PROXY AND STOCK OPTION AGREEMENT
PROXY AND STOCK OPTION AGREEMENT (this "Agreement"), dated as
of October 7, 1997, by and among Xxxxx Xxxxxxxxxx, Xxxxx Xxxxxxxxxx T.A. and Zib
Inc. (the "Stockholders"), and secured creditors of Marvel Entertainment Group,
Inc., a Delaware corporation ("Marvel") and certain of its direct and indirect
subsidiaries who become parties to this Agreement by executing and delivering a
separate Consenting Lender Execution Page in the form attached as Exhibit 1 to
this Agreement (the "Consenting Lenders").
WHEREAS, concurrently herewith, Toy Biz, Inc., a Delaware
corporation ("Toy Biz"), various secured creditors of Marvel and certain of its
direct and indirect subsidiaries propose to enter into an agreement (the "Master
Agreement") providing for the filing of a joint plan of reorganization (the
"Plan of Reorganization") and the merger of a wholly-owned subsidiary of Marvel
("TB Acquisition Corp.") with and into Toy Biz (the "Merger") pursuant to an
Agreement and Plan of Merger (the "Merger Agreement") whereby each share of
Class A Common Stock, par value $.01 per share ("Common Stock") of Toy Biz
issued and outstanding as of the effective date of the Merger (excluding Common
Stock held in treasury by Toy Biz or owned by Marvel or its affiliates) will be
converted into one share of common stock of Marvel; and
WHEREAS, the Stockholders own (beneficially or of record) as
of the date hereof 9,506,000 shares of Common Stock (collectively with any other
shares of Common Stock beneficially owned by the Stockholders, the "Existing
Shares", and together with any shares of Common Stock acquired or beneficially
owned by the Stockholder after the date hereof and prior to the termination
hereof, hereinafter collectively referred to as the "Shares"); and
WHEREAS, a Proxy and Stock Option Agreement, dated as of the
date of this Agreement, is being entered into by Xxx Xxxx ("Arad") and various
secured creditors of Marvel relating to the shares of Common Stock owned by Arad
(the "Arad Agreement"); and
WHEREAS, the Consenting Lenders are expected to or have
entered into the Master Agreement in reliance on the Stockholders' covenants
hereunder;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and other good and valuable consideration, it is
agreed as follows:
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1. Proxy. Each of the Stockholders hereby appoints the
Designated Consenting Lender the lawful proxy for the Stockholder to vote all of
the Shares which the Stockholder is entitled to vote, or which the Stockholder
controls, directly or indirectly, in each case, for and in the name, place and
stead of the Stockholder, at any annual, special or other meeting of the
stockholders of Toy Biz and at any adjournment thereof, or pursuant to any
consent in lieu of a meeting, at which meeting or in connection with which
consent action shall be taken, and such proxy shall be for the sole purpose of
acting (a) in favor of the transactions contemplated by the Master Agreement and
the Plan of Reorganization, including the Merger; (b) against any action or
agreement that would result in a breach in any material respect of any covenant,
representation or warranty or any other obligation or agreement of Toy Biz under
the Master Agreement or any agreement contemplated thereby, including the Merger
Agreement;(c) against any action or agreement that would, directly or
indirectly, impede, interfere with, delay, postpone or attempt to discourage the
Merger or confirmation of the Plan of Reorganization, including, but not limited
to: (i) any extraordinary corporate transaction (other than the Merger), such as
a merger, other business combination, reorganization or liquidation involving
Toy Biz or its subsidiary; (ii) a sale or transfer of a material amount of
assets of Toy Biz or its subsidiary except as otherwise described on Schedule 1
in the Disclosure Schedule separately delivered by the Stockholders with this
Agreement; (iii) any change in the management or board of directors of Toy Biz,
except as otherwise agreed to in writing by a Majority of the Consenting Lenders
(as defined in Section 11); (iv) any change in the present capitalization or
dividend policy of Toy Biz; or (v) any other change in Toy Biz's corporate
structure or business; and (d) in favor of any other action, directly or
indirectly, necessary or appropriate to effect the Merger in accordance with the
terms of the Merger Agreement or confirmation of the Plan of Reorganization. The
foregoing proxy, which is coupled with an interest and therefore not terminable
by the Stockholders without the consent of all of the Consenting Lenders, will
remain in effect during the term of this Agreement. "Designated Consenting
Lender" means a Consenting Lender designated in writing by a Majority of the
Consenting Lenders who agrees to act as agent for the Consenting Lenders.
