EXHIBIIT 10.5
EXECUTION COPY
WARRANT SHARES REGISTRATION RIGHTS AGREEMENT
WARRANT SHARES REGISTRATION RIGHTS AGREEMENT, dated as of
November 30, 2001, (this "Agreement"), between Marvel Enterprises, Inc., a
Delaware corporation (the "Company"), and Xxxxx Xxxxxxxxxx ("Xxxxxxxxxx").
WHEREAS, the Company and Xxxxxxxxxx are entering into that
certain Warrant Agreement, dated the date hereof (the "Warrant Agreement"); and
WHEREAS, the Warrant Agreement provides that the Warrant Shares
shall have the registration rights set forth herein.
NOW, THEREFORE, in consideration of the foregoing and of the
mutual agreements contained herein and in the Warrant Agreement, the Company and
Xxxxxxxxxx hereby agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized defined
terms shall have the following meanings:
"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.
"Business Day" means any Monday, Tuesday, Wednesday, Thursday or
Friday that is not a day on which banking institutions in the City of New York
are authorized by law, regulation or executive order to close.
"Closing Date" means the date hereof.
"Commission" means the United States Securities and Exchange
Commission.
"Common Stock" means the common stock, par value $.01 per share,
of the Company.
"Common Shares" means the shares of the Common Stock of the
Company.
"Company" has the meaning specified in the preamble to this
Agreement.
"Company Shares" has the meaning specified in Section 2 hereof.
"Cutback Notice" has the meaning specified in Section 2 hereof.
"Holders" means the record holders of the Warrants and the
holders of Common Shares (or other securities) received upon exercise thereof.
"Includible Secondary Shares" has the meaning specified in
Section 2 hereof.
"Includible Shares" has the meaning specified in Section 2
hereof.
"managing underwriter" has the meaning specified in Section 2
hereof.
"Opinion" has the meaning specified in Section 3 hereof.
"Other Shares" has the meaning specified in Section 2 hereof.
"Other Selling Stockholders" has the meaning specified in Section
2 hereof.
"Xxxxxxxxxx" has the meaning specified in the preamble to this
Agreement.
"Piggy-Back Registration Rights" has the meaning specified in
Section 2 hereof.
"Primary Registration" has the meaning specified in Section 2
hereof.
"Registration Statement" has the meaning specified in Section 2
hereof.
"Requesting Stockholder" has the meaning specified in Section 2
hereof.
"Securities Act" means the United States Securities Act of 1933,
as amended.
"Underwritten Offering" means a registered offering in which
securities are sold to one or more underwriters on a firm commitment basis for
reoffering to the public.
"Warrants" has the meaning specified in the recitals to this
Agreement.
"Warrant Registration Statement" has the meaning specified in
Section 3 hereof.
"Warrant Shares" has the meaning specified in Section 2 hereof.
2. Piggy-Back Registration Rights.
(a) If the Company proposes to file a Registration Statement with
the Commission respecting an Underwritten Offering of any shares of any class of
its equity securities for its own account or for the account of a holder of
securities of the Company pursuant to registration rights granted by the Company
(a "Requesting Stockholder"), the Company shall give prompt written notice to
all the Holders at least 10 Business Days prior to the initial filing of the
registration statement relating to such offering (the "Registration Statement").
Each such Holder shall have the right, within 5 Business Days after delivery of
such notice, to request in writing that the Company include all or a portion of
the Common Shares issued or issuable upon exercise of such Holder's Warrants or
such other securities as shall be issued or issuable upon the exercise of the
Warrants (the "Warrant Shares") in such Registration Statement ("Piggy-back
Registration Rights"). The Company shall include in such
2
Underwritten Offering all of the Warrant Shares that a Holder has requested be
included, unless the underwriter for such offering (in either case, the
"managing underwriter") delivers a notice (a "Cutback Notice") pursuant to
Section 2(b) or 2(c) hereof. The managing underwriter may deliver one or more
Cutback Notices at any time prior to the execution of the underwriting agreement
for such Underwritten Offering.
