SETTLEMENT AGREEMENT
This Settlement Agreement is made and entered into this 31st day of July 1998
by and between NBA Properties, Inc. ("NBAP"); Marvel Entertainment Group, Inc.
("Marvel"), Fleer Corporation ("Fleer") and Skybox International, Inc.
("Skybox," and together with Marvel and Fleer collectively hereinafter
"Debtors"); Xxxx X. Xxxxxxx, chapter 11 trustee (the "Trustee") for the estates
of the Debtors; and Panini, S.p.A. ("Panini"), a wholly-owned, non-debtor
subsidiary of Marvel.
RECITALS
A. NBAP and Marvel entered into a license agreement dated July 21, 1995, as
subsequently amended (the "License Agreement"), pursuant to which NBAP licensed
to Marvel, and its wholly owned subsidiaries, Fleer, Skybox, and Panini
(collectively the "Licensees") the non-exclusive right to use certain NBA
player likenesses, trademarks and other intellectual property (the "NBA
Marks"), which License Agreement expires on July 31, 1999.
B. Pursuant to the License Agreement, Marvel was obligated to make certain
guaranteed royalty payments and advertising, media and promotional payments.
C. The Debtors filed separate petitions for reorganization under Chapter 11 of
11 U.S.C. ss.101, et seq. ("Bankruptcy Code") on December 27, 1996 (the
"Petition Date") and the cases were procedurally consolidated (the "Bankruptcy
Proceeding"). On November 17, 1997, the United States District Court for the
District of Delaware withdrew the reference to the Bankruptcy Court, and the
Bankruptcy Proceeding is now pending in the United States District Court for
the District of Delaware, (the "Court" or the "Delaware Court") Civil No.
97-638 (RRM).
D. On December 22, 1997, Xxxx X. Xxxxxxx was appointed Trustee for all of the
Debtors and his appointment was approved by the Court on the same date.
E. It is NBAP's position that amounts paid by the Debtors under the License
Agreement are less than the guaranteed minimum royalty payments and
advertising, media and promotional payments due thereunder, and that the
Debtors are therefore in default under their obligations pursuant to the
License Agreement (the "Default"), which positions the Debtors and the Trustee
dispute.
F. It is NBAP's position that Marvel, Fleer, Skybox and Panini are jointly and
severally liable for all amounts owed to NBAP under the License Agreement,
including all payments claimed to be now in default and all amounts scheduled
to become due through the expiration of the License Agreement, which position
the Debtors, the Trustee and Panini dispute.
G. NBAP has asserted claims against the Debtors in the Bankruptcy Proceedings
regarding the License Agreement that are the subject of Proofs of Claims,
including, without limitation, claim numbers 584 through 589, inclusive.
H. On October 14, 1997, NBAP commenced a lawsuit against Panini, titled NBA
Properties, Inc. v. Panini S.p.A., Civ. No. 97-7603 (LAP) (the "Panini
Litigation"), in the United States District Court for the Southern District of
New York ("Southern District"), in which NBAP seeks payment from Panini for
substantially all of the obligations due to NBAP under the License Agreement
through its date of expiration, including royalties.
I. On December 9, 1997, Marvel, as debtor-in-possession and prior to the
appointment of the Trustee, commenced an adversary proceeding in the Delaware
Court titled Marvel Entertainment Group, Inc. et al v. NBA Properties, Inc.,
Civ. No. 97-650 (RRM) (the "Adversary Proceeding"), seeking to enjoin further
proceedings in the Panini Litigation.
J. It is the Trustee's position that the claims asserted by NBAP in the Panini
Litigation are without merit and that the Panini Litigation is disruptive of
and will interfere with the Bankruptcy Proceedings and the reorganization of
the Debtors therein. Accordingly, the Trustee has continued the Adversary
Proceeding.
K. The Official Committee of Unsecured Creditors in the Bankruptcy Proceeding
(the "Committee"), has taken the position that certain sums that have been paid
to unsecured
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creditors, which may include payments to NBAP under the License Agreement
pursuant to an Order of the Court dated December 27, 1996 (the "Ordinary Course
Order"), were improperly paid and may be subject to disgorgement. The Committee
has moved before the Court pursuant to Federal Rule of Civil Procedure 60(b)
(the "60(b) Motion", and together with the Panini Litigation and the Adversary
Proceeding, collectively, the "Litigations"), for relief from the Ordinary
Course Order. The Committee has indicated that, upon the Court's approval of a
certain settlement agreement effecting consensual amendments to the Plan, the
Committee will consent to this Settlement Agreement and waive any objection to
a motion for an Order of the Court approving this Settlement.
