EXHIBIT 10.4
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of December
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8, 1998, is entered into by and among MARVEL ENTERPRISES, INC., a Delaware
corporation (the "Company"), MARVEL ENTERTAINMENT GROUP, INC., a Delaware
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corporation ("Marvel Entertainment") and the undersigned stockholders (each, a
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"Stockholder," and collectively, the "Stockholders").
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RECITALS:
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WHEREAS, the Xxxxx Xxxxxxxxxx ("Xxxxxxxxxx") and Xxx Xxxx ("Arad")
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have entered into a Registration Rights Agreement dated as of March 2, 1995 (the
"1995 Registration Rights Agreement") with the Company;
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WHEREAS, the Company has entered into a Registration Rights Agreement
with certain stockholders of the Company as of October 1, 1998 (the "October
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1998 Registration Rights Agreement");
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WHEREAS, Perlmutter, Arad, the Stockholders (who are Xxxxxxxxxx, Arad
and various affiliates of Xxxxxxxxxx) and the Company desire to replace the 1995
Registration Rights Agreement with this Agreement, whose terms are substantially
identical to the October 1998 Registration Rights Agreement;
WHEREAS, Marvel Entertainment, a party to the 1995 Registration Rights
Agreement, is now a wholly owned subsidiary of the Company and, along with the
Company, wishes to terminate the 1995 Registration Rights Agreement with respect
to Marvel Entertainment and the Company;
NOW, THEREFORE, in consideration of these premises and the mutual
promises herein contained, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto agree
as follows:
1. TERMINATION OF 1995 REGISTRATION RIGHTS AGREEMENT; DEFINITIONS
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(a) Termination of 1995 Registration Rights Agreement. Upon the
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effectiveness of this Agreement, the 1995 Registration Rights Agreement shall
terminate.
(b) Definitions.
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Business Day: Any Monday, Tuesday, Wednesday, Thursday or Friday that is
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not a day on which banking institutions in the City of New York are authorized
by law, regulation or executive order to close.
Common Stock: The common stock, par value $0.01 per share, of the Company
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or any securities issued in exchange therefor in any recapitalization,
reclassification, merger, consolidation or similar transaction.
Debentures: The 8% Convertible Subordinated Voting Debentures of the
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Company.
Effective Date: October 1, 1998.
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Exchange Act: The Securities Exchange Act of 1934, as amended from time to
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time, or any successor statute, and the rules and regulations of the SEC
thereunder, all as in effect at the time.
Holder: Each of the Stockholders and any other Person that becomes an
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owner of Registrable Securities; provided, however, that no Person shall become
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a Holder unless such Person has executed and delivered to the Company, an
agreement, in the form of Annex A hereto, to be bound by the provisions of this
Agreement.
Person: An individual, partnership, corporation, limited liability
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company, joint venture trust or unincorporated organization, a government or
agency or political subdivision thereof or any other entity.
Preferred Stock: The 8% cumulative convertible exchangeable preferred
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stock, par value $0.01 per share, of the Company.
Prospectus: The prospectus included in any Registration Statement, as
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amended or supplemented by a prospectus supplement with respect to the terms of
the offering of any portion of the Registrable Securities covered by such
Registration Statement and by all other amendments and supplements to the
prospectus, including post-effective amendments and all material incorporated by
reference in such prospectus.
Registration Expenses: All expenses incident to the Company's performance
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of or compliance with this Agreement, including without limitation all
registration and filing fees, fees and expenses of compliance with securities or
blue sky laws (including reasonable fees and disbursements of counsel in
connection with blue sky qualifications or registrations (or the obtaining of
exemptions therefrom) of the Registrable Securities), printing expenses
(including expenses of printing Prospectuses), messenger and delivery expenses,
internal expenses (including, without limitation, all salaries and expenses of
its officers and employees
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performing legal or accounting duties), fees and disbursements of its counsel
and its independent certified public accountants (including the expenses of any
special audit or "comfort" letters required by or incident to such performance
or compliance), securities acts liability insurance (if the Company elects to
obtain such insurance), fees and expenses of any special experts retained by the
Company in connection with any registration hereunder, and fees and expenses of
other Persons retained by the Company; provided, however, that Registration
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Expenses shall not include any underwriting discounts, commissions or fees
attributable to the sale of the Registrable Securities.