2. Option to Purchase and Sell.
2.1. Grant of Option. Each of the Stockholders hereby grants
to the Consenting Lenders an irrevocable option (the "Option") to purchase all,
but not less than all, of the Shares, on the terms and subject to the conditions
set forth herein. The Option shall be exercisable only if the Master Agreement
is terminated pursuant to Section 7.1(e) of the Master Agreement (a "Toy Biz
Breach Event") (other than as a result of a breach or failure by Toy Biz to
perform or comply with any of its covenants
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or agreements contained in the Master Agreement which (i) occurs after there has
been a change in control of Toy Biz as a result of an adverse ruling in the
Stockholder Agreement Litigation (as defined in Section 3) and (ii) is caused by
the action or inaction of the new board of directors or new management of Toy
Biz (a "New Management Breach")) or if there is a Stockholder Breach Event. The
right of the Consenting Lenders to exercise the Option shall be in addition to,
and shall in no way limit, their rights against Toy Biz for breach by Toy Biz of
the Master Agreement, against the Stockholders for breach by the Stockholders of
this Agreement, or against Arad for breach by Arad of the Arad Agreement, and
shall be in addition to their rights under Section 14 of this Agreement.
2.2. Exercise of Option. The Option may be exercised only by
action of a Majority of the Consenting Lenders at any time after the occurrence
of (i) a Toy Biz Breach Event which is not a New Management Breach or (ii) a
Stockholder Breach Event and prior to the termination of this Agreement pursuant
to Section 5 hereof. A "Stockholder Breach Event" means (i) a breach by any of
the Stockholders or a failure of any of the Stockholders in any material respect
to perform or comply with any of their covenants and agreements contained
herein, and/or (ii) a breach by any of the Stockholders of its representations
and warranties contained herein in any material respect if such breach has not
been cured within 10 days of notice by the Consenting Lenders of such breach. A
Majority of the Consenting Lenders may exercise the Option by sending a written
notice of such exercise to each of the Stockholders specifying a date (not less
than two business days nor more than twenty days from the date such notice is
given) for the closing of such purchase (the "Closing"). The Closing shall take
place at the offices of Wachtell, Lipton, Xxxxx & Xxxx, 00 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx at 10:00 a.m. on the day specified in such notice or at such
other place, and at such other time or date as the parties hereto may agree. At
the Closing, the Stockholders shall deliver to the Designated Consenting Lender,
as agent for the Consenting Lenders, all of the Shares by delivery of
certificates evidencing such Shares, properly endorsed by the Stockholders and
accompanied by such stock powers and other documents as may be necessary to
transfer record ownership of the Shares into the Designated Consenting Lender's
name on the stock transfer books of Toy Biz, together with evidence of payment
of all applicable transfer and documentary stamp taxes and other fees. At the
time of the Closing, Xxxxx Xxxxxxxxxx agrees that (i) he shall promptly resign
as a director of Toy Biz, (ii) the Stockholders' Agreement, dated as of March 2,
1995, by and among Arad, the Stockholders, Marvel and Toy Biz (the "Stockholders
Agreement"), if still in effect, shall be terminated as to the Stockholders, and
(iii) the Voting Trust Agreement, dated as of March 2, 1995, by and among
Marvel, Xxxxx Xxxxxxxxxx and Toy Biz (the "Voting Trust Agreement"), if still in
effect, shall terminate, with the
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result that the shares of class B common stock of Toy Biz ("Class B Common
Stock") held by the voting trust established thereunder shall be deemed
transferred to Marvel.
2.3. Payments.
(a) Purchase Price. The purchase and sale of the Shares
pursuant to the Option shall be at a purchase price of $4.00 per Share (the
"Purchase Price"). At the Closing, the Designated Consenting Lender, as agent
for the Consenting Lenders, shall pay to the Stockholders in cash by wire
transfer or by certified or bank check payable to the order of the Stockholders
an amount equal to the product of the Purchase Price multiplied by the number of
Shares sold pursuant to this Section 2.
(b) Adjustments. If at any time the outstanding shares of
Common Stock are changed into a different number of shares or a different class
by reason of any reclassification, recapitalization, split-up, combination,
exchange of shares or readjustment or if a stock dividend thereon is declared
with a record date prior to the termination of this Agreement, then the number
of shares of Common Stock subject to the option and the per share consideration
to be paid by the Designated Consenting Lender, upon exercise of the Option (but
not the total purchase price) shall be appropriately and equitably adjusted so
that the Designated Consenting Lender shall receive upon exercise of the Option
the number and class of shares or other securities or property that the
Designated Consenting Lender would have received in respect of the Shares that
the Designated Consenting Lender is entitled to purchase upon exercise of the
Option if the Option had been exercised immediately prior to such event.