L. The Third Amended Plan of Reorganization (the "Plan") has been proposed by
Toy Biz, Inc., and certain of the Secured Lenders(1) in the Bankruptcy
Proceeding (the "Plan Proponents"). The Plan provides that the License
Agreement is rejected. Upon Consummation, Toy Biz, Inc. will change its name to
Newco and Newco will become the parent and sole shareholder of Marvel, Fleer
and Skybox. Marvel will remain as the parent and sole shareholder of Panini. A
confirmation hearing has been held by the Court, and by Order dated July 13,
1998, the Court has confirmed the Plan.
M. NBAP and Marvel, with the approval of the Trustee and in consultation with
Fleer, Skybox, Panini and the Plan Proponents, recognize the mutual
desirability of a continued licensing relationship between NBAP and Marvel as
reorganized pursuant to the Plan. In addition, each of the parties to this
Settlement Agreement desires to achieve final resolution of the various claims
between them, and to avoid the cost and uncertainty of litigating those claims.
In accordance with the foregoing, each of the parties to this Settlement
Agreement have reached an amicable resolution of all of the disputes and claims
between them pursuant to the terms and conditions set forth herein.
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(1) Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed to those terms in the Third Amended Plan or any further
amended plan.
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AGREEMENT
NOW, THEREFORE, in consideration of their mutual promises and other good
and valuable consideration, receipt of which is acknowledged, the parties
intending to be bound, agree as follows:
1. The Amended License Agreement. Marvel, as authorized by the Trustee, and
NBAP have amended the License Agreement upon the terms and conditions set forth
in an amended license agreement, dated July 31, 1998, (the "Amended License
Agreement") (attached hereto as Exhibit A) and in this Settlement Agreement.
The Amended License Agreement shall be deemed to modify and replace all of the
terms of the License Agreement. Marvel, the Trustee and NBAP further agree that
the Amended License Agreement (or any modification thereof which is approved by
the Trustee, the Plan Proponents, NBAP and the Court) shall be assumed (the
"Assumption") by Marvel, and shall be binding upon Marvel, upon the
Consummation Date of the Plan.
2. Effective Date of the Amended License Agreement. The effective date of the
Amended License Agreement shall be the Consummation Date of the Plan; provided
however that, subject to the occurrence of any one of the Contingencies as
defined in paragraph 7 of this Settlement Agreement, NBAP and Marvel shall
perform under the Amended License Agreement, and the obligations of the parties
to the Amended License Agreement, including Marvel's earned and minimum royalty
obligations, shall accrue beginning on August 1, 1998, as if the Amended
License Agreement was in full force and effect from that date; provided further
however, that, to the extent the minimum guaranteed royalty obligations that
accrue and become due and payable under the Amended License Agreement from
August 1, 1998, until the Consummation Date of the Plan are in excess of those
royalty obligations calculated under the royalty rate(s) in the Amended License
Agreement, those excess payments shall be deferred to no later than the
Consummation Date.
3. Payments. It is agreed, and the Order of Approval (as hereafter defined)
shall provide, that as full and total cure of the Default and all other
defaults (whether or not identified herein)
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under the License Agreement payable upon the Assumption and effective date of
the Amended License Agreement:
(i) On or before the Consummation Date, Newco will pay the sum of $11
million to NBAP, and it is agreed that this payment shall be the obligation of
Newco and not of any other person or entity; and
(ii) On or before the Consummation Date, Newco and Panini will pay to
Street Hoops International, NBA Entertainment, Inc., and NBAP, the amounts due
under invoices for photography products and services and media purchases
received by the Debtors, and/or Panini, in accordance with the schedule
attached hereto as Exhibit B.
(iii) Effective upon receipt of the payments due under paragraph 3(ii)
of this Settlement Agreement, NBAP hereby indemnifies and unconditionally holds
harmless the Debtors, Panini, the Trustee, and Newco, and each of their
respective past and present directors, officers, employees, attorneys,
representatives, successors, assigns and agents, against any and all claims
related to the License Agreement from Street Hoops International, NBA
Entertainment, Inc., or any other NBAP affiliate, to the extent such claim
survives the general releases granted in this Settlement Agreement.
