EXHIBIT 2
STOCKHOLDERS' AGREEMENT
by and among
XXX XXXX,
VARIOUS XXXXXXXXX ENTITIES AND INDIVIDUALS,
XXXXX XXXXXXXXXX,
XXXXX XXXXXXXXXX T.A.,
THE XXXXX & XXXXX XXXXXXXXXX FOUNDATION INC.,
OBJECT TRADING CORP.,
ZIB INC.,
VARIOUS SECURED LENDERS,
and
TOY BIZ, INC.
Dated as of October 1, 1998
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TABLE OF CONTENTS
Page
............. .........
ARTICLE I DEFINITIONS
Section 1.1 Definitions...................................................................3
ARTICLE II MANAGEMENT
Section 2.1 Board Representation..........................................................7
Section 2.2 Loss of Board Representation.................................................12
Section 2.3 Committee Representation.....................................................15
Section 2.4 Computation and Notice of Common Equivalent Shares Ownership.................19
Section 2.5 Restriction on Disposition of Stock Held by Subsidiary.......................21
ARTICLE III REPRESENTATIONS
Section 3.1 Representations of the Xxxxxxxxx Entities....................................22
Section 3.2 Representations of the Xxxxxxxxxx/Arad Group.................................22
Section 3.3 Representations of the Lender Group..........................................22
ARTICLE IV MISCELLANEOUS
Section 4.1 Effective Date...............................................................23
Section 4.2 Termination..................................................................23
Section 4.3 Secretary to Retain Copy.....................................................25
Section 4.4 Further Actions..............................................................25
Section 4.5 Specific Performance.........................................................25
Section 4.6 Entire Agreement.............................................................26
Section 4.7 Notices......................................................................26
Section 4.8 Waivers; Amendment...........................................................29
Section 4.9 Binding Effect; Heirs and Successors.........................................29
Section 4.10 No Third Party Beneficiaries.................................................30
Section 4.11 Separability.................................................................30
Section 4.12 Headings.....................................................................30
Section 4.13 Pronouns.....................................................................30
Section 4.14 Counterparts.................................................................30
Section 4.15 Governing Law................................................................30
Section 4.16 No Restriction on Transferability............................................31
Section 4.17 Whippoorwill Obligations Several and Not Joint...............................31
STOCKHOLDERS' AGREEMENT (this "Agreement"), dated as of October 1, 1998
among Xxx Xxxx ("Arad"); the various Xxxxxxxxx entities and individuals listed
on the signature pages hereto (the "Xxxxxxxxx Entities"); Xxxxx Xxxxxxxxxx
("Xxxxxxxxxx"); Xxxxx Xxxxxxxxxx T.A., a Florida trust (the "Trust"); the Xxxxx
& Xxxxx Xxxxxxxxxx Foundation Inc., a Florida corporation (the "Foundation");
Object Trading Corp., a Delaware corporation ("Object Trading"); Zib Inc., a
Delaware corporation ("Zib" and together with Xxxxxxxxxx, the Trust, the
Foundation, and Object Trading, the "Xxxxxxxxxx Entities"; the Xxxxxxxxxx
Entities together with Arad, the "Xxxxxxxxxx/Arad Group"; the Xxxxxxxxxx/Arad
Group together with the Xxxxxxxxx Entities, the "Investor Group"); The Chase
Manhattan Bank ("Chase"); Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx Xxxxxxx");
Whippoorwill Associates, Incorporated, as agent for or general partner of each
institution (a "Whippoorwill Account") set forth on Schedule 1 (collectively,
"Whippoorwill"); and Toy Biz, Inc., a Delaware corporation (the "Company"). Each
of Xxxxx, Xxxxxx Xxxxxxx and each Whippoorwill Account shall be a "Secured
Lender" for so long as each remains bound hereby, and all Secured Lenders bound
hereby shall collectively constitute, the "Lender Group"). The Secured Lenders
are some of the "Secured Lenders" referred to in the Fourth Amended Joint Plan
of Reorganization Proposed by those "Secured Lenders" and the Company in the
bankruptcy matter of In Re: Marvel Entertainment Group, Inc. et al. (case No.
97-638-RRM) in the United States District Court for the District of Delaware
(the "Plan"); and all of the "Secured Lenders" as that term
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is defined more broadly in the Plan (other than any Xxxxxxxxx Entity or any of
its Affiliates) are referred to in this Agreement collectively as the "Plan
Secured Lender Group".
W I T N E S S E T H
WHEREAS, the Xxxxxxxxxx Entities, Arad and the Xxxxxxxxx Entities will
own shares of common stock, par value $.01 per share, of the Company (the
"Common Stock"), and the Xxxxxxxxxx Entities and the Xxxxxxxxx Entities will own
shares of 8% Cumulative Convertible Exchangeable Preferred Stock of the Company
(the "Preferred Stock"; together with the Common Stock and any other security of
the Company which is then currently convertible or exchangeable for Common Stock
without the payment of additional consideration, the "Capital Stock"),
immediately after the consummation of the Plan;
WHEREAS, immediately after the consummation of the Plan, the Secured
Lenders will own shares of Common Stock and Preferred Stock;
WHEREAS, pursuant to the Plan, the Board of Directors of the Company
(the "Board") shall consist of eleven (11) Directors, six (6) of whom, subject
to Section 2.2 hereof, are to be designated by the Investor Group (the "Investor
Group Designees"), and five (5) of whom, subject to Section 2.2 hereof, are to
be designated by the Lender Group (the "Lender Group Designees"); provided, that
unless and until the occurrence of a Xxxxxxxxx Forfeiture Event, one (1) of the
Investor Group Designees is to be designated by the Xxxxxxxxx Entities (the
"Xxxxxxxxx Designee");
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WHEREAS, each of the parties hereto desires to enter into this
Agreement in order to set forth certain provisions regarding the management of
the Company.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
herein contained, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.1. Definitions. For purposes of this Agreement, the following
terms shall have the meanings indicated:
"Affiliate" and "Affiliated" shall have the meanings set forth in Rule
12b-2 of the Securities Exchange Act of 1934, as amended, and any successor
regulation thereto.
"Agreement" shall have the meaning set forth in the Preamble hereto.