Registrable Securities: (i) All shares of Preferred Stock held by any of
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the Stockholders as of the date hereof (the "Preferred Shares"); (ii) any shares
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of Common Stock into which the Preferred Shares may be converted from time to
time, (iii) any Debentures issued in exchange for the Preferred Shares, (iv) if
the Debentures are issued, any shares of Common Stock issued or issuable upon
conversion of the Debentures, (v) all shares of Common Stock held by any of the
Stockholders as of the date hereof and (vi) any other securities issued or
issuable as a result of or in connection with any stock dividend, stock split or
reverse stock split, combination, recapitalization, reclassification, merger or
consolidation, exchange or distribution in respect of the securities referred to
in clauses (i) through (v) above; provided, however, that any Registrable
Security shall cease to be such if (A) such Registrable Security shall have been
transferred pursuant to an effective Registration Statement or in compliance
with Rule 144 or (B) such Registrable Securities may be sold pursuant to section
(k) of Rule 144.
Registration Statement: Any registration statement of the Company,
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including, without limitation, the Shelf Registration Statement, filed with the
SEC which provides for the registration for sale or other transfer of the
Registrable Securities, including the Prospectus included therein, all
amendments and any supplements to such Registration Statement, including post-
effective amendments, all exhibits and all material incorporated by reference in
such Registration Statement.
Rule 144: Rule 144 promulgated under the Securities Act, as such Rule may
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be amended from time to time, or any similar successor rule thereto that may be
promulgated by the SEC.
Rule 415: Rule 415 promulgated under the Securities Act, as such Rule may
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be amended from time to time, or any similar successor rule thereto that may be
promulgated by the SEC.
SEC: The United States Securities and Exchange Commission.
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Securities Act: The Securities Act of 1933, as amended from time to time,
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or any successor statute, and the rules and regulation of the SEC thereunder,
all as in effect from time to time.
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Underwritten Offering: A registered offering in which securities are sold
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to one or more underwriters on a firm commitment basis for reoffering to the
public.
2. REGISTRATION UNDER THE SECURITIES ACT
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(a) Filing and Effectiveness. The Company shall use its reasonable
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best efforts to cause a shelf registration statement under the Securities Act
registering the resale of the Registrable Securities by the Holders (the "Shelf
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Registration Statement") to be declared effective as soon as practicable after
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the filing thereof, and thereafter to keep it continually effective until such
time as there shall cease to be outstanding any Registrable Securities.
(b) Subsequent Holders. If any Person becomes a Holder of
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Registrable Securities that were included in the Shelf Registration Statement
subsequent to the time that the Shelf Registration Statement became effective,
the Company shall add such Holder to the Shelf Registration Statement, on a
timely basis, through a post-effective amendment or a supplement to the
Prospectus, as shall be necessary in accordance with the rules of the SEC under
the Securities Act to include such Holder as a selling securityholder in a
distribution under the Shelf Registration Statement.
(c) Methods of Distribution. The Registrable Securities may be sold
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or distributed under the Shelf Registration Statement directly by the Holders as
principal or through one or more brokers, dealers or agents from time to time in
one or more transactions, including, without limitation, (i) on any securities
exchange (or quotation system operated by a national securities association) on
which the Registrable Securities are then listed, (ii) in private transactions,
(iii) in block trades, or (iv) though the writing of options (whether such
options are listed on an exchange or otherwise) on, or settlement of short sales
of, the Registrable Securities in compliance with applicable law. The Holders
may not sell or distribute the Registrable Securities under the Shelf
Registration Statement in an Underwritten Offering except as provided in Section
3 hereof.
Nothing in this Agreement shall in any way restrict any Holder from
selling or otherwise transferring the risk or benefit of ownership of securities
of the Company in any manner not provided in this Agreement in accordance with
the Securities Act and other applicable law.