(iv) Newco will pay the sum of $1 million to NBAP on the date one year
after the Consummation Date (the "Consummation Anniversary Date") and NBAP will
receive a recognized and allowed general Unsecured Claim in the aggregate
amount of $20 million (the "Allowed Claim") in the Bankruptcy Proceeding. Any
cash received by NBAP prior to the Consummation Anniversary Date in any
distribution respecting the Allowed Claim shall be a credit first against the
$1 million payment due NBAP under this paragraph 3(iv), and thereafter against
Marvel's royalty obligations under the Amended License Agreement. NBAP shall
use commercially reasonable efforts to liquidate any warrants received in any
distribution respecting the Allowed Claim, and any net cash proceeds thereof
received by NBAP prior to the Consummation Anniversary Date shall also be a
credit first against the $1 million payment due NBAP under this paragraph
3(iv), and thereafter against Marvel's royalty obligations under the
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Amended License Agreement. Any distribution received by NBAP respecting the
Allowed Claim after receipt of the $1 million payment under this paragraph
3(iv), whether in cash or in net cash proceeds from the liquidation of
warrants, shall be a credit against Marvel's royalty obligations under the
Amended License Agreement.
(v) Subject to the occurrence of any one of the Contingencies and the
voiding of this Settlement Agreement as set forth in paragraph 7 herein and the
dismissal of the Panini Litigation, it is hereby agreed that all payments to
NBAP prior to the Consummation Date of the Plan, whether pursuant to the
License Agreement, interim agreements, paragraph 2 of this Settlement
Agreement, Orders of the Court or otherwise, are final and irrevocable, and the
Debtors, Newco, Panini and the Trustee waive and release any right to the
repayment to the Debtors' estates or any successor thereto, including the
Litigation Trust established pursuant to the Plan, of any money previously paid
to NBAP and any right under Article 5 of the Bankruptcy Code to avoid and
recover any transfer that may have been received by NBAP.
4. Approval of the Court. The Trustee, as soon as practicable after the
execution of this Settlement Agreement, agrees to file with the Court a motion
for an Order in a form agreeable to all of the parties to this Settlement
Agreement (the "Order of Approval"): (i) approving this Settlement Agreement
pursuant to Federal Rule of Bankruptcy Procedure 9019, (ii) that the Plan be
deemed amended to reflect that the License Agreement has been assumed as
modified by the Amended License Agreement and by the terms of this Settlement
Agreement, and (iii) that the rejection of the License Agreement originally
proposed in the Plan will be deemed withdrawn.
5. Dismissal of Litigations. Upon payment of the amounts set forth in
paragraphs 3(i) and 3(ii) of this Settlement Agreement, the parties agree to
dismiss and to cease any further prosecution of any of the Litigations or any
other litigation now pending between them, in accordance with the schedule and
terms set forth in this paragraph 5. In furtherance of this Settlement
Agreement, it is agreed that no party shall further prosecute any of the
Litigations against each other or against any other person or entity, except as
follows:
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(i) Upon payment of the amounts set forth in paragraphs 3(i) and 3(ii)
of this Settlement Agreement, NBAP, Panini and Newco will execute and cause to
be filed in the Southern District of New York a stipulation of dismissal of the
Panini Litigation in its entirety, pursuant to Federal Rule of Civil Procedure
41(a)(1)(ii) with prejudice and without costs to any party.
(ii) Within one business day of the execution of the stipulation of
dismissal of the Panini Litigation by NBAP, Newco will execute and cause to be
filed in the Delaware Court a notice of voluntary dismissal of the Adversary
Proceeding in its entirety with prejudice and without costs to any party,
pursuant to Federal Rule of Civil Procedure 41(a)(1)(i).
(iii) It is agreed and the Order of Approval shall provide that NBAP is
released from any claims arising out of the 60(b) Motion, to the extent that
any such claims survive the Assumption and the releases granted in this
Settlement Agreement; provided however that the release shall be subject to the
occurrence of any one of the Contingencies and the voiding of this Settlement
Agreement as set forth in paragraph 7, and its sub-paragraphs i, ii, iii and v,
but excepting the occurrence of the Contingency set forth in sub-paragraph
7(iv) and the voiding of the Agreement solely by reason of that Contingency, in
which case the release shall survive the voiding of this Settlement Agreement.
