Exhibit F
SALES PLAN
Sales Plan dated April 17, 2002 (this "Sales Plan") between
Whippoorwill Associates, Inc. (as agent for its clients) ("Seller") and Sea
Port Group Securities LLC ("SeaPort"), acting as agent for Seller.
A. RECITALS
1. This Sales Plan is entered into between Seller and SeaPort for the
purpose of establishing a trading plan that complies with the requirements
of Rule 10b5-1(c)(1) under the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
2. Seller is establishing this Sales Plan in order to permit the
orderly disposition of a portion of Seller's holdings of the common stock,
par value $0.01 per share (the "Stock"), of Marvel Enterprises, Inc. (the
"Issuer").
B. SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS
1. As of the date hereof, Seller is not aware of any material
nonpublic information concerning the Issuer or its securities. Seller is
entering into this Sales Plan in good faith and not as part of a plan or
scheme to evade compliance with the federal securities laws.
2. While this Sales Plan is in effect, Seller agrees not to enter into
or alter any corresponding or hedging transaction or position with respect
to the securities covered by this Sales Plan and agrees not to alter or
deviate from the terms of this Sales Plan.
3. Seller agrees that Seller shall not, directly or indirectly,
communicate any information relating to the Stock or the Issuer to any
employee of SeaPort or its affiliates who is involved, directly or
indirectly, in executing this Sales Plan at any time while this Sales Plan
is in effect.
4. Seller agrees to provide SeaPort with a certificate dated as of the
date hereof and signed by the Issuer substantially in the form of Exhibit A
hereto prior to commencement of the Plan Sales Period (as defined below).
5. Seller agrees to complete, execute and deliver to SeaPort a seller
representation letter dated as of the date hereof substantially in the form
of Exhibit B hereto prior to the commencement of the Plan Sales Period.
6. Seller has consulted with Seller's own advisors as to the legal,
tax, business, financial and related aspects of, and has not relied upon
SeaPort or any person affiliated with SeaPort in connection with, Seller's
adoption and implementation of this Sales Plan. Seller acknowledges that
SeaPort is not acting as a fiduciary or an advisor for Seller.
7 Seller agrees that until this Sales Plan has been terminated Seller
shall not, without prior written notice to SeaPort (i) enter into a binding
contract with respect to the purchase or sale of Stock on behalf of its
clients with another broker, dealer or financial institution (each, a
"Financial Institution"), (ii) instruct another Financial Institution to
purchase or sell Stock on behalf of its clients or (iii) adopt a plan for
trading with respect to Stock on behalf of its clients other than this
Sales Plan.
8 (a) Seller agrees to make all filings, if any, required under Rule
144 or Rule 145, Sections 13(d), 13(g) and 16 of the Exchange Act in a
timely manner, to the extent any such filings are applicable to Seller.
(b) Seller agrees that Seller shall at all times during the Plan Sales
Period (as defined below), in connection with the performance of this Sales
Plan, comply with all applicable laws, including, without limitation,
Section 16 of the Exchange Act and the rules and regulations promulgated
thereunder.
9 (a) Seller represents and warrants that the Stock to be sold
pursuant to this Sales Plan is currently eligible for sale under Rule 144
or 145.
(b) Seller agrees not to take, and agrees to cause any person or
entity with which Seller would be required to aggregate sales of Stock
pursuant to paragraph (a)(2) or (e) of Rule 144 not to take, any action
that would cause the sales hereunder not to meet all applicable
requirements of Rule 144.
(c) Seller agrees to complete, execute and deliver to SeaPort Forms
144 for the sales to be effected under this Sales Plan at such times and in
such numbers as SeaPort shall request.
(d) Seller acknowledges and agrees that Seller does not have, and
shall not attempt to exercise, any influence over how, when or whether to
effect sales of Stock pursuant to this Sales Plan.
C. SEAPORT'S REPRESENTATIONS, WARRANTIES AND COVENANTS
1. SeaPort agrees to conduct all sales pursuant to this Sales Plan in
accordance with the manner of sale requirement of Rule 144 of the
Securities Act and in no event shall SeaPort effect any sale if such sale
would exceed the then-applicable amount limitation under Rule 144, assuming
SeaPort's sales pursuant to this Sales Plan and the sales listed on
Schedule A hereto are the only sales subject to that limitation.
