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EXHIBIT 2.2
AGREEMENT AND PLAN OF MERGER
by and Among
TOY BIZ, INC.,
MARVEL ENTERTAINMENT GROUP, INC.
and
MEG ACQUISITION CORP.
dated as of
August 12, 1998
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TABLE OF CONTENTS
Page
ARTICLE I THE MERGER...................................................................................2
Section 1.1 The Merger.............................................................................2
Section 1.2 Closing................................................................................2
Section 1.3 Effective Time.........................................................................2
Section 1.4 Certificate of Incorporation and By-Laws...............................................2
Section 1.5 Directors and Officers of the Surviving Corporation....................................2
ARTICLE II CONVERSION OF SECURITIES.....................................................................3
Section 2.1 Common Stock of Acquisition............................................................3
Section 2.2 Conversion of Marvel Common Stock......................................................3
Section 2.3 Stock Transfer Books...................................................................3
ARTICLE III REPRESENTATIONS AND WARRANTIES
OF THE COMPANY AND ACQUISITION..........................................................................4
Section 3.1 Organization, Standing and Corporation Power...........................................4
Section 3.2 Authorization; Validity of Agreement; Company Action ..................................4
Section 3.3 Consents and Approvals; No Violations..................................................4
Section 3.4 Subsidiary Ownership...................................................................5
ARTICLE IV COVENANTS ...................................................................................5
Section 4.1 Affiliates.............................................................................5
ARTICLE V CONDITIONS...................................................................................5
Section 5.1 Conditions to Each Party's Obligation to Effect the Mergers............................5
Section 5.2 Conditions to Marvel's Obligations to Effect the Merger................................6
ARTICLE VI TERMINATION .................................................................................6
Section 6.1 Termination............................................................................6
Section 6.2 Effect of Termination..................................................................7
ARTICLE VII MISCELLANEOUS................................................................................7
Section 7.1 Fees and Expenses......................................................................7
Section 7.2 Amendment, Modification and Other Action...............................................7
Section 7.3 Nonsurvival of Representations and Warranties..........................................7
Section 7.4 Notices................................................................................7
Section 7.5 Interpretation.........................................................................8
Section 7.6 Counterparts...........................................................................8
Section 7.7 Entire Agreement, No Third Party Beneficiaries; Rights of Ownership....................8
Section 7.8 Severability...........................................................................9
Section 7.9 Governing Law..........................................................................9
Section 7.10 Assignment.............................................................................9
Section 7.11 Enforcement............................................................................9
639604.12
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of August 12,
1998, by and among Toy Biz, Inc. a Delaware corporation (the "Company"), Marvel
Entertainment Group, Inc., a Delaware corporation ("Marvel"), and MEG
Acquisition Corp., a Delaware corporation and a newly formed and direct
wholly-owned subsidiary of the Company ("Acquisition").
WHEREAS, the Board of Directors of Acquisition has unanimously approved,
and deems it advisable and in the best interests of its stockholders to
consummate, the merger (the "Merger") of Acquisition with and into Marvel, with
Marvel to be the Surviving Corporation (as hereinafter defined), upon the terms
and subject to the conditions set forth in this Agreement and in the Fourth
Amended Joint Plan of Reorganization proposed by