIT C-1 FORM OF OPINION OF ALLEN S. LIPSON, EXECUTIVE VICE PRESIDENT,
BUSINESS AND LEGAL AFFAIRS OF THE COMPANY
EXHIBIT C-2 FORM OF OPINION OF PAUL, HASTINGS, JANOFSKY & WALKER LLP,
COUNSEL FOR THE COMPANY
APPENDIX A LIST OF FINANCIAL EXPERTS