D. IMPLEMENTATION OF THE PLAN
1. Seller hereby appoints SeaPort to sell shares of Stock pursuant to
the terms and conditions set forth herein. Subject to such terms and
conditions, SeaPort hereby accepts such appointment.
2. SeaPort is authorized to begin selling Stock pursuant to this Sales
Plan on April 17, 2002 and shall cease selling Stock on the earliest to
occur of (i) the date on which SeaPort receives notice of the dissolution
of Seller, (ii) the date on which the Issuer or any other person publicly
announces a tender or exchange offer with respect to the Stock or a merger,
acquisition, reorganization, recapitalization or comparable transaction
affecting the securities of the Issuer as a result of which the Stock is to
be exchanged or converted into shares of another company, (iii) the date on
which SeaPort receives notice of the commencement or impending commencement
of any proceedings in respect of or triggered by Seller's bankruptcy or
insolvency, (iv) the date of the next trading "window" as defined in the
Issuer's trading policy applicable to its officers and directors, or (v)
the date that the aggregate number of shares of Stock sold pursuant to this
Sales Plan reaches the Total Share Amount (as defined below) (the "Plan
Sales Period").
3. (a) SeaPort shall sell shares of Stock during the Plan Sales Period
for the account of Seller under ordinary principles of best execution
subject to the following restrictions:
(i) SeaPort shall not sell any shares of Stock pursuant to this
Sales Plan at a price of less than $7.75 per share (before
deducting any commission, commission equivalent, xxxx-up or
differential and other expenses of sale);
(ii) SeaPort shall sell no more than 650,155 shares of Stock
pursuant to this Sales Plan during the Plan Sales Period (The
"Total Share Amount"); and
(iii) SeaPort shall sell no more than 50,000 shares of Stock
pursuant to this Sales Plan during any single Trading Day.
A "Trading Day" is any day during the Plan Sales Period that the New York
Stock Exchange (the "Principal Market') is open for business and the Stock
trades regular way on the Principal Market.
(b) If, consistent with ordinary principles of best execution or for
any other reason, SeaPort has not sold the Total Share Amount by the end of
the Plan Sales Period then (i) SeaPort's obligation to sell pursuant to
this Sales Plan shall be deemed to have been satisfied and (ii) if any such
shortfall exists after the close of trading on the last Trading Day of the
Plan Sales Period, SeaPort's authority to sell such shares for the account
of Seller under this Sales Plan shall terminate.
(c) The share price referred to in paragraph D.3(a) above shall be
adjusted automatically on a proportionate basis to take into account any
stock split, reverse stock split or stock dividend with respect to the
Stock or any change in capitalization with respect to the Issuer that
occurs during the Plan Sales Period.
4. SeaPort shall not sell Stock hereunder at any time when:
(i) SeaPort, in its reasonable judgment, has determined that a
market disruption, banking moratorium, outbreak or escalation
of hostilities or other crisis or calamity that could, in
SeaPort's judgment, impact sales of the Stock has occurred;
or
(ii) SeaPort, in its reasonable discretion, has determined that it
is prohibited from doing so by a legal, contractual or
regulatory restriction applicable to it or its affiliates or
to Seller or Seller's affiliates or clients (other than any
such restriction relating to Seller's possession or alleged
possession of material nonpublic information about the Issuer
or the Stock).
5. SeaPort may sell Stock on any national securities e0 xchange, in
the over-the-counter market, on an automated trading system or otherwise.
E. TERMINATION
1. This Sales Plan may not be terminated prior to the end of the Plan
Sales Period, except that it may be terminated at any time by written
notice from Seller received by SeaPort's compliance office at the address
or fax number set forth in paragraph E.4 below if legal or regulatory
restrictions applicable to Seller or Seller's affiliates or clients (other
than any such restrictions relating to Seller's possession or alleged
possession of material nonpublic information about the Issuer or the Stock)
would prevent SeaPort from selling Stock for Seller's account during the
Plan Sales Period.
F. GENERAL
1. Proceeds from each sale of Stock effected under the Sales Plan will
be delivered to Seller's account number ____________ on a normal three-day
settlement basis less any commission, commission equivalent, xxxx-up or
differential and other expenses of sale to be paid to SeaPort, provided
that any commission, commission equivalent, xxxx-up or differential
hereunder shall be $0.05 per share of Stock sold.