"Arad" shall have the meaning set forth in the Preamble hereto.
"Beneficial Owner" shall have the meaning set forth in Rule 13d-3 of
the Securities Exchange Act of 1934, as amended, and any successor regulation
thereto; provided that, a person shall not be deemed to be a Beneficial Owner of
a security merely because that person has the right to acquire Beneficial
Ownership of that security if that right may be exercised only upon the payment
of consideration (other than solely by conversion or exchange of Capital Stock)
nor shall a person be deemed to be a Beneficial Owner of a security merely
because of the provisions of this Agreement. For the purposes of this
definition, "Beneficial Ownership" and "Beneficially Own" shall refer to the
ownership interest of a Beneficial Owner. With respect to Whippoorwill,
"Beneficially Owned" shall mean only such Capital
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Stock Beneficially Owned by Whippoorwill Accounts with respect to which
Whippoorwill Associates, Incorporated has the power to direct the vote.
"Board" shall have the meaning set forth in the Preamble hereto.
"Capital Stock" shall have the meaning set forth in the Recitals
hereto.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Common Equivalent Shares" Beneficially Owned by any person shall mean
the number of shares of Common Stock Beneficially Owned by such person.
"Common Stock" shall have the meaning set forth in the Recitals hereto,
together with any other security of the Company for which the Common Stock shall
have been exchanged in any recapitalization or similar transaction.
"Designee" and "Designees" shall have the meaning set forth in Section
2.1(a) hereof.
"Xxxxxxxxx Designator" shall mean Xxxx Xxxxxxxxx or, upon the death or
other incapacity of Xxxx Xxxxxxxxx, Xxxxxx Xxxxxxxxx or, upon the death or other
incapacity of Xxxxxx Xxxxxxxxx, such other person identified by Xxxxxxxxx
Partners Inc. by written notice to the Secretary of the Company.
"Xxxxxxxxx Designee" shall have the meaning set forth in the Recitals
hereto.
"Xxxxxxxxx Entities" shall have the meaning set forth in the Preamble
hereto.
"Xxxxxxxxx Forfeiture Event" shall mean a decrease in the Xxxxxxxxx
Entities' Beneficial Ownership of Capital Stock to less than 1,500,000 Common
Equivalent Shares, calculated in accordance with Section 2.4 hereof and
appropriately adjusted for any stock splits, reverse stock splits,
recapitalization of the Capital Stock or capital transaction of a similar
nature.
"Director" shall mean a member of the Board of Directors of the Company.
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"Effective Date" shall mean the date on which the Agreement becomes
effective in accordance with Section 4.1 hereof.
"Election Meeting" shall have the meaning set forth in Section 2.1(b)
hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Independent Director" shall mean either Investor Group Designees or
Lender Group Designees who satisfy the requirements of Paragraph 303.00 of the
New York Stock Exchange Listed Company Manual (or any successor provision) and
who are (a) "non-employee directors" or any related successor concepts under
Rule 16b-3 (or any successor provision) promulgated pursuant to Section 16 of
the Exchange Act, and (b) "outside directors" or any related successor concepts
under Section 162(m) (or any successor provision) of the Code.
"Investor Group" shall have the meaning set forth in the Recitals
hereto.
"Investor Group Designator" shall mean Xxxxx Xxxxxxxxxx until his
death, disability or resignation. The person serving at any time as Investor
Group Designator shall have the right to appoint (or to change), by written
notice to the Secretary of the Company, a successor Investor Group Designator
who shall become the Investor Group Designator upon the death, disability, or
resignation of the Investor Group Designator.
"Investor Group Designee" shall have the meaning set forth in the
Recitals hereto.
"Lender Group" shall have the meaning set forth in the Preamble hereto.
"Lender Group Designator" shall mean (i) with respect to the initial
configuration of the Board following the Effective Time, a subcommittee of the
Lender Group consisting of Xxxxx, Xxxxxx Xxxxxxx and Whippoorwill, and (ii)
thereafter, any one or more Secured Lenders that Beneficially Own a majority of
the Common Equivalent Shares Beneficially
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Owned by the Lender Group; provided however that, whenever the Company is
required to deliver a notice under this Agreement to the Lender Group
Designator, such notice shall be delivered to Xxxxxx Xxxxxxx, and Xxxxxx Xxxxxxx
shall promptly deliver a copy thereof to each other Secured Lender still bound
hereby
"Lender Group Designee" shall have the meaning set forth in the
Preamble hereto.
"Notice of Designee" shall have the meaning set forth in Section 2.1(b)
hereof.
"Xxxxxxxxxx Entities" shall have the meaning set forth in the Preamble
hereto.
"Xxxxxxxxxx/Arad Group" shall have the meaning set forth in the
Preamble hereto.
"Plan" shall have the meaning set forth in the Recitals hereto.
"Plan Secured Lender Group" shall have the meaning set forth in the
Preamble hereto.
"Preferred Stock" shall have the meaning set forth in the Recitals
hereto, together with any other security of the Company for which the Preferred
Stock shall have been exchanged in any recapitalization or similar transaction.
"Secured Lenders" shall have the meaning set forth in the Preamble
hereto.
"Stockholder Group Designators" shall mean the Investor Group
Designator, the Lender Group Designator and the Xxxxxxxxx Designator.
"Stockholder Groups" shall mean the Investor Group, the Lender Group
and the Xxxxxxxxx Entities.
"Whippoorwill Account" shall have the meaning set forth in the
Preamble.
ARTICLE 2
MANAGEMENT
Section 2.1. Board Representation.
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(1) Subject to Section 2.2 hereof, at and following the Effective Date,
each party to this agreement will take such action as may reasonably be in its
power to cause the Board to include (i) six (6) Investor Group Designees, one
(1) of whom, unless and until a Xxxxxxxxx Forfeiture Event has occurred, shall
be the Xxxxxxxxx Designee, and (ii) five (5) Lender Group Designees. The
Investor Group Designees (including the Xxxxxxxxx Designee) and the Lender Group
Designees are sometimes collectively referred to herein as the "Designees" and
individually as a "Designee."