3. Representations and Warranties of the
Stockholders. The Stockholders, jointly and severally, represent
and warrant to each of the Consenting Lenders as follows:
3.1. Ownership of Shares. On the date hereof the Shares are,
and on the date of the Closing all Shares owned by the Stockholders on such date
will be, owned of record or beneficially by the Stockholders, free and clear of
all liens, charges, encumbrances, voting agreements or commitments of any kind,
and constitute, and will constitute, all of the shares of Common Stock or
preferred stock of Toy Biz owned of record or beneficially by the Stockholders.
The Stockholders do not have any options, warrants or rights to purchase or
acquire, any additional shares of Common Stock or preferred stock of Toy Biz.
3.2. Power; Binding Agreement; Non-Contravention. The
Stockholders have full legal right, power and authority to enter into and
perform all of their obligations under this Agreement. This Agreement has been
duly executed and delivered by the
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Stockholders and constitutes a legal, valid and binding agreement of the
Stockholders, enforceable in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium and similar laws, now or hereafter in effect, affecting creditors'
rights and remedies generally or general principles of equity. Neither the
execution of this Agreement nor the consummation by the Stockholders of the
transactions contemplated hereby will (i) if the Stockholder is an entity,
conflict with or result in any breach of any provision of the certificate of
incorporation, by-laws or similar governing documents of such Stockholder, (ii)
require any consent or approval of or filing with any governmental or other
regulatory body except for the filings required under the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended (the "HSR Act"), and filings
required pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the rules and regulations promulgated thereunder or (iii)
violate any order, writ, injunction, decree, statute, rule or regulation
applicable to the Stockholders or any of their properties or assets. The
execution delivery and performance of this Agreement by the Stockholders do not
breach, violate, conflict with or constitute a default under any material
agreement to which any of the Stockholders is a party.
3.3. Shares. The Stockholders have, and on the date of the
Closing hereunder the Stockholders will have, good, valid and marketable title
to the Shares free and clear of all liens, encumbrances, restrictions and claims
of every kind (other than the encumbrance created by this Agreement). There are
no outstanding options, warrants or rights to purchase or acquire, or agreements
relating to, the Shares (other than this Agreement or as disclosed herein).
3.4. Title. The delivery of the Shares to the Designated
Consenting Lender, as agent for the Consenting Lenders, pursuant to Section 2
will transfer to the Consenting Lenders good, valid and marketable title to the
Shares, free of all liens, encumbrances, restrictions and claims of every kind.
3.5. Finder's Fees. No person is, or will be, entitled to any
commission or finder's fees from the Stockholders in connection with this
Agreement or the transactions contemplated hereby.
3.6. No Ownership of Marvel Claims. The Stockholders do not
own or have any interest of any kind in respect of (including, without
limitation, any control thereof) directly or indirectly, any Claims against, or
Equity Interests in, any of the Debtors (as those terms are defined in the Plan
of Reorganization) except as disclosed on Schedule 3.6 included in the
Disclosure Schedule.
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The Consenting Lenders acknowledge that Toy Biz is engaged in
litigation with Marvel concerning the status of Toy Biz' class B common stock
and its stockholders agreement (the "Stockholder Agreement Litigation"). The
representations in this Section 3 are qualified by the Stockholder Agreement
Litigation solely with respect to the Stockholders' ability to vote the Shares.
4. Conditions to Closing. (a) The obligations of the parties
to close hereunder shall be subject to the conditions that there shall be no
preliminary or permanent injunction or other order issued by any court of
competent jurisdiction in effect which prohibits the consummation of the
transactions contemplated herein. Each of the Stockholders and the Consenting
Lenders agree that they will not seek, will oppose, and will seek the immediate
lifting of, any such injunction or order.
(b) The obligation of the Consenting Lenders to close the
exercise of the Option pursuant to Section 2 shall be subject to the additional
condition that all representations and warranties of the Stockholders shall be
true and correct in all material respects as of the date hereof and at and as of
the Closing, with the same force and effect as though made on and as of the
Closing.