(b) If the proposed Underwritten Offering is an Underwritten
Offering by the Company on a primary basis (a "Primary Registration"), the
provisions of this Section 2(b) shall be applicable if the managing underwriter
delivers a Cutback Notice stating that, in its opinion, the number of securities
to be offered for the account of the Company ("Company Shares"), plus the
Warrant Shares that the Holders have requested to be sold therein, plus the
securities (the "Other Shares") that selling stockholders (other than the
Holders) exercising similar piggy-back registration rights with respect to such
offering ("Other Selling Stockholders") propose to sell therein, exceeds the
maximum number of shares specified by the managing underwriter in such Cutback
Notice that may be distributed without having a material adverse effect on the
price, timing or distribution of the Company Shares. Such maximum number of
shares that may be so sold, excluding the Company Shares, are referred to as the
"Includible Shares."
If the managing underwriter delivers such Cutback Notice, the
Company shall be entitled to include all of the Company Shares in the
Underwritten Offering in priority to the inclusion of any Other Shares or
Warrant Shares. Each requesting Holder and Other Selling Stockholder shall then
be entitled to include in such offering up to its pro rata portion of the
Includible Shares, based on the number of securities requested to be sold by the
Holders and the Other Selling Stockholders. No shareholder that proposes to sell
Warrant Shares or Other Shares in the proposed offering may sell any such shares
therein unless all Company Shares are so included.
(c) If the proposed Underwritten Offering is an Underwritten
Offering pursuant to demand registration rights exercised by a Requesting
Stockholder, then the provisions of this Section 2(c) shall be applicable if the
managing underwriter delivers a Cutback Notice stating that, in its opinion, the
aggregate number of Company Shares, Warrant Shares and Other Shares requested to
be included in such offering therein exceeds the maximum number of shares (the
"Includible Secondary Shares") specified by the managing underwriter in such
Cutback Notice that may be distributed without having a material adverse effect
on the price, timing and distribution of the Common Shares being distributed. If
the managing underwriter delivers such Cutback Notice, the Company will include
in such registration, (i) first, the securities requested to be included therein
by a Requesting Stockholder exercising demand registration rights, (ii) second,
the securities requested to be included therein by the Company, if any, and
(iii) third, each requesting Holder's and Other Selling Stockholder's pro rata
portion of the Includible Secondary Shares, based on the number of securities
requested to be sold by such Holders and Other Selling Stockholders.
(d) The underwriting agreement for such Underwritten Offering
shall provide that each requesting Holder shall have the right to sell its
Warrant Shares to the underwriters and that the underwriters shall purchase the
Warrant Shares at the price paid by the underwriters for the Common Shares sold
by the Company and/or selling stockholders, as the case may be.
3
3. Shelf Registration.
(a) The Company shall use its commercially reasonable efforts to
cause to be filed pursuant to Rule 415 under the Securities Act a shelf
registration statement on the appropriate form (the "Warrant Registration
Statement") covering the resale of the Warrant Shares, and shall use its
commercially reasonable efforts to cause the Warrant Registration Statement to
become effective under the Securities Act within six months and two weeks after
the Closing Date. The Company shall use commercially reasonable efforts to keep
the Warrant Registration Statement continuously effective until such time as all
Warrants have been exercised or have expired. Prior to filing the Warrant
Registration Statement or any amendment thereto, the Company shall provide a
copy thereof to Xxxxxxxxxx and afford him a reasonable time to comment thereon.