3. PIGGYBACK REGISTRATION.
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(a) Piggyback Registration. If the Company at any time proposes to
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effect an Underwritten Offering 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 Shareholder"),
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whether under a previously effective shelf registration statement or a
registration statement filed for the purpose of such Underwritten Offering (a
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"Piggyback Registration"), then the Company shall in each case give written
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notice of such proposed offering to the Holders at least ten (10) Business Days
before the proposed date of filing of such registration statement (or, in the
case of a previously effective shelf registration statement, the filing of any
amendment or supplement to such shelf registration statement to permit such
Underwritten Offering), and such notice shall offer to all Holders the
opportunity to have any or all of the Registrable Securities then held by the
Holders included in such Underwritten Offering. Each Holder desiring to have
its Registrable Securities offered under this Section shall so advise the
Company in writing within five (5) Business Days after the date of receipt of
the Company's aforesaid notice (which request shall set forth the amount of
Registrable Securities proposed to be offered), and the Company shall cause to
be included in such Underwritten Offering all such Registrable Securities so
requested to be included therein, provided that the Holders thereof execute and
deliver the underwriting agreement and other customary documents related to such
offering including, if requested by the managing underwriter or underwriters,
selling stockholder questionnaires, powers of attorney and custody agreements.
(b) Cutback. (i) Priority on Primary Registrations. If a Piggyback
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Registration is an Underwritten Offering by the Company on a primary basis (a
"Primary Registration"), and the managing underwriters advise the Company in
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writing that in their good faith opinion the amount of securities requested to
be included in such registration is sufficiently large as to be likely to
materially adversely affect the success of such offering, the Company will
include in such registration, to the extent such managing underwriters advise
the Company that such securities can be included in the Offering without being
likely to materially adversely affect the success of the Offering (i) first, the
securities the Company proposes to sell, and (ii) second, the securities
requested to be sold by any of the Holders and other holders of securities of
the Company exercising similar piggy-back registration rights with respect to
that Offering, pro rata, based on the number of securities requested to be sold
by the Holders and the holders.
(ii) Priority on Secondary Registrations. If a Piggyback Registration
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is an Underwritten Offering other than a Primary Registration, and the managing
underwriters advise the Company in writing that in their good faith opinion the
amount of securities requested to be included in such registration is
sufficiently large as to be likely to materially adversely affect the success of
such registration, the Company will include in such registration, to the extent
such managing underwriters advise the Company that such securities can be
included in the Offering without being likely to materially adversely affect the
success of the Offering (i) first, the securities requested to be included
therein by a Requesting Shareholder exercising demand registration rights, (ii)
second, the securities requested to be included therein by the Company and (iii)
third, as requested by any other Holders and other holders of securities of the
Company exercising similar piggy-back registration rights with respect to that
Offering, pro rata, based on the number of securities requested to be sold by
those Holders or holders.
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4. REGISTRATION PROCEDURES.
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(a) General. In connection with the Company's registration
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obligations pursuant to this Agreement, the Company shall:
(i) prepare and file with the SEC the Shelf Registration
Statement and such amendments and post-effective amendments thereto as may
be necessary to keep the Shelf Registration Statement continuously
effective for the time period set forth in Section 2, including as required
in accordance with Item 512(a) of Regulation S-K under the Securities Act;
provided that as soon as practicable, but in no event later than three (3)
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Business Days before the filing of any Registration Statement and any
amendment thereto, any related Prospectus or any amendment or supplement
thereto (other than any amendment or supplement made solely as result of
incorporation by reference of documents filed with the SEC subsequent to
the filing of such Registration Statement), the Company shall furnish to
the Holders of the Registrable Securities covered by such Registration
Statement, copies of all such documents proposed to be filed, which
documents shall be subject to the review of such Holders; not file any
Registration Statement or any amendment thereto or any Prospectus or any
supplement thereto (other than any amendment or supplement made solely as a
result of incorporation by reference of documents filed with the SEC
subsequent to the filing of such Registration Statement) to which the
Holders of a majority of the Registrable Securities shall have reasonably
objected in writing within (2) Business Days after receipt of such
documents to the effect that such Registration Statement or amendment
thereto or Prospectus or supplement thereto does not comply in all material
respects with the requirements of the Securities Act; and comply with the
provisions of the Securities Act applicable to the Company with respect to
the disposition of all securities covered by such Registration Statement
during the applicable period in accordance with the intended method or
methods of distribution by the sellers thereof set forth in such
Registration Statement or supplement to the Prospectus in accordance with
this Agreement;
(ii) notify the selling Holders of Registrable Securities
promptly (1) when a Registration Statement, Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with respect to
any Registration Statement or post-effective amendment, when it has become
effective, (2) of any request by the SEC for amendments or supplements to
any Registration Statement or Prospectus or for additional information, (3)
of the issuance by the SEC of any comments with respect to any filing, (4)
of any stop order suspending the effectiveness of any Registration
Statement or the initiation of any proceedings for that purpose, (5) of any
suspension of the qualification of the Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose and (6) of the happening of any event which makes any
statement of a material fact made in any Registration Statement, Prospectus
or any document incorporated therein by reference untrue or which requires