5. Termination. This Agreement (other than the provisions of
Section 7) shall terminate on the earlier of: (i) the Effective Time (as defined
in the Merger Agreement), (ii) the termination of the Master Agreement for a
reason other than (x) a Toy Biz Breach Event which is not a New Management
Breach, or (y) a Stockholder Breach Event, or (iii) 90 days after the
termination of the Master Agreement as a result of (x) a Toy Biz Breach Event
which is not a New Management Breach, or (y) a Stockholder Breach Event,
provided that if there is a temporary restraining order or preliminary
injunction issued by a court of competent jurisdiction in effect on that 90th
day which prohibits the exercise of the Option, that 90 day period shall be
extended for an additional 60 days to a total of 150 days after the termination
of the Master Agreement.
6. Expenses. Each party hereto will pay all of its expenses in
connection with the transactions contemplated by this Agreement, including,
without limitation, the fees and expenses of its counsel and other advisers.
7. Certain Covenants of the Stockholders. (i) Except in
accordance with the provisions of this Agreement, the Stockholders agree, while
this Agreement is in effect, that they shall not:
(a) sell, transfer, pledge, encumber, assign or
otherwise dispose of, or enter into any contract, option or
639613.12
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other arrangement or understanding with respect to the sale, transfer,
pledge, encumbrance, assignment or other disposition of, any of the
Shares except pursuant to this Agreement;
(b) grant any proxies (other than the proxy granted
hereunder), deposit any Shares into a voting trust or enter into a
voting agreement or otherwise transfer or convey any voting rights with
respect to any Shares;
(c) solicit or initiate, or encourage or support the
submission of, any plan of reorganization with respect to Marvel, other
than the Plan of Reorganization contemplated by the Master Agreement;
(d) take any action, directly or indirectly, in conflict or
inconsistent with the Stockholders' obligations hereunder;
(e) acquire, directly or indirectly, any Claims against, any
interest therein, or Equity Interests in, any of the Debtors; or
(f) take any action, directly or indirectly, that would cause
Toy Biz to breach or fail in any material respect to perform or comply
with any of its covenants and agreements contained in the Master
Agreement or to breach its representations and warranties contained in
the Master Agreement in any material respect.
(ii) Each of the Stockholders agrees, while this Agreement is
in effect, to promptly notify the Designated Consenting Lender of the number of
any new shares of Common Stock acquired by such Stockholder after the date
hereof.
8. Survival of Representations and Warranties. All
representations, warranties, covenants and agreements made by any of the
Stockholders in this Agreement shall survive the Closing hereunder and any
investigation at any time made by or on behalf of any party.
9. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally,
telecopied (which is confirmed) or sent by an overnight courier service, such as
Federal Express, to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
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If to any Consenting Lender:
To the address of that
Consenting Lender set forth
adjacent to the signature of
that Consenting Lender on
the signature pages to this
Agreement
with a copy to:
Xxxxx Xxxxxxxx
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
and
if to the Stockholders, to:
Xxxxx Xxxxxxxxxx
X.X. Xxx 0000
Xxxx Xxxxx, Xxxxxxx 00000-0000
Telephone No.:
Telecopy No.:
with copies to:
Xxxxxx Xxxxxx
Stroock & Stroock & Xxxxx
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
and:
Xxxxxxxx Xxxxxxx
Battle Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
10. Entire Agreement. This Agreement, together with the
documents expressly referred to herein, constitutes the entire agreement among
the parties hereto with respect to the subject matter contained herein and
supersedes all prior
639613.12
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agreements and understandings among the parties with respect to
such subject matter.
11. Amendment; Waiver; Action of Majority of the Consenting
Lenders. This Agreement may be modified, amended, altered, supplemented or
waived only in a writing signed by the Stockholders and by all Consenting
Lenders. A "Majority of the Consenting Lenders" means Consenting Lenders who
hold a majority in principal amount of the Fixed Senior Secured Claims (as
defined in the Plan of Reorganization) held by all of the Consenting Lenders as
shown on Consenting Lender Execution Pages signed by the Consenting Lenders.
12. Assignment. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns. This Agreement and the rights of the Consenting Lenders hereunder may
be assigned by the Consenting Lenders without the prior written consent of any
of the Stockholders.
13. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without giving
effect to the principles of conflicts of law thereof.
14. Remedies.
14.1. Specific Performance and Liquidated Damages. The parties
agree that it would be difficult, if not impossible, to calculate the damages
that would be suffered by the Consenting Lenders as a result of a breach of this
Agreement by the Stockholders or a Toy Biz Breach Event and that the Consenting
Lenders would suffer irreparable damage in the event that any of the provisions
of this Agreement were not performed in accordance with their specific terms or
were otherwise breached. It is accordingly agreed that:
(a) The Consenting Lenders shall be entitled to an injunction
or injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any court of the United States
located in the state of Delaware or New York or in any Delaware state court. The
parties agree that the foregoing remedies of specific performance are not
exclusive and are in addition to the right of the Consenting Lenders to seek any
other remedies to which they are entitled at law or in equity.