2. Seller and SeaPort acknowledge and agree that this Sales Plan is a
"securities contract," as such term is defined in Section 741(7) of Title
11 of the United States Code (the "Bankruptcy Code"), entitled to all of
the protections given such contracts under the Bankruptcy Code.
3. This Sales Plan constitutes the entire agreement between the
parties with respect to this Sales Plan and supercedes any prior agreements
or understandings with regard to the Sales Plan.
4. All notices to SeaPort under this Sales Plan shall be given to
SeaPort's compliance office in the manner specified by this Sales Plan by
telephone at 000-000-0000, by facsimile at 000-000-0000 or by certified
mail to the address below:
Sea Port Group Securities LLC
Attn: Xxxx Xxxx
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
5. Seller's rights and obligations under this Sales Plan may not be
assigned or delegated without the written permission of SeaPort. SeaPort's
rights and obligations under this Sales Plan may not be assigned or
delegated (other than an assignment or delegation to an entity controlling,
controlled by or under common control with SeaPort) without the written
permission of Seller.
6. This Sales Plan may be signed in any number of counterparts, each
of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
7. If any provision of this Sales Plan is or becomes inconsistent with
any applicable present or future law, rule or regulation, that provision
will be deemed modified or, if necessary, rescinded in order to comply with
the relevant law, rule or regulation. All other provisions of this Sales
Plan will continue and remain in full force and effect.
8. This Sales Plan shall be governed by and construed in accordance
with the internal laws of the State of New York and may be modified or
amended only by a writing signed by the parties hereto.
IN WITNESS WHEREOF, the undersigned have signed this Sales Plan as of
the date first written above.
Whippoorwill Associates, Inc
/s/ Xxxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Managing Director & President
Sea Port Group Securities LLC
/s/ Xxxx Xxxx
-------------------------------------
Name: Xxxx Xxxx
Title: Chief Operating Officer
EXHIBIT A
ISSUER REPRESENTATION
1. Marvel Enterprises, Inc. (the "Issuer") represents that it has
reviewed and approved the Sales Plan dated April 17, 2002 (the "Sales
Plan") between Whippoorwill Associates, Inc ("Seller") and Sea Port Group
Securities LLC ("SeaPort") relating to the common stock, par value $0.01
per share of the Issuer (the "Stock").
2. The sales to be made by SeaPort for the account of Seller pursuant
to the Sales Plan have been approved by the Issuer in accordance Issuer's
xxxxxxx xxxxxxx policies.
Dated: April 17, 2002
Marvel Enterprises, Inc.
By:/s/ Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
Title: Executive Vice President
EXHIBIT B
SELLER REPRESENTATION LETTER
1. As of the date hereof, Seller is not aware of any material
nonpublic information concerning the Issuer or its securities. Seller is
entering into this Sales Plan in good faith and not as part of a plan or
scheme to evade compliance with the federal securities laws.
2. Seller understands and agrees that if it is an affiliate or a
control person for purposes of Rule 144 under the Securities Act of 1933,
as amended, all sales will be in accordance with Rule 144. Seller agrees
not to take any action that would cause Seller to aggregate sales of stock
pursuant to Rule 144, and will not take any action that would cause the
sales under the Sales Plan not to comply with Rule 144.
3. Seller will notify Sea Port Group Securities LLC of any other sale
transactions that are not contemplated by this Sales Plan. Seller has no
offsetting hedging transactions and will not enter into any hedging
transactions while the Sales Plan is in effect.
4. Seller will have no subsequent influence over how, when, or whether
to effect sales pursuant to this Sales Plan.
Dated: April 17, 2002
Whippoorwill Associates, Inc
/s/ Xxxxxxx Xxxxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Managing Director & President
SCHEDULE A
Date of Sale Amount of Shares Sold
------------ ---------------------
March 25, 2002 67,800
March 26, 2002 10,000
March 27, 2002 160,000
March 28, 2002 56,974
April 1, 2002 58,600
April 2, 2002 32,000
April 3, 2002 101,100
April 4, 2002 93,074
April 8, 2002 132,200
April 9, 2002 53,000
April 10, 2002 75,000
April 11, 2002 30,800
April 12, 2002 44,300