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the making of any changes in any Registration Statement, Prospectus or any
document incorporated therein by reference in order to make the statements
therein (in the case of any Prospectus, in the light of the circumstances
under which they were made) not misleading; and use reasonable best efforts
to obtain as promptly as practicable the withdrawal of any order or other
action suspending the effectiveness of any Registration Statement or
suspending the qualification or registration (or exemption therefrom) of
the Registrable Securities for sale in any jurisdiction;
(iii) promptly after the filing of any document which is to be
incorporated by reference into a Registration Statement or Prospectus,
provide without charge copies of such document to the Holders of the
Registrable Securities covered thereby;
(iv) furnish to the selling Holders of Registrable Securities,
without charge, at least one manually signed or "edgarized" copy, and as
many conformed copies as may reasonably be requested, of the then effective
Registration Statement and any post-effective amendments thereto, including
financial statements and schedules, all documents incorporated therein by
reference and all exhibits (including those incorporated by reference);
(v) deliver to the selling Holders, without charge, as many
copies of the then effective Prospectus (including each prospectus subject
to completion) and any amendments or supplements thereto as such Persons
may reasonably request;
(vi) use reasonable best efforts to register or qualify or
cooperate with the selling Holders and their respective counsel in
connection with the registration or qualification of such Registrable
Securities for offer and sale under the securities or blue sky laws of such
jurisdictions as any selling Holder reasonably requests in writing and do
any and all other acts or things reasonably necessary or advisable to
enable the disposition in such jurisdictions of the Registrable Securities
covered by the then effective Registration Statement; provided, however,
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that the Company will not be required to (1) qualify to do business in any
jurisdiction where it would not otherwise be required to qualify but for
this paragraph (vi) or (2) subject itself to general taxation in any such
jurisdiction;
(vii) cooperate with the selling Holders to facilitate the
timely preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends; and enable
such Registrable Securities to be in such denominations and registered in
such names as the Holders may request at least two (2) Business Days prior
to any sale of Registrable Securities to the underwriters, if any;
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(viii) upon the occurrence of any event contemplated by clause
(6) of paragraph (ii) above, promptly prepare a supplement or post-
effective amendment to the Registration Statement or the related Prospectus
or any document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the purchasers of the
Registrable Securities, the Prospectus will not contain an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances in which they were
made, not misleading;
(ix) cause all Registrable Securities covered by the
Registration Statement to be listed on each securities exchange (or
quotation system operated by a national securities association) on which
identical securities issued by the Company are then listed, and enter into
customary agreements to effect that listing, including, if necessary, a
listing application in customary form, and provide a transfer agent for
such Registrable Securities;
(x) if the Registrable Securities are to be sold in an
Underwritten Offering pursuant to Section 3 or in a block trade or other
private placement: (1) obtain an opinion of counsel covering matters that
are no more extensive in scope than would be customarily covered in
opinions obtained in such types of transactions by issuers with similar
market capitalization and reporting and financial histories; (2) obtain a
"cold comfort" letter from the independent public accountants of the
Company and covering matters that are no more extensive in scope than would
be customarily covered in "cold comfort" letters and updates obtained in
secondary Underwritten Offerings by issuers with similar market
capitalization and reporting and financial histories, provided, however,
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that the letter described in this clause (2) shall only be required in
connection with a block trade or other private placement to the extent such
letters are being issued in respect of such types of transactions under
then prevailing accounting practices and to the extent the Company's
independent public accountants do not have a policy against issuing such
letters in connection with such offerings; and (3) deliver a certificate of
a senior executive officer of the Company to cover matters no more
extensive in scope than those matters customarily covered in officer's
certificates delivered in connection with Underwritten Offerings by issuers
with similar market capitalization and reporting and financial histories;
(xi) provide a CUSIP number for the Registrable Securities no
later than the effective date of a Registration Statement applicable
thereto;
(xii) otherwise use its reasonable best efforts to comply with
all applicable rules and regulations of the SEC relating to such
registration and the distribution of the securities being offered and make
generally available to its securities holders earnings statements
satisfying the provisions of Section 11(a) of the Securities Act, no later
than 60 days after the end of any 12-month period (or 90 days, if such
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period is a fiscal year) commencing at the end of any fiscal quarter in
which the Registrable Securities are sold in an Underwritten Offering,
block trade or other private placement, which earnings statements shall
cover such 12-month periods;
(xiii) cooperate and assist in any filings required to be made
with the National Association of Securities Dealers, Inc.; and
(xiv) make available for inspection by representatives of the
Holders of the Registrable Securities, and any attorneys or accountants
retained by the Holders, all financial and other records, pertinent
corporate documents and properties of the Company and cause the Company's
officers, directors and employees to supply all information reasonably
requested by, and to reasonably cooperate with, any such representative,
attorney or accountant in connection with such registration, and otherwise
to cooperate fully in connection with any due diligence investigation,
including making reasonably available its officers during ordinary business
hours, and permitting discussions with the independent public accountants
who have certified the Company's most recent annual financial statements,
in each case to the extent necessary to enable any Holder to conduct a
"reasonable investigation" for purposes of Section 11(a) of the Securities
Act; provided, however, that such representatives, attorneys or accountants
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enter into a confidentiality agreement, in customary form and substance
reasonably satisfactory to the Company, prior to the release or disclosure
to them of any such information, records or documents.