(b) With respect to the registration under the Warrant
Registration Statement of the resale of the Warrant Shares, the Company agrees
to:
(i) make available for inspection by a representative of the
Holders, any underwriter participating in any disposition pursuant to
such Warrant Registration Statement and attorneys and accountants
designated by the Holders, at reasonable times and in a reasonable
manner, financial and other records, documents and properties of the
Company that are pertinent to the conduct of due diligence customary for
an underwritten offering, and cause the officers, directors and
employees of the Company to supply all information reasonably requested
by any such representative, underwriter, attorney or accountant in
connection with such Warrant Registration Statement;
(ii) use its commercially reasonable efforts to cause all Warrant
Shares sold under a Warrant Registration Statement to be listed on any
securities exchange or any automated quotation system on which similar
securities issued by the Company are then listed if requested by the
holders of a majority of the Warrant Shares, to the extent such Warrant
Shares satisfy applicable listing requirements;
(iii) provide a reasonable number of copies of the prospectus
included in such Warrant Registration Statement to Holders that are
selling Warrant Shares pursuant to such Warrant Registration Statement;
(iv) cause to be provided to the underwriter, if any, of Warrant
Shares a customary "10b-5" opinion of counsel and a customary
"cold-comfort" letter of independent auditors with respect to each Form
10-K and Form 10-Q, including any amendments thereto, that is
incorporated by reference in such Warrant Registration Statement;
(v) notify Xxxxxxxxxx (A) when the Warrant Registration Statement
has become effective and when any post-effective amendment thereto has
been filed and becomes effective, (B) of any request by the Commission
or any state securities authority for amendments and supplements to the
Warrant Registration Statement or of any material request by the
Commission or any state securities authority for additional information
after the Warrant Registration Statement has become effective, (C) of
the
4
issuance by the Commission or any state securities authority of any stop
order suspending the effectiveness of such Warrant Registration
Statement or the initiation of any proceedings for that purpose, and (D)
if, between the effective date of the Warrant Registration Shelf and the
closing of any sale of Warrant Shares covered thereby, the
representations and warranties of the Company contained in any
underwriting agreement, securities sales agreement or other similar
agreement, including this Agreement, relating to disclosure cease to be
true and correct in any material respect to the suspension of the
qualification of the Warrants or Warrant Shares for sale in any
jurisdiction or the initiation of any proceeding for such purpose, and
(E) of the happening of any event during the period the Warrant
Registration Statement is effective such that such Warrant Registration
Statement or the related prospectus contains an untrue statement of a
material fact or omits to state a material fact required to be stated
therein, in the light of the circumstances under which they were made,
or necessary to make statements therein not misleading. The Holders
hereby agree to suspend use of the prospectus contained in a Warrant
Registration Statement upon receipt of such notice under clause (D)
above until the Company has amended or supplemented such prospectus to
correct such misstatement or omission.
4. Suspension.
(a) Subject to Section 4(c) and the final sentence of this
Section 4(a), in the case of any Underwritten Offering by the Company, whether
for its own account or for the account of a holder of securities of the Company
pursuant to registration rights granted by the Company, each Holder agrees, if
and to the extent requested in writing by the managing underwriter or
underwriters administering such offering as promptly as reasonably practicable
prior to the commencement of the 10-day period referred to below, not to effect
any public sale or distribution of securities of the Company except as part of
such Underwritten Offering, during the period beginning ten (10) days prior to
the closing date of such Underwritten Offering and during the period ending on
the earlier of (i) sixty (60) days after such closing date and (ii) the date
such sale or distribution is permitted by such managing underwriter or
underwriters.
(b) Subject to Section 4(c), the Company shall have the privilege
to suspend availability of the Warrant Registration Statement and the related
prospectus for up to 45 consecutive days if the Board determines in good faith
that such suspension is necessary and provides notice of such determination to
the Holders at their addresses appearing in the register of Warrants maintained
by Xxxxxxxxxx. Notice of such suspension shall be given promptly to Xxxxxxxxxx.
(c) In no event shall the restrictions under this Section 4,
pursuant to one or more elections under Section 4(a) or Section 4(b), remain in
effect for more than one hundred twenty (120) days in the aggregate in any
consecutive 365-day period.