(2)
(1) The Investor Group Designator, the Lender Group Designator and the
Xxxxxxxxx Designator shall each give the Company timely notice (the "Notice
of Designee") of the name of each person whom the relevant Stockholder
Group wishes to be nominated by the Company for election or re-election to
the Board at the next meeting of stockholders, or taking of action by
written consent of stockholders, at which Directors are to be elected (an
"Election Meeting"). At the option of any Stockholder Group Designator, the
Notice of Designee may also specify one or more alternates (an "Alternate
Designee") to serve in the event of the incapacity or other inability to
serve of a Designee, as provided herein. The Investor Group Designees and
the Lender Group Designees shall at all times include such number of
Independent Directors as shall be required to comply with the provisions of
Sections 2.3(b) and 2.3(c) hereof. Each Notice of Designee shall be in
writing and shall be timely if delivered to the Secretary of the Company at
the Company's principal executive offices
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not later than the close of business on the 60th day prior to the first
anniversary of the preceding year's annual meeting; provided, however, that
in the event that the date of the Election Meeting is more than 30 days
before or after such anniversary date, the Notice of Designee to be timely
must be so delivered not later than the later of (x) the close of business
on the later of the 60th day prior to the Election Meeting and (y) the 20th
day following the day on which public announcement of the date of the
Election Meeting is first made by the Company. In no event shall the public
announcement of an adjournment of an Election Meeting commence a new time
period for the giving of the Notice of Designee as described above. If the
Company has not received a Notice of Designee from any Stockholder Group
Designator at a time when the relevant Stockholder Group is entitled to
name one or more Designee on or before the 10th day before the latest date
for delivery of the Notice of Designee specified in the proviso to the next
preceding sentence, the Company shall so inform the relevant Stockholder
Group Designator by written notice. If the Company has not received a
Notice of Designee from any Stockholder Group Designator at a time when the
relevant Stockholder Group is entitled to name one or more Designee on or
before the latest date for delivery of such Notice, then such Stockholder
Group Designator shall be deemed to have delivered on such date a Notice of
Designee designating the Designees specified in the most recently delivered
Notice of Designee for any prior Election Meeting, or, if any such Designee
is unable to serve and an Alternate Designee has been specified therefor,
such Alternate Designee.
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(2) By means of written notice given to a Stockholder Group Designator
within ten days of the Company's receipt of a Notice of Designee sent by
that Stockholder Group Designator, the Board may reject a Designee if, in
the exercise of its fiduciary duties, it reasonably determines that such
Designee fails to meet the moral or professional standards required of a
director of a public corporation such as the Company. The Company's notice
of rejection shall specify the basis for such rejection in accordance with
this subsection in reasonable detail. If the Board shall reject any
Designee as aforesaid, the relevant Stockholder Group Designator may send a
supplemental Notice of Designee designating a replacement for the rejected
Designee, which notice shall be timely if received by the Company within
fifteen days of that Stockholder Group Designator's receipt of a notice of
rejection under the first sentence of this paragraph. If the Stockholder
Group Designator does not send a supplemental Notice of Designee within the
aforesaid time period and an Alternate Designee was designated for the
rejected Designee in the original Notice of Designee, the Alternate
Designee, unless rejected in accordance with this subsection, shall be
deemed nominated by the Stockholder Group Designator in replacement of the
rejected Designee.
(3) Each Notice of Designee shall set forth, as to each person whom the
Stockholder Group wishes the Company to nominate for election or
re-election as a Director, all information relating to such person that is
required to be disclosed in solicitations of proxies for election of
directors in an election contest, or is otherwise required, in each case
pursuant to Regulation 14A under the Exchange Act and Rule
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14a-11 thereunder (including such person's written consent to being named
in the proxy statement as a nominee and to serving as a Director if
elected); provided, however, that a Notice of Designee shall not be deemed
defective for failure to supply such information unless, after request
therefor by the Company to the relevant Stockholder Group Designator, such
Stockholder Group Designator fails to supply such information on a timely
basis for inclusion in the proxy materials for the relevant Election
Meeting.
(4) If the parties to this Agreement have received notice from the
Company that there are any directorships to be filled at a forthcoming
Election Meeting as to which no timely Notice of Designee was received or
deemed received, the parties to this Agreement may vote their shares as to
those directorships without constraint by this Agreement.
(3) The Company shall nominate and recommend those Designees as to whom
it has received or is deemed to have received a timely Notice of Designee to
the stockholders of the Company for election or re-election as Directors and
shall otherwise use its best efforts to cause those Designees to be elected to
the Board. Each party to this Agreement agrees to vote, or cause to be voted,
all of the shares of Capital Stock Beneficially Owned by it at any Election
Meeting and agrees to take all actions otherwise reasonably in its power as a
stockholder of the Company to cause the Investor Group Designees (including, in
the absence of a Xxxxxxxxx Forfeiture Event, the Xxxxxxxxx Designee) and the
Lender Group Designees to be elected to the Board as described herein.
(4)
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(1) If, following his election to the Board, a Lender Group Designee
shall vacate his position on the Board for any reason, including, but not
limited to, the death, removal or retirement of that Designee, but
excluding any changes in Board representation pursuant to Section 2.2
hereof, then the Lender Group Designator shall have the right to nominate a
successor Designee to fill the vacancy.
(2) If, following his election to the Board, the Xxxxxxxxx Designee
shall vacate his position on the Board for any reason, including, but not
limited to, the death, removal or retirement of that Designee, but
excluding any changes in Board representation pursuant to Section 2.2
hereof, then the Xxxxxxxxx Designator shall have the right to nominate a
successor Designee to fill the vacancy.
(3) If, following his election to the Board, an Investor Group Designee
shall vacate his position on the Board for any reason, including, but not
limited to, the death, removal or retirement of that Designee, or the
occurrence of a Xxxxxxxxx Forfeiture Event, but excluding any other changes
in Board representation pursuant to Section 2.2 hereof, then the Investor
Group Designator, except in cases covered by Section 2.1(d)(ii), shall have
the right to nominate a successor Designee to fill the vacancy.