(b) Holder Information. The Company may require each selling Holder
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to furnish to the Company such information regarding such Holder and the
distribution of Registrable Securities to be sold by such Holder as the Company
may from time to time reasonably request in writing.
(c) Occurrence of Certain Events. Each Holder of Registrable
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Securities agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Subsection (a)(ii)(4), (5) or
(6) above, such Holder will forthwith refrain from disposing or discontinue
disposition of Registrable Securities pursuant to the then current Prospectus
(but, in the case of an event described in Subsection (a)(ii)(5), only in the
affected jurisdiction(s)) until such Holder is advised in writing by the Company
that the use of the Prospectus may be resumed. The Company shall use its best
efforts to limit the duration of any discontinuance with respect to the
disposition of Registrable Securities pursuant to this paragraph.
(d) Additional Procedures. If the Holders become entitled, pursuant
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to an event described in clause (viii) of the definition of Registrable
Securities, to receive any securities in respect of Registrable Securities that
were already included in the Shelf Registration Statement subsequent to the date
the Shelf Registration Statement is declared effective, and the Company is
unable under the securities laws to add such securities to the
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Shelf Registration Statement, the Company, as promptly as reasonably
practicable, shall file, in accordance with the procedures more particularly set
forth in this Section, an additional Shelf Registration Statement with respect
to any such Registrable Securities. The Company shall use its reasonable best
efforts to have any such additional Registration Statement declared effective as
promptly as reasonably practicable after such filing and to keep such additional
Shelf Registration Statement continuously effective during the period specified
in Section 2.
5. HOLDBACK AGREEMENTS.
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(a) Hold-Back Election. Subject to subsection (c) and the final
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sentence of this Subsection (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 (a "Hold-Back Election"), not to effect any public sale or distribution
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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, provided that, if and to
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the extent it is reasonable to do so, the Company will request of the managing
underwriter or underwriters to permit such sale or distribution prior to the
date permitted under clause (i) above.
(b) Material Development Election. Subject to Subsection (c), the
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Company shall be entitled, for a period of time not to exceed forty-five (45)
consecutive days, to require that the Holders refrain from effecting any
distribution of their Registrable Securities pursuant to the Shelf Registration
Statement if the chief executive officer of the Company determines in his
reasonable good faith judgment that, in accordance with his understanding of the
disclosure requirements of applicable securities law, such distribution would
require disclosure of any financing (other than an underwritten secondary
offering of any securities of the Company), acquisition, disposition, corporate
reorganization or other transaction or development involving the Company or any
subsidiary of the Company that is or would be material to the Company and that,
in the reasonable good faith business judgment of such chief executive officer,
such disclosure would not at that time be in the best interests of the Company
(a "Material Development Election"). The Company shall, as promptly as
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practicable, give the Holders written notice of any such Material Development
Election. If the Holders have been required to refrain from disposing of their
Registrable Securities as a result of a Material Development Election, the
Company shall, as promptly as practicable following the determination that the
Holders may recommence such sales, notify such Holders in writing of such
determination (but in any event no later than the end of such 45-day period).