(iv) Upon entry by the Court of the Order of Approval, NBAP agrees that
it will withdraw its objection to the 60(b) motion, provided, however, that
such withdrawal will be without prejudice to NBAP's rights to renew its
objection solely in the event the release granted in paragraph 5(iii) fails to
become or remain effective, pursuant to the provisos therein. Upon the
non-occurence of all of the Contingencies set forth in paragraph 7 of this
Settlement Agreement, NBAP's withdrawal of its objection to the 60(b) motion
shall be with prejudice.
(v) Within 5 days of the execution of this Settlement Agreement, the
parties will execute consent orders staying both the Panini Litigation and the
Adversary Proceeding (or otherwise suspending them or placing them on inactive
status as the courts may direct), and submit these consent orders for
endorsement by the Southern District and the Delaware Court
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respectively, which consent orders and resulting stays will terminate and be
lifted by their own terms, without prejudice to any party to prosecute either
of the matters, upon the occurrence of any one of the Contingencies and the
voiding of this Settlement Agreement as set forth in paragraph 7 herein.
(vi) Upon the entry of the Order of Approval and upon payment of the
amounts set forth in paragraphs 3(i) and 3(ii) of this Settlement Agreement,
NBAP agrees that the Allowed Claim will constitute its entire claim in classes
4A through 4I of the Plan and NBAP waives and releases any other claims it has
or may have in classes 4A through 4I of the Plan.
6. Mutual General Release. Upon the entry of the Order of Approval and payment
to NBAP of the amounts set forth in paragraph 3(i) and 3(ii) of this Settlement
Agreement, NBAP, Debtors, the Trustee and Panini hereby mutually release,
forever discharge, and, covenant not to xxx one another, their past and present
directors, partners, managers, officers, shareholders, agents, employees,
attorneys, successors, assigns and any parent, subsidiary or affiliated
corporations, partnerships and other entities, and each of them, separately and
collectively, from and/or for any and all claims, liens, demands, causes of
action, obligations, damages and liabilities, known or unknown, asserted or
unasserted, direct or indirect that each has had in the past, or now has, or
may have in the future against each other for, upon or by reason of any act,
omission, or other matter, cause, or thing whatsoever, from the beginning of
the world to the date hereof, including, without limitation, all matters
arising directly or indirectly out of, or related in any way to the License
Agreement, the Litigations, including, without limitation, those claims that
are the subject of Proofs of Claims (including without limitation claim numbers
584 through 589, inclusive) filed against the Debtors in the Bankruptcy
Proceeding, provided that:
(i) nothing in this mutual general release shall be construed as
releasing, waiving or otherwise discharging claims relating to compliance with
the terms and conditions of this Settlement Agreement, the Amended License
Agreement or the Plan, or any agreement, instrument or other document to be
executed as contemplated by those agreements or the Plan, and further provided
that
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(ii) nothing in this mutual general release shall be construed as
releasing, waiving or otherwise discharging claims belonging to NBAP relating
to any uses of NBAP's intellectual property not authorized by the terms of the
License Agreement or the Amended License Agreement, and further provided that
(iii) nothing in this mutual general release shall be construed as
releasing, waiving or otherwise discharging inter-company claims between the
Debtors, Newco or Panini not related to the License Agreement.
7. Termination of Settlement Agreement. This Settlement Agreement shall be void
ab initio and of no force and effect, the parties will revert to and retain all
of their rights as of the date of this Settlement Agreement and nothing in this
Settlement Agreement, the Motion or the Approval Order will be used to
interpret the License Agreement, upon the happening of any of the following
events (the "Contingencies"):
(i) A Qualified Transaction occurs.
(ii) The Court enters an Order denying the Trustee's motion for an Order
of Approval (the "Denial Order") and such Denial Order becomes final and no
longer appealable, or, in the event of a timely appeal, all avenues of appeal
of the Denial Order are exhausted.
(iii) The Court's Order confirming the Plan is reversed on appeal and
that reversal, or, in the case of remand a subsequent Order of the Court
denying confirmation, becomes final and no longer appealable, or, in the event
of a timely appeal, all avenues of appeal are exhausted.