(4) The Company shall cause any successor Designee nominated pursuant
to Section 2.1(d)(i)-(iii) (a "Nominated Successor") to be elected to fill
such vacancy as promptly as practicable at a special meeting of the Board
called for that purpose or by action of the Board by unanimous written
consent. If for any reason the Nominated Successor is not made a Director
as aforesaid, the parties hereto shall promptly use their
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respective best efforts (i) to bring about a special meeting of
stockholders for the purpose of (A) removing from the Board any Director
appointed instead of the Nominated Successor and/or (B) electing the
Nominated Successor to the Board or (ii) to execute a written consent in
lieu of a meeting of stockholders (A) to remove from the Board any Director
appointed instead of the Nominated Successor and/or (B) to elect the
Nominated Successor to the Board.
(5) Each Stockholder Group Designator shall have the right, at any
time, to identify any of that Stockholder Group's Designees whom that
Stockholder Group wishes to have removed from his position on the Board and to
nominate a successor Designee to fill the resulting vacancy. The parties hereto
shall promptly use their respective best efforts (i) to bring about a special
meeting of stockholders, and each shall vote, or cause to be voted, all of the
shares of Capital Stock Beneficially Owned by it at that meeting, for the
purpose of removing from the Board any such Designee(s) so identified and
electing the nominated successor(s) to the Board or (ii) to execute a written
consent in lieu of a meeting of stockholders to remove from the Board any such
Designees so identified and to elect the nominated successor(s) to the Board.
(6) The parties to this Agreement shall not, and shall use their best
efforts to cause their respective Designees not to, take any action to change
from eleven (11) the number of Directors which shall constitute the entire Board
without the unanimous written agreement of the Investor Group Designator, the
Lender Group Designator and, unless and until a Xxxxxxxxx Forfeiture Event has
occurred, the Xxxxxxxxx Designator.
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Section 2.2. Loss of Board Representation.
(1) Decreases in Beneficial Ownership of Capital Stock (including
decreases occurring prior to the expiration of twenty-one months after the date
of the consummation of the Plan) shall cause decreases in the Stockholder
Groups' right to designate Directors, and shall cause forfeitures of Board
seats, in accordance with this Section 2.2(a); provided, that such decreases in
Stockholder Groups' right to designate Directors, and such forfeitures of Board
seats, shall take effect on the first day after the expiration of twenty-one
months after the consummation of the Plan and not before. For purposes of this
Section 2.2 and Section 2.3(e) hereof, the parties have agreed that such
decreases in the Beneficial Ownership of Capital Stock of the Plan Secured
Lender Group in the aggregate shall cause such decreases in the Lender Group's
right to designate Directors and such forfeitures of Board seats as provided in
those sections.
(1) If either the Investor Group or the Plan Secured Lender Group, as
the case may be, shall decrease its Beneficial Ownership of Common
Equivalent Shares at least twenty percent (20%), but less than forty
percent (40%), then the Investor Group or the Lender Group, as the case may
be, shall forfeit one (1) Board seat.
(2) If either the Investor Group or the Plan Secured Lender Group, as
the case may be, shall decrease its Beneficial Ownership of Common
Equivalent Shares at least forty percent (40%), but less than sixty percent
(60%), then the Investor Group or the Lender Group, as the case may be,
shall forfeit two (2) Board seats.
(3) If either the Investor Group or the Plan Secured Lender Group, as
the case may be, shall decrease its Beneficial Ownership of Common
Equivalent Shares at
20
least sixty percent (60%), but less than eighty percent (80%), then the
Investor Group or the Lender Group, as the case may be, shall forfeit three
(3) Board seats.
(4) If either the Investor Group or the Plan Secured Lender Group, as
the case may be, shall decrease its Beneficial Ownership of Common
Equivalent Shares at least eighty percent (80%), but less than ninety
percent (90%), then the Investor Group or the Lender Group, as the case may
be, shall forfeit four (4) Board seats.
(5) (A) If the Investor Group shall decrease its Beneficial Ownership
of Common Equivalent Shares at least ninety percent (90%), but less than
ninety-five percent (95%), then the Investor Group shall forfeit five (5)
Board seats, and (B) if the Plan Secured Lender Group shall decrease its
Beneficial Ownership of Common Equivalent Shares at least ninety percent
(90%), then the Lender Group shall forfeit all five (5) of its Board seats.
(6) Upon the occurrence of a Xxxxxxxxx Forfeiture Event, the Xxxxxxxxx
Entities shall forfeit their one (1) Board seat, but that forfeiture shall
not cause a reduction in the number of Directors which the Investor Group
has the right to designate unless the Investor Group shall have decreased
its Beneficial Ownership of Common Equivalent Shares at least ninety-five
percent (95%), in which case the Investor Group shall forfeit all six (6)
of its Board seats. If a Xxxxxxxxx Forfeiture Event has not occurred, none
of the Board seats forfeited by the Investor Group under Section
2.2(a)(i)-(v) shall be the Board seat of the Xxxxxxxxx Designee.
(2) In the event of a decrease in Beneficial Ownership that decreases a
Stockholder Group's right to name Directors under Section 2.2(a) hereof, that
Stockholder
21
Group's Designator shall name the Designee(s) to be removed from the Board in
accordance with that section and the parties to this Agreement shall use their
respective best efforts to cause the resignations from the Board of any
Designee(s) so named. If the number of Designees of a Stockholder Group serving
on the Board is not promptly decreased in accordance with Section 2.2(a) hereof,
the parties hereto shall promptly use their respective best efforts (i) to bring
about a special meeting of stockholders, and each shall vote, or cause to be
voted, all of the shares of Capital Stock Beneficially Owned by it at that
meeting, for the purpose of removing from the Board such number of the Designees
of that Stockholder Group as shall be required in order to comply with Section
2.2(a) or (ii) to execute a written consent in lieu of a meeting of stockholders
to remove from the Board such number of Designees of that Stockholder Group.
Section 2.3. Committee Representation.
(1) Each party to this Agreement shall vote, or cause to be voted, its
Capital Stock Beneficially Owned, and shall use its best efforts to cause its
respective Stockholder Group's Designees on the Board, subject to the exercise
of their fiduciary obligations, to establish the following committees of the
Board and to cause those committees of the Board to be comprised and have the
functions, powers and authorizations, as set forth below.