(c) Limitation. In no event shall the restrictions under Subsection
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(a) or Subsection (b), pursuant to one or more Hold-Back Elections or Material
Development
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Elections, remain in effect for more than ninety (90) days in the aggregate in
any calendar year.
6. REGISTRATION EXPENSES
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The Company shall pay all Registration Expenses in connection with the
registration, offering and sale of the Registrable Securities pursuant to this
Agreement. The Holders shall pay any underwriting discounts, commissions or
fees, fees and expenses of their counsel and all other expenses incurred by them
which are attributable to the offering and sale of any Registrable Securities in
accordance with this Agreement.
7. RULE 144
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The Company shall use its reasonable best efforts to make publicly
available, pursuant to Rule 144, such information as is necessary to enable the
Holders to make sales of Registrable Securities pursuant to that Rule. The
Company shall use its reasonable best efforts to file timely with the SEC all
documents and reports required of the Company under the Exchange Act. The
Company shall furnish to any Holder, upon request, a written statement executed
on behalf of the Company as to compliance with the current public information
requirements of Rule 144.
8. INDEMNIFICATION.
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(a) Indemnification by The Company. The Company agrees to indemnify, to
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the extent permitted by law (or if indemnification is held by a court of
competent jurisdiction to be unavailable, to contribute to the amount paid or
payable by), each Holder and (as applicable) its officers and directors and each
person or entity who controls such Holder (within the meaning of the Securities
Act) and each person or entity which participates as or may be deemed to be an
underwriter in the offering or sale of such securities against all losses,
claims, damages, liabilities and expenses to which the Holders may be subject
under the Securities Act or any other statute or common law, insofar as such
losses, claims, damages, liabilities and expenses arise out of or are based upon
(i) any untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or (ii) any omission or alleged omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading, (in the case of a prospectus, always in light of the
circumstances under which the statements are made) or (iii) any violation by the
Company of the Securities Act or any state securities law, "blue sky" law, or
any other law, applicable to the Company in connection with such registration,
qualification, or compliance; provided, however, that the Company will not be
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liable to any holder in such case to the extent that any such loss, claim,
damage, liability or expense arises out of or is based upon (a) any untrue
statement or omission made in such Registration Statement or amendment or
supplement thereto in reliance upon and in conformity with the written
information furnished to the Company by such Holder expressly for use in the
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registration statement 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 Registration Statement if (x) such Registration Statement
had been later amended or supplemented in a manner that would correct 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, (y) a copy of such amendment or supplement had been
timely provided to the Holder and had not been 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 (z) there
would have been no such liability but for such failure to deliver such
prospectus by the Holder. The Company will also indemnify underwriters
participating in the distribution, their officers, directors, employees,
partners and agents, and each Person who controls such underwriters (within the
meaning of the Securities Act), to the same extent as provided above with
respect to the indemnification of the Holders of Registrable Securities, if so
requested.
(b) Indemnification by the Holders. Each Holder agrees to indemnify, to
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the extent permitted by law (or if indemnification is held by a court of
competent jurisdiction to be unavailable, to contribute to the amount paid or
payable by), the Company, its directors and officers and each person or entity
who controls the Company (within the meaning of the Securities Act) and each
person or entity which participates as or may be deemed to be an underwriter in
the offering or sale of such securities against any losses, claims, damages,
liabilities and expenses resulting from (i) any untrue or alleged untrue
statement of material fact contained in the Registration Statement, prospectus
or preliminary prospectus or any amendment thereof or supplement thereto or (ii)
any omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading, (in the case
of a prospectus, always in light of the circumstances under which the statements
are made) or (iii) any violation by the Company of the Securities Act or any
state securities law, "blue sky" law, or any other law, applicable to the
Company in connection with such registration, qualification, or compliance, but
only to the extent that such loss, claim, damage, liability or expense arises
out of or is based upon any untrue statement or omission made in such
registration statement or amendment or supplement thereto or any document in
reliance upon and in conformity with the written information furnished to the
Company by such Holder expressly for use in the registration statement.