5. Blue Sky.
The Company shall use its commercially reasonable efforts to
register or qualify the Warrant Shares proposed to be sold pursuant to the
Warrant Registration Statement under all applicable securities or "blue sky"
laws of all jurisdictions in the United States in which
5
any Holder of Warrants may resell the Warrant Shares and shall use its
commercially reasonable efforts to maintain such registration or qualification
through the date upon which all Warrants have been exercised or all Warrant
Shares have been resold, as the case may be, under the Warrant Registration
Statement; provided, however, that the Company shall not be required to (i)
qualify as a foreign corporation or as a broker or a dealer in securities in any
jurisdiction where it would not otherwise be required to qualify but for this
Section 5, (ii) file any general consent to service of process or (iii) subject
itself to taxation in any jurisdiction if it is not otherwise so subject.
6. Accuracy of Disclosure.
The Company represents and warrants to each Holder (and each
beneficial owner of a Warrant or Warrant Share) and agrees for the benefit of
each Holder (and each beneficial owner of a Warrant or Warrant Share) that,
except during any period in which the availability of the Warrant Registration
Statement has been suspended, (i) the Warrant Registration Statement and the
documents incorporated by reference therein will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein not misleading; and (ii) the prospectus delivered to such
Holder pursuant to which such Holder resells its Warrant Shares and the
documents incorporated by reference therein will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
7. Indemnity.
The Company hereby agrees to indemnify each beneficial owner of a
Warrant or Warrant Share and each person, if any, who controls any beneficial
owner of a Warrant or Warrant Share within the meaning of either Section 15 of
the Securities Act or Section 20 of the Securities Exchange Act of 1934 (the
"Exchange Act"), or is under common control with, or is controlled by, any
beneficial owner of a Warrant (whether or not it is, at the time the indemnity
provided for in this Section 7 is sought, such a beneficial owner), from and
against all losses, damages or liabilities which such beneficial owner or any
such controlling or affiliated person suffers as a result of any breach, on the
date of any resale of any Warrant Share by such holder pursuant to the Warrant
Registration Statement, of the representations, warranties or agreements
contained in Section 6; provided, however, that the Company will not be liable
to any holder in such case as to the extent that any such loss, damage or
liability arises out of or is based upon (a) any untrue statement or omission
made in such Warrant Registration Statement or amendment or supplement thereto
concerning Xxxxxxxxxx or any of his affiliates, other than the Company and its
subsidiaries, in reliance upon and in conformity with the written information
furnished to the Company by such holder or (b) any untrue statement or alleged
untrue statement of a material fact contained in, or any omission or alleged
omission of a material fact from, a Warrant Registration Statement if (i) such
Warrant Registration Statement and the related prospectus have been later
amended or supplemented in a manner that corrects the untrue statement or
alleged untrue statement, omission or alleged omission, which is the basis of
the loss, liability, claim, damage or expense for which indemnification is
sought, (ii) a copy of such amendment or supplement had been timely provided to
the holder and had not been sent to or given to the purchaser at or prior to
confirmation of sale to such purchaser and the holder shall have been under an
obligation to deliver such amendment or supplement for the holder and had not
been
6
sent to or given to a purchaser at or prior to confirmation of sale to such
purchaser and the holder shall have been under an obligation to deliver such
amendment or supplement, and (iii) there would have been no such liability but
for such failure to deliver such amendment or supplement by the holder. Each
beneficial owner of a Warrant Share sold pursuant to a Warrant Registration
Statement, by accepting its beneficial ownership of a Warrant, hereby (i) agrees
to provide the Company with information with respect to it that the Company
reasonably requests in connection with any Warrant Registration Statement and
(ii) agrees, severally and not jointly, to indemnify the Company, its directors
and officers and each person, if any, who controls the Company within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act against any liability incurred by it or such controlling person as a result
of any misstatement of information provided by such beneficial owner to the
Company in writing expressly for inclusion in the Warrant Registration
Statement.