(2) The Audit Committee shall consist of five (5) Independent
Directors, three (3) of whom will be Lender Group Designees named by a majority
of the Lender Group Designees then serving on the Board and two (2) of whom will
be Investor Group Designees named by a majority of the Investor Group Designees
then serving on the Board. The Audit Committee shall exercise, subject to
applicable provisions of laws, the functions regularly
22
administered by committees of such type including, without limitation, (A) to
review the professional services and independence of the Company's independent
auditors and the scope of the annual external audit as recommended by the
independent auditors, (B) to ensure that the scope of the annual external audit
by the independent auditors of the Company is sufficiently comprehensive, (C) to
review, in consultation with the independent auditors and the internal auditors,
the plan and results of the annual external audit, the adequacy of the Company's
internal control systems and the results of the Company's internal audits, (D)
to review with management and the independent auditors, the Company's annual
financial statements, financial reporting practices and the results of each
external audit, and (E) to consider the qualification of the Company's
independent auditors, to make recommendations to the Board as to their selection
and to review the relationship between such independent auditors and management.
(3) The Compensation and Nominating Committee shall consist of five (5)
Directors, two (2) of whom shall be Lender Group Designees named by a majority
of the Lender Group Designees then serving on the Board and three (3) of whom
shall be Investor Group Designees named, subject to the following sentence, by a
majority of the Investor Group Designees then serving on the Board. Unless a
Xxxxxxxxx Forfeiture Event has occurred, one (1) of the three Investor Group
Designees on the Compensation and Nominating Committee shall be the Xxxxxxxxx
Designee. At least one of the Lender Group Designees and at least one of the
Investor Group Designees (other than the Xxxxxxxxx Designee) serving on the
Compensation and Nominating Committee shall be an Independent Director. The
Compensation and Nominating Committee shall exercise, subject to applicable
provisions of
23
law, the functions regularly administered by committees of such type including,
without limitation, the power to review and recommend to the Board the
compensation and benefit arrangements for the officers of the Company, the
administering of the stock option plans and executive compensation programs of
the Company, including bonus and incentive plans applicable to officers and key
employees of the Company and to recommend to the Board nominees for election as
Directors.
(4) The Finance Committee shall consist of five (5) Directors, two (2)
of whom will be Lender Group Designees named by a majority of the Lender Group
Designees then serving on the Board and three (3) of whom will be Investor Group
Designees named by a majority of the Investor Group Designees then serving on
the Board. The Finance Committee shall exercise, subject to applicable
provisions of law, the functions regularly administered by committees of such
type including, without limitation, to make recommendations to the Board with
respect to the Company's credit arrangements, the issuance of equity and long
term debt instruments and other financial matters.
(5)
(1) If the Investor Group shall decrease its Beneficial Ownership of
Common Equivalent Shares by more than (33 1/3%), it will forfeit one Audit
Committee Seat. If the Investor Group shall decrease its Beneficial
Ownership of Common Equivalent Shares by more than sixty six and two thirds
percent (66 2/3%), it will forfeit both of its Audit Committee seats. If
the Plan Secured Lender Group shall decrease its Beneficial Ownership of
Common Equivalent Shares by more than twenty five percent (25%), the Lender
Group will forfeit one Audit Committee seat. If the Plan Secured Lender
Group
24
shall decrease its Beneficial Ownership of Common Equivalent Shares by more
than fifty percent (50%), the Lender Group will forfeit two Audit Committee
seats. If the Plan Secured Lender Group shall decrease its Beneficial
Ownership of Common Equivalent Shares by more than seventy five percent
(75%), the Lender Group will forfeit all three of its Audit Committee
seats.
(2) If the Plan Secured Lender Group shall decrease its Beneficial
Ownership of Common Equivalent Shares by more than (33 1/3%), the Lender
Group will forfeit one Compensation and Nominating Committee seat. If the
Plan Secured Lender Group shall decrease its Beneficial Ownership of Common
Equivalent Shares by more than sixty six and two thirds percent (66 2/3%),
the Lender Group will forfeit both of its Compensation and Nominating
Committee seats. If the Investor Group shall decrease its Beneficial
Ownership of Common Equivalent Shares by more than twenty five percent
(25%), it will forfeit one Compensation and Nominating Committee seat. If
the Investor Group shall decrease its Beneficial Ownership of Common
Equivalent Shares by more than fifty percent (50%), it will forfeit two
Compensation and Nominating Committee seats. If the Investor Group shall
decrease its Beneficial Ownership of Common Equivalent Shares by more than
seventy five percent (75%) and a Xxxxxxxxx Forfeiture Event shall have
occurred, it will forfeit all three of its Compensation and Nominating
Committee seats. If a Xxxxxxxxx Forfeiture Event has not occurred, none of
the Compensation and Nominating Committee seats forfeited by the Investor
Group under this Section 2.3(e)(ii) shall be the Compensation and
Nominating Committee seat of the Xxxxxxxxx Designee.
25
(3) If the Plan Secured Lender Group shall decrease its Beneficial
Ownership of Common Equivalent Shares by more than (33 1/3%), the Lender
Group will forfeit one Finance Committee seat. If the Plan Secured Lender
Group shall decrease its Beneficial Ownership of Common Equivalent Shares
by more than sixty six and two thirds percent (66 2/3%), the Lender Group
will forfeit both of its Finance Committee seats. If the Investor Group
shall decrease its Beneficial Ownership of Common Equivalent Shares by more
than twenty five percent (25%), it will forfeit one Finance Committee seat.
If the Investor Group shall decrease its Beneficial Ownership of Common
Equivalent Shares by more than fifty percent (50%), it will forfeit two
Finance Committee seats. If the Investor Group shall decrease its
Beneficial Ownership of Common Equivalent Shares by more than seventy five
percent (75%), it will forfeit all three of its Finance Committee seats.
(6) If a Stockholder Group's right to committee representation decreases
under Section 2.3(e) hereof, each party to this Agreement shall use its
respective best efforts to cause the required number of the Designees of
that Stockholder Group to resign their Committee(s) assignments. (7) The
parties to this Agreement shall not, and shall use their best efforts to
cause their respective Designees not to, take any action to create any
committee of the Board other than as provided in this Agreement without the
unanimous written agreement of the Investor Group Designator, the Lender
Group Designator and, unless and until a Xxxxxxxxx Forfeiture Event has
occurred, the Xxxxxxxxx Designator.