(c) Conduct of Indemnification Proceedings. Any Person entitled to
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indemnification hereunder will (i) give prompt written notice to the
indemnifying party of any claim with respect to which it seeks indemnification;
provided, however, that failure to give such notice will not prejudice such
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person's or entity's right to indemnification from the indemnifying party,
except as to any losses suffered by such Person which are attributable to such
Person's failure to promptly give such notice to such indemnifying party and
(ii) (A) have the right to assume the defense of any claim with respect to which
it seeks indemnification and with respect to which it has given the notice
required by clause (i) of this Subsection if (x) the indemnifying party shall
have failed to assume the defense of such claim and employ counsel
12
reasonably satisfactory to the indemnified party in a timely manner or (y) in
the reasonable judgment of such Person, based upon advise of its counsel, a
conflict of interest may exist between such person and the indemnifying party
with respect to such claims (in which case, if such Person notifies the
indemnifying party in writing that such Person elects to employ separate counsel
at the expense of the indemnifying party, the indemnifying party shall not have
the right to assume the defense of such claim on behalf of such Person) or (B)
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. The indemnifying party will
not be subject to any liability for any settlement made by the indemnified party
without its consent (but such consent will not be unreasonably withheld). An
indemnifying party who is not entitled to, or elects not to, assume the defense
of a claim shall not be obligated to pay the fees and expenses of more than one
counsel for all parties indemnified by such indemnifying party with respect to
such claim (as well as one local counsel in each relevant jurisdiction), unless
in the reasonable judgment of any indemnified party a conflict of interest may
exist between such indemnified party and any other of such indemnified parties
with respect to such claim. The indemnifying party will not consent to entry of
any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to the
indemnified party of a release from all liability in respect of such claim or
litigation.
(d) Contribution. If for any reason the indemnification provided for
------------
in this Section is unavailable to an indemnified party or insufficient to hold
it harmless as contemplated by this Section, then the indemnifying party shall
contribute to the amount paid or payable by the indemnified party as a result of
such loss, claim, damage or liability in such proportion as is appropriate to
reflect the relative fault of the indemnifying party and the indemnified party
in connection with the statements or omissions that resulted in such loss,
claim, damage or liability, as well as any other relevant equitable
considerations, provided, however, that no indemnifying Holder shall be required
-------- -------
to contribute an amount greater than the dollar amount of the net proceeds
received by such indemnifying Holder with respect to the sale of the Registrable
Securities giving rise to such indemnification obligation. The relative fault
of any indemnifying or indemnified party shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by such indemnifying or indemnified party or its
affiliates or representatives, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Subsection were determined by (i) pro rata
--- ----
allocation (even if all Holders or any agents for the Holders or any
underwriters of the Registrable Securities, or all of them, were treated as one
entity for such purpose), or (ii) by any other method that does not take into
account the equitable consideration referred to in this Subsection. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) referred
to above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action, proceeding or claim. No Person guilty of
13
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentations.
(e) The indemnification and contribution provided for under this Agreement
will remain in full force and effect regardless of any investigation made by or
on behalf of the indemnified party or any officer, director or controlling
person or entity of such indemnified party and will survive the transfer of
securities and the termination of this Agreement.
9. MISCELLANEOUS.
-------------
(a) NO INCONSISTENT AGREEMENTS. The Company has not entered into and will
--------------------------
not on or after the date of this Agreement enter into any agreement which is
inconsistent with the rights granted in this Agreement to the Holders or which
otherwise conflicts with the provisions hereof.
(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, without the consent in writing of the Company and all affected Holders.
(c) NOTICES. All notices, requests, demands, deliveries and other
-------
communications (collectively, "Notices") that are required or may be given under
this Agreement shall be in writing. All Notices shall be deemed to have been
duly given or made: if by hand, immediately upon delivery; if by telecopier or
similar device, immediately upon sending, provided notice is sent on a business
day during the hours of 9:00 a.m. and 6:00 p.m. at the location of the party
receiving the Notice, but if not, then immediately upon the beginning of the
first business day after being sent; if by Federal Express, United States Postal
Service, Express Mail or any other reputable overnight delivery service, on the
scheduled delivery date thereof; and if mailed by certified mail, return receipt
requested, ten Business Days after mailing. Notwithstanding the foregoing, with
respect to any Notice given or made by telecopier or similar device, such Notice
shall not be effective unless and until (i) the telecopier or similar device
being used prints a written confirmation of the successful completion of such
communication by the party sending the Notice, and (ii) a copy of such Notice is
deposited in first class mail to the appropriate address for the party to whom
the Notice is sent. In addition, notwithstanding the foregoing, a Notice of a
change of address by a party hereto shall not be effective until received by the
party to whom such Notice of a change of address is sent. All notices are to be
given or made to the parties at the following addresses (or to such other
address as either party may designate by Notice in accordance with the
provisions of this Section):
i. if to any of the Holders, to its address set forth on Schedule 1
----------
hereto;
14
ii. If to the Company, to
Marvel Enterprises, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Secretary
Facsimile No.: 212-682-5272
Confirm: 000-000-0000
with a copy to
Battle Xxxxxx LLP
Park Avenue Tower
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxx, Esq.