8. Expenses.
All expenses incident to the Company's performance of or
compliance with its obligations under this Agreement will be borne by the
Company, regardless of whether a Warrant Registration Statement becomes
effective, including without limitation (i) all Commission or National
Association of Securities Dealers, Inc. registration and filing fees, (ii) all
reasonable fees and expenses incurred in connection with compliance with state
securities or "blue sky" laws, (iii) all reasonable expenses of any persons
incurred by or on behalf of the Company in preparing or assisting in preparing,
word processing, printing and distributing any registration statement, any
prospectus, any amendments or supplements thereto and other documents relating
to the performance of and compliance with this Agreement, (iv) the reasonable
fees and disbursements of counsel for the Company, and (v) the fees and
disbursements, if any, of the Auditors. The Company will not be responsible for
(i) Xxxxxxxxxx'x or the Holders' share of underwriting discounts and
commissions, or (ii) the fees (including legal fees and expenses) and
disbursements of Xxxxxxxxxx or the Holders.
9. Miscellaneous.
(a) No Inconsistent Agreements. Each of the Company and
Xxxxxxxxxx represent to the other that it has not entered into, and agrees that
on or after the date of this Agreement it will not enter into, any agreement
which is inconsistent with the rights granted to the Holders of Warrants or
Warrant Shares in this Agreement or otherwise conflicts with the provisions
hereof. The Company represents that the rights granted to the Holders hereunder
do not in any way conflict with and are not inconsistent with the rights granted
to the holders of the Company's other issued and outstanding securities under
any agreements.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company and Xxxxxxxxxx have obtained the written
consent of holders of at least a majority of the Warrant Shares affected by such
amendment, modification, supplement, waiver or consent; provided that any
amendment, modification or supplement to this Agreement which, in the good faith
opinion of the Board (and evidenced by a resolution of the Board), does not
adversely affect any Holder, shall not be subject to such requirement for
written consent.
7
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, or any courier guaranteeing overnight delivery (i) if to a
Holder, at the most current address given by such Holder to the Company by means
of a notice given in accordance with the provisions of this Section 9(c); (ii)
if to the Company, initially at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000,
Attention: Xxxxx Xxxxxx, Esq., and thereafter at such other address, notice of
which is given in accordance with the provisions of this Section 9(c); and (iii)
if to Xxxxxxxxxx, initially at X.X. Xxx 0000, Xxxx Xxxxx, XX 00000, with a copy
to Xxxxxxx & Sosensky, LLC, 000 Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000,
Attention: Xxxx Xxxxxxx, Esq., and thereafter at such other address, notice of
which is given in accordance with the provisions of this Section 9(c).
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed; and
on the next Business Day if timely delivered to an air courier guaranteeing
overnight delivery.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation, subsequent Holders; provided that
nothing herein shall be deemed to permit any assignment, transfer or other
disposition of Warrants. If any transferee of any Holder shall acquire Warrants,
in any manner, whether by operation of law or otherwise, such Warrants shall be
held subject to all of the terms of this Agreement, and by taking and holding
such Warrants such person shall be conclusively deemed to have agreed to be
bound by and to perform all of the terms and provisions of this Agreement and
such person shall be entitled to receive the benefits hereof.
(e) Purchases and Sales of Warrants. The Company shall not, and
shall use its best efforts to cause its affiliates (as defined in Rule 405 under
the Securities Act) not to, purchase and then resell or otherwise transfer any
Warrants other than Warrants acquired and cancelled.
(f) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company and
Xxxxxxxxxx, 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.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed by the laws
of the State of New York.
8
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(Signature Page Follows)
9
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
MARVEL ENTERPRISES, INC.
By ______________________________
Name:
Title:
By /s/ Xxxxx Xxxxxxxxxx
------------------------------
Name: Xxxxx Xxxxxxxxxx
10
WARRANT REGISTRATION RIGHTS AGREEMENT
between
MARVEL ENTERPRISES, INC.
and
XXXXX XXXXXXXXXX
Dated as of November 30, 2001
11