26
Section 2.4. Computation and Notice of Common Equivalent Shares
Ownership.
(1) For the purposes of this Agreement, the Investor Group's Beneficial
Ownership of Common Equivalent Shares shall be determined with reference only to
the Xxxxxxxxxx/Arad Group's Beneficial Ownership of Common Equivalent Shares and
shall not be determined by reference to, or affected by, any change in the
Xxxxxxxxx Entities' Beneficial Ownership of Common Equivalent Shares.
(2) For the purposes of Section 2.2 and Section 2.3 hereof, a group's
reduction in its Beneficial Ownership of Common Equivalent Shares shall be
determined by comparing, at any particular time, that group's Beneficial
Ownership of Common Equivalent Shares (including after-acquired Capital Stock)
to that group's Beneficial Ownership of Common Equivalent Shares immediately
following the consummation of the Plan, as adjusted for any stock splits,
reverse stock splits, recapitalization of the Common Equivalent Shares or
capital transaction of a similar nature. Any of the Investor Group, the
Xxxxxxxxx Group, the Lender Group and the Plan Secured Lender Group may use the
Common Equivalent Shares held by Affiliates of its members to calculate its
total Common Equivalent Shares ownership if such Affiliates have agreed in
writing, for the benefit of all parties to this Agreement, to be bound by this
Agreement.
(3) Any reduction in Common Equivalent Shares Beneficially Owned by any
Secured Lender shall constitute a reduction in the number of Common Equivalent
Shares Beneficially Owned by the Plan Secured Lender Group for purposes of
Section 2.2, 2.3 and
27
4.2(e)(iii) hereof, except to the extent that (i) any or all of the Common
Equivalent Shares no longer so Beneficially Owned are Beneficially Owned by any
member of the Plan Secured Lender Group (or any Affiliate of such a member) who
is, or who agrees to be, bound hereby or (ii) the Lender Group Designator
delivers to the Investor Group Designator, on or prior to the date on which the
Lender Group Designator delivers a Notice of Designee with respect to an
Election Meeting, an irrevocable proxy from one or more members of the Plan
Secured Lender Group (which are not Secured Lenders), authorizing the Investor
Group Designator and the Xxxxxxxxx Group Designator, acting jointly, to vote a
specified number Common Equivalent Shares Beneficially Owned by such member in
the manner required by this Agreement with respect to the election of directors
at such Election Meeting; provided that even if such an irrevocable proxy has
been delivered this clause (ii) shall not apply with respect to the Common
Equivalent Shares covered thereby with respect to any period after that meeting
if such Common Equivalent Shares fail to be voted in a manner in which such
Common Equivalent Shares would otherwise be required to be voted under this
Agreement if they were Beneficially Owned by a party to this Agreement. For
example, (x) if a Secured Lender sells two million Common Equivalent Shares to a
third party which is not and does not agree to be bound by this Agreement and
does not deliver an irrevocable proxy as provided in the preceding sentence, the
number of Common Equivalent Shares Beneficially Owned by the Plan Secured Lender
Group shall be deemed to have been reduced by two million Common Equivalent
Shares, whether or not offsetting acquisitions of Common Equivalent Shares have
been made by other members of the Plan Secured Lender Group, (y) if, the facts
are the same as in clause (x) but another member of the Plan Secured Lender
Group delivers a proxy
28
described in the preceding sentence and after the meeting to which the proxy
relates the holder of those shares fails to take an action required by Section
2.1, 2.2 or 2.3 of this Agreement, clause (ii) of Section 2.4(c) shall no longer
apply with respect to those shares.
(4) If at any time a Stockholder Group Designator has actual knowledge
(but without any duty of inquiry) that the Beneficial Ownership of Common
Equivalent Shares of the related Stockholder Group (including, for purposes of
the Lender Group Designator, the Plan Secured Lender Group) has been reduced
such that such Stockholder Group would be required to forfeit one or more or any
additional Board seats pursuant to Section 2.2 or Committee seats pursuant to
Section 2.3, it shall as promptly as practicable thereafter notify the Company
and the other parties to this Agreement.
Section 2.5. Restriction on Disposition of Stock Held by Subsidiary.
The parties to this Agreement shall not, and shall use their best efforts to
cause their respective Designees not to, (i) permit Marvel Characters, Inc. to
transfer or otherwise convey any interest in any of the shares of Common Stock
held by Marvel Characters, Inc. unless such transfer or other conveyance (A) has
been approved in writing by a majority in voting power of each Stockholder
Group, or (B) is to the Company, or (ii) allow such shares of Common Stock to be
entitled to vote with respect to matters to be voted upon or consented to by the
stockholders of the Company unless adequate provision is made to assure that
such shares of Common Stock will thereafter be voted, on all such matters,
proportionately with all other outstanding shares of Common Stock voting on all
such matters.
29
ARTICLE 3
REPRESENTATIONS
Section 3.1. Representations of the Xxxxxxxxx Entities. The Xxxxxxxxx
Entities represent to the other parties to this Agreement that they will
Beneficially Own approximately 6,115,000 Common Equivalent Shares in the
aggregate immediately following the consummation of the Plan.
Section 3.2. Representations of the Xxxxxxxxxx/Arad Group. The
Xxxxxxxxxx/Arad Group represents to the other parties to this Agreement that it
will Beneficially Own approximately 17,318,000 Common Equivalent Shares in the
aggregate immediately following the consummation of the Plan.
Section 3.3. Representations of the Lender Group.
(1) The Chase Manhattan Bank represents to the other parties to this
Agreement that it will Beneficially Own approximately 2,096,291 Common
Equivalent Shares immediately following the consummation of the Plan and that it
does not share Beneficial Ownership of any of those shares with any other member
of the Lender Group.
(2) Xxxxxx Xxxxxxx & Co. Incorporated represents to the other parties
to this Agreement that it will Beneficially Own approximately 4,020,592 Common
Equivalent Shares immediately following the consummation of the Plan and that it
does not share Beneficial Ownership of any of those shares with any other member
of the Lender Group.
(3) Whippoorwill represents to the other parties to this Agreement that
each Whippoorwill Account will Beneficially Own approximately the number of
shares of Capital Stock set forth on Schedule 1 to this Agreement immediately
following the consummation of
30
the Plan and that none of the Whippoorwill Accounts shares Beneficial Ownership
of any of those shares with any other member of the Lender Group.