(b) Upon the occurrence of a Toy Biz Breach Event, the
Consenting Lenders shall be entitled to the payment of liquidated damages from
the Stockholders and Arad, on a joint and several basis, in the aggregate amount
of $10,000,000 if the Consenting Lenders do not receive the shares of Class B
common stock, and
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the super-voting rights associated therewith, as provided in Article 6 of the
Master Agreement, provided that if there has not been a Stockholder Breach
Event, the Stockholders shall have no liability for such liquidated damages if a
change in control of Toy Biz has occurred as a result of an adverse ruling in
the Stockholder Agreement Litigation. The payment of such liquidated damages
shall be in lieu of any other claim for money damages by the Consenting Lenders
against any of the Stockholders and Arad as a result of the Toy Biz Breach
Event, but shall be in addition to the right of the Consenting Lenders to seek
any remedies to which they are entitled against Toy Biz and, in the event of a
Stockholder Breach Event, against the Stockholders.
15. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original and all of
which together shall constitute one and the same document.
16. Severability. Any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in another jurisdiction. If any
provision of this Agreement is so broad as to be unenforceable, such provision
shall be interpreted to be only so broad as is enforceable.
17. Further Assurances. Each party hereto shall execute and
deliver such additional documents as may be necessary or desirable to consummate
the transactions contemplated by this Agreement.
18. Third-Party Beneficiaries; No Impairment of Stockholder
Agreement Litigation. Nothing in this Agreement, expressed or implied, shall be
construed to give any person other than the parties hereto any legal or
equitable right, remedy or claim under or by reason of this Agreement or any
provision contained herein or be construed as an admission of any fact or
conclusion of law by Toy Biz or any of the Stockholders with respect to any
issue in the Stockholder Agreement Litigation, or in any other legal action
which is pending now or at any time in the future.
19. Legend. As soon as practicable after the execution of this
Agreement, the Stockholders shall cause the following legend to be placed on the
certificates representing the Shares:
The shares of common stock represented by this certificate are subject
to the terms of a Proxy and Stock Option
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Agreement, dated as of October 7, 1997, by and among Xxxxx Xxxxxxxxxx,
Xxxxx Xxxxxxxxxx T.A., Zib Inc. and the Consenting Lenders who are
parties thereto (the "Agreement"), and are held and may not be
transferred or encumbered, except in accordance therewith. No
registration or transfer will be recorded on the books of Toy Biz, Inc.
unless the transfer is made to a transferee who agrees to be bound by
the Agreement.
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IN WITNESS WHEREOF, the Consenting Lenders have caused this
Proxy and Stock Option Agreement to be executed by their respective duly
authorized officers by their execution and delivery of a Consenting Lender
Execution Page as described in the preamble to this Agreement, and the
Stockholders have duly executed this Agreement, as of the date and year first
above written.
STOCKHOLDERS:
XXXXX XXXXXXXXXX
-------------------------------
ZIB INC.
By:
----------------------------
Xxxxx Xxxxxxxxxx,
XXXXX XXXXXXXXXX T.A.
By:
----------------------------
Xxxxx Xxxxxxxxxx,
Trustee
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EXHIBIT 1
CONSENTING LENDER EXECUTION PAGE
By signing below, the undersigned is hereby executing and agreeing to be bound
by the (i) Master Agreement, dated as of October 7, 1997, by and among Toy Biz,
Inc. and certain secured creditors of Marvel Entertainment Group, Inc. and
certain of its direct and indirect subsidiaries (the "Marvel Debtors"), (ii)
Proxy and Stock Option Agreement, dated as of October 7, 1997, by and among
Xxxxx Xxxxxxxxxx. Xxxxx Xxxxxxxxxx, T.A. and Zib, Inc. and certain secured
creditors of the Marvel Debtors, and (iii) Proxy and Stock Option Agreement,
dated as of October 7, 1997, by and among Xxx Xxxx and certain secured creditors
of the Marvel Debtors. This Consenting Lender Execution Page shall be deemed to
be a signature page to each of the agreements listed above and the undersigned
shall be deemed to have signed each as a "Consenting Lender."
Name of Consenting Lender:
---------------------------------
By:
-----------------------------
Name:
Title:
Address for Notices:
--------------------------------
--------------------------------
--------------------------------
Telecopy No.:
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Telecopy No.:
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