Facsimile No.: 000-000-0000
Confirm: 212-856-7000
(d) 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.
(e) HEADINGS. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(f) GOVERNING LAW. This Agreement shall be governed by and construed in
-------------
accordance with the internal laws of the State of Delaware.
(g) 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.
(h) SUCCESSORS AND ASSIGNS. All covenants and agreements in this Agreement
----------------------
by or on behalf of any of the parties hereto will bind and inure to the benefit
of the respective successors and assigns of the parties hereto whether so
expressed or not. In addition, whether or not any express assignment has been
made, the provisions of this Agreement which are for the benefit of Holders are
also for the benefit of, and enforceable by, any subsequent holder of
Registrable Securities.
15
(i) REMEDIES. Any Person having rights under any provision of this
--------
Agreement shall be entitled to enforce such rights specifically or to recover
damages or to exercise any other remedy available to it at law or in equity.
The foregoing rights and remedies shall be cumulative and the exercise of any
right or remedy provided herein shall not preclude any Person from exercising
any other right or remedy provided herein. The Company agrees that monetary
damages would not be adequate compensation for any loss incurred by reason of a
breach by it of any of the provisions of this Agreement and hereby agrees to
waive the defense in any action for specific performance that a remedy at law
would be adequate.
(j) JURISDICTION; FORUM. Each party hereto consents and submits to the
-------------------
non-exclusive jurisdiction of any state court sitting in the County of New York
or federal court sitting in the Southern District of the State of New York in
connection with any dispute arising out of or relating to this Agreement. Each
party hereto waives any objection to the laying of venue in such courts and any
claim that any such action has been brought in an inconvenient forum. To the
extent permitted by law, any judgment in respect of a dispute arising out of or
relating to this Agreement may be enforced in any other jurisdiction within or
outside the United States by suit on the judgment, a certified copy of such
judgment being conclusive evidence of the fact and amount of such judgment.
Each party hereto agrees that personal service of process may be effected by any
of the means specified in Subsection (c), addressed to such party. The
foregoing shall not limit the rights of any party to serve process in any other
manner permitted by law.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
MARVEL ENTERPRISES, INC.
By: /s/ XXXX XXXXXXXXXX
---------------------------------
Name: Xxxx Xxxxxxxxxx
Title: President and Chief Executive Officer
MARVEL ENTERTAINMENT GROUP, INC.
(with respect to Section 1(a) only)
By: /s/ XXXXXXX X. XXXXXX, III
---------------------------------
Name: Xxxxxxx X. Xxxxxx, III
Title: Secretary and Vice President
16
THE STOCKHOLDERS
/s/ Xxx Xxxx
-----------------------------------------------
Xxx Xxxx
/s/ Xxxxx Xxxxxxxxxx
-----------------------------------------------
Xxxxx Xxxxxxxxxx
XXXXX XXXXXXXXXX T.A.
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------------------------
Xxxxx Xxxxxxxxxx
Trustee
THE XXXXX & XXXXX XXXXXXXXXX
FOUNDATION INC.
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: President
ZIB INC.
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: President and Chief Executive Officer
17
Schedule 1
----------
If to Xxx Xxxx:
c/o Xxx Xxxx & Associates
0000 Xxxx Xxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Telecopy: (000) 000-0000
If to Xxxxx Xxxxxxxxxx, Xxxxx Xxxxxxxxxx T.A., The Xxxxx & Xxxxx Xxxxxxxxxx
Foundation Inc. or Zib Inc.:
X.X. Xxx 0000
Xxxx Xxxxx, Xxxxxxx 00000-0000
with a copy, in each case, to
Battle Xxxxxx LLP
Park Avenue Tower
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxx, Esq.
Facsimile No.: 000-000-0000
Confirm: 000-000-0000
18