ARTICLE 4
MISCELLANEOUS
Section 4.1. Effective Date. This Agreement shall become effective upon
the consummation of the Plan.
Section 4.2. Termination. (a) This Agreement shall terminate:
(1) Upon consent of all of the parties hereto who are then subject to
this Agreement;
(2) As to the Xxxxxxxxxx/Arad Group, in the event that the Investor
Group, or any of its Affiliates that have agreed to be bound by this
Agreement, shall cease to be entitled to the election of any Designee
(exclusive of the Xxxxxxxxx Designee) to the Board hereunder;
(3) As to the Lender Group, in the event that the Lender Group, or any
of their Affiliates that have agreed to be bound by this Agreement, shall
cease to be entitled to the election of any Designee to the Board hereunder
and, with respect to any individual Secured Lender, when the Common
Equivalent Shares Beneficially Owned by such Secured Lender have been less
than 10% of the Common Equivalent Shares Beneficially Owned by such Secured
Lender immediately following the consummation of the Plan for a period of
184 consecutive calendar days; provided, that this Agreement shall
terminate with respect to Whippoorwill Associates, Incorporated and each
31
Whippoorwill Account when the Common Equivalent Shares Beneficially Owed by
all of them in the aggregate have totaled less than 10% of all Common
Equivalent Shares Beneficially Owed by all of them immediately following
the consummation of the Plan for a period of 184 consecutive calendar days;
and provided further, that the termination of this Agreement with respect
to any Secured Lender shall be deemed to result in a reduction in the total
amount of Common Equivalent Shares Beneficially Owed by the Plan Secured
Lender Group by an amount equal to the amount of Common Equivalent Shares
Beneficially Owned by such Secured Lender at such time;
(4) As to the Xxxxxxxxx Entities, in the event that the Xxxxxxxxx
Entities, or any of their Affiliates that have agreed to be bound by this
Agreement, shall cease to be entitled to the election of their Designee to
the Board hereunder.
(b) In the event that a material violation of any covenant hereunder by
a member of a Stockholder Group that is not cured within thirty days of written
notice thereof by a member of one of the other Stockholder Groups shall occur
and be continuing, the Stockholder Group of the breaching party shall not be
deemed to be the Beneficial Owner of any Capital Stock for purposes of Board
representation under Section 2.2 hereof or committee representation under
Section 2.3 hereof, and shall have no further rights under this Agreement. Such
member and such Stockholder Group shall nonetheless continue to be deemed to
Beneficially Own its Capital Stock for all other purposes and to be bound to
perform its obligations under this Agreement.
Section 4.3. Secretary to Retain Copy. A copy of this Agreement shall
be filed with the Secretary of the Company.
32
Section 4.4. Further Actions. At any time and from time to time each
party agrees, at its or his expense, to take such actions and to execute and
deliver such documents as may be necessary to effectuate the purposes of this
Agreement. Each party hereto will not take any action that would (x) result in a
breach of any covenant or any other obligation of such party under this
Agreement or (y) impede, interfere with or discourage the transactions
contemplated by this Agreement.
Section 4.5. Specific Performance. The parties hereto acknowledge that
failure on any of their parts to comply with the terms of this Agreement shall
cause the other parties hereto immediate and irreparable harm that cannot be
adequately compensated by the remedies at law, and that in the event of such
breach or violation, or threatened breach or violation, the other parties hereto
shall have such provisions of this Agreement specifically enforced by
preliminary and permanent injunctive relief without having to prove the
inadequacy of the available remedies at law or any actual damages and without
posting bond or other security. Any remedy sought or obtained by a party hereto
shall not be considered either exclusive or a waiver of the rights of a party
hereto or any other person to assert any other remedies they have in law or
equity. In any proceeding upon a motion for any such injunctive relief, a
party's ability to answer in damages shall not be a bar, or be interposed as a
defense, to the granting of such injunctive relief. Any rights under this
Section 4.5 may be enforced in any appropriate court in the State of Delaware.
Section 4.6. Entire Agreement. This Agreement contains the entire
understanding between the parties hereto with respect to the subject matter
hereof, and supersedes all
33
prior and contemporaneous agreements and understandings among the parties hereto
except as herein contained, with any of the terms hereof.
Section 4.7. Notices. All notices and other communications hereunder
shall be in writing and shall be delivered personally against receipt thereof,
or transmitted by telecopier or by registered or certified mail (postage
prepaid, return receipt requested) to the parties at the following addresses (or
at such other address for a party as shall be specified by like notice):
If to the Company, to
Toy Biz, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Secretary
Telecopy: (000) 000-0000
with a copy to:
Battle Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
if to Xxxxxxxxxx, the Trust, the Foundation, Object Trading or Zib, to:
X.X. Xxx 0000
Xxxx Xxxxx, Xxxxxxx 00000-0000
Telecopy:
c/o Xxxxxx Xxxxxx (000) 000-0000
and
c/o Xxxxxxxx Xxxxxxx (000) 000-0000
34
with a copy to:
Stroock & Stroock & Xxxxx
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx
Telecopy: (000) 000-0000
and
Battle Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxx, Esq.
Telecopy: (000) 000-0000
if to Arad, to:
c/o Xxx Xxxx & Associates
0000 Xxxx Xxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Telecopy: (000) 000-0000
with a copy to:
Stroock & Stroock & Xxxxx
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx
Telecopy: (000) 000-0000
and
Battle Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxx, Esq.
Telecopy: (000) 000-0000
if to any of the Xxxxxxxxx Entities, to:
Xxxxxxxxx Partners, Inc.
000 Xxxxxxx Xxxxxx, 00xx Floor
35
New York, New York 10021
Attention: Xxxx Xxxxxx
Telecopy: (000) 000-0000
with a copy to:
Kramer, Levin, Naftalis & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
if to The Chase Manhattan Bank, to:
The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telecopy: (000) 000-0000
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
if to Xxxxxx Xxxxxxx & Co. Incorporated, to:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx XxXxxxxx, Esq.