(iv) NBAP does not receive the payments provided in paragraphs 3(i) and
3(ii) of this Settlement Agreement by December 15, 1998.
(v) The Consummation Date shall not have occurred on or before November
30, 1998, and either NBAP, the Plan Proponents or the Trustee provides written
notice of intent to terminate and void this Settlement Agreement.
8. Termination for Non-Payment. NBAP may terminate the Amended License
Agreement if the payments provided in Section 3 hereof are not made when due,
upon written notice made within thirty days from a payment's due date. In the
event of a termination of the Amended
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License Agreement under this paragraph 8, the sell-off rights set forth in
paragraph 14 of the Amended License Agreement shall not be applicable.
9. Representations And Warranties. The parties to this Settlement Agreement
jointly and mutually represent and warrant to each other that as follows:
(i) that no other person or entity has any interest in the claims,
demands, obligations, or causes of action arising out of the License Agreement,
the Panini Litigation or the Adversary Proceeding and each of them have the
sole right and exclusive authority to execute this Settlement Agreement, and
that they have not sold, assigned, transferred, conveyed or otherwise disposed
of any claims, demands, obligations, or causes of action arising out of the
License Agreement or the Panini Litigation or the Adversary Proceeding.
(ii) that they were represented by counsel of their choice at the time
of the execution of this Settlement Agreement, that they have relied upon the
legal advice of their counsel, that the terms of the Settlement Agreement have
been completely read and explained to them by their counsel, that the Trustee
and responsible officials of each of the other parties have read this
Settlement Agreement and that the terms of this Settlement Agreement are fully
understood and voluntarily accepted by all of them.
(iii) that the persons signing below on their behalf have full right,
power and authority to sign this Settlement Agreement.
10. Settlement Agreement Not An Admission. Nothing in this Settlement
Agreement, the Motion or the Order of Approval shall be construed as an
admission of the rights or liabilities of any entity, or of any other issue of
fact or law. Nothing in this Settlement Agreement shall be used to interpret
the Amended License Agreement.
11. Confidentiality. The parties understand and acknowledge that the terms of
the Amended License Agreement are confidential and it is agreed that no party
shall divulge those terms to any third party except as may be required by law
or to fulfill the terms of this Settlement Agreement or the Amended License
Agreement and, to the extent any disclosure of the terms of the Amended License
Agreement is necessary under the provisions of this paragraph, the party
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making the disclosure will take all steps to minimize the scope of such
disclosure, where possible making such disclosure only pursuant to an agreement
of confidentiality with the third party to whom the terms are disclosed and/or,
where disclosure is necessary in the course of litigation, pursuant to a
protective order from the relevant court; and, prior to filing the Amended
License Agreement with the Court, the Trustee shall obtain a Protective Order
preserving the confidentiality of the terms of the Amended License Agreement
and to permit its filing with the Court under seal.
12. Execution. This Settlement Agreement may be executed simultaneously in one
or more counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one and the same instrument, and it is
further agreed that facsimile signatures by any party shall be deemed effective
and binding for all purposes stated herein.
13. Settlement Agreement Binding. This Settlement Agreement shall be binding
upon the parties and their successors and assigns.
WHEREFORE, the parties have signed this Settlement Agreement on the date
first above written.
NBA PROPERTIES, INC.
By: _/s/ Xxxxxx X. Benjamin____
Name: _Harvey E. Benjamin__________
Title: _Senior VP_____________________
MARVEL ENTERTAINMENT GROUP, INC.
By: _/s/ August J. Liguori______________
Name: _August J. Liguori___________
Title: _E.V.P.________________________
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FLEER CORPORATION
By: _/s/ Xxxxxxx X. Eastwood________
Name: _Michael K. Eastwood________
Title: __VP & Controller______________
SKYBOX INTERNATIONAL, INC.
By: _/s/ Xxxxxxx X.Eastwood_________
Name: _Michael K. Eastwood________
Title: __VP & Controller__________
PANINI, S.P.A.
By: __/s/ Xxxx Xxxx Sallustro_______
Name: _Aldo Hugo Sallustro_________
Title: _Managing Director__________
_/s/ Xxxx X. Gibbons__________
Xxxx X. Xxxxxxx, Chapter 11 Trustee
for Marvel, Fleer and Skybox
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