Telecopy: (000) 000-0000
36
if to any Whippoorwill Account, to:
Whippoorwill Associates, Incorporated
00 Xxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx
Telecopy: (000) 000-0000
with a copy to:
Kramer, Levin, Naftalis & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx, Esq.
Telecopy: (000) 000-0000
Any notice shall be deemed to have been given on the date of receipt if
delivered personally or by overnight courier, the date of transmission with
confirmation back if transmitted by telecopier, or the third day following
posting if transmitted by mail.
Section 4.8. Waivers; Amendment. This Agreement may not be modified,
amended or waived other than by a written instrument executed by the parties
hereto. Neither the failure nor any delay on the part of either party to
exercise any right, remedy, power or privilege under this Agreement shall
operate as a waiver thereof. Any waiver by any party of a breach of any
provision of this Agreement shall not operate as or be construed to be a waiver
of any other breach of such provision or of any breach of any other provision of
this Agreement.
Section 4.9. Binding Effect; Heirs and Successors. The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and shall be assignable only to an Affiliate of a party hereto and, with
respect to assignment by Secured
37
Lenders, to any member of the Plan Secured Lender Group and any Affiliate of
such a member, and only if such Affiliate of a party hereto, member of the Plan
Secured Group or Affiliate of a member of the Plan Secured Lender Group agrees
in writing to be bound by this Agreement. The provisions of this Agreement shall
be binding upon and inure to the benefit of the heirs and successors of the
parties hereto.
Section 4.10. No Third Party Beneficiaries. This Agreement does not
create, and shall not be construed as creating, any rights enforceable by any
person not a party to this Agreement (except as provided in Section 4.9).
Section 4.11. Separability. If any provision of this Agreement shall be
adjudicated to be invalid, illegal or unenforceable, such provision shall be
amended to delete therefrom the portion thus adjudicated to be invalid, illegal
or unenforceable, such deletion to apply only with respect to the operation of
such provision in the particular jurisdiction in which such adjudication is
made, and the balance of this Agreement shall remain in effect.
Section 4.12. Headings. The headings in this Agreement are solely for
convenience of reference and shall be given no effect in the construction or
interpretation of any provision of this Agreement.
Section 4.13. Pronouns. Any masculine personal pronoun shall be
considered to mean the corresponding feminine or neuter personal pronoun, as the
context requires.
Section 4.14. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
38
Section 4.15. 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 the conflict of laws thereof.
Section 4.16. No Restriction on Transferability. Nothing in this
Agreement shall restrict the ability of any of the parties to this Agreement to
sell or otherwise transfer any shares of Common Stock, Preferred Stock or other
securities of the Company, nor shall a purchaser or other transferee of any
Capital Stock sold or transferred by a signatory hereto be subject to any of the
obligations created hereby unless such purchaser or transferee has agreed in
writing, for the benefit of all parties to this Agreement, to be so bound.
Section 4.17. Whippoorwill Obligations Several and Not Joint. With
respect to any obligations hereunder assumed by any Whippoorwill Account, such
obligations shall be several and not joint and shall be limited to the
percentage held by such Whippoorwill Account of the total Common Equivalent
Shares held by all such Whippoorwill Accounts, and no such Whippoorwill Account
shall be liable for any obligation of any other Whippoorwill Account.
39
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first written above.
----------------------------
Xxx Xxxx
----------------------------
Xxxx Xxxxxxxxx
XXXXXXXXX & CO., L.P.
By: Xxxxxxxxx Partners, L.P.
By: Xxxxxxxxx Partners Inc.
By:
---------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
XXXXXXXXX FOCUS FUND L.P.
By: Xxxxxxxxx Partners, L.P.
By: Xxxxxxxxx Partners Inc.
By:
---------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
XXXXXXXXX INTERNATIONAL LIMITED
By: Xxxxxxxxx Partners Inc.
By:
---------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
40
XXXXXX XXXXXXXXX, XXXXXXX XXXXXXX AND
XXXX XXXXXX AS TRUSTEES U/T/A/D
12/27/88, XXXX XXXXXXXXX, GRANTOR
By:
---------------------------
Xxxx X. Xxxxxx
Trustee
XXXX XXXXXXXXX AND XXXXXX XXXXXXXXX, AS
TRUSTEES OF THE XXXX AND XXXXXX
XXXXXXXXX FOUNDATION
By:
---------------------------
Xxxx Xxxxxxxxx
Trustee
---------------------------
Xxxxxx Xxxxxxxxx
---------------------------
Xxxxx Xxxxxxxxxx
XXXXX XXXXXXXXXX T.A.
By:
---------------------------
Xxxxx Xxxxxxxxxx
Trustee
THE XXXXX & XXXXX XXXXXXXXXX FOUNDATION,
INC.
By:
---------------------------
Name: Xxxxx Xxxxxxxxxx
Title: President
41
OBJECT TRADING CORP.
By:
---------------------------
Name: Xxxxx Xxxxxxxxxx
Title: President
ZIB INC.
By:
---------------------------
Name: Xxxxx Xxxxxxxxxx
Title: President and Chief Executive Officer
THE CHASE MANHATTAN BANK
By:
---------------------------
Name:
Title:
XXXXXX XXXXXXX & CO. INCORPORATED
By:
---------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Managing Director
42
WHIPPOORWILL ASSOCIATES, INCORPORATED,
as agent of and/or general partner for
the accounts listed on Schedule 1 hereto
By:
---------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Managing Director
TOY BIZ, INC.
By:
---------------------------
Name: Xxxxxx X. Xxxxxx
Title: President and Chief Executive Officer
43
Schedule 1
Fund/Account Common Preferred Common Share
Shares Shares Equivalents
The President and Fellows of
Harvard College .................................. 484,997 551,300 1,057,776
The Rockefeller Foundation ....................... 121,546 208,495 338,164
Xxxx Partners II, L.P. ........................... 137,455 234,589 381,183
Xxxx Partners III, L.P. .......................... 317,587 543,269 882,022
Xxxx Partners IV, L.P. ........................... 200,821 342,659 556,830
Xxxx Offshore Fund Trust ......................... 86,108 138,552 230,058
Whippoorwill Profit Sharing Plan ................. 1,890 2,717 4,712
Total ............................................ 1,350,404 2,021,581 3,450,745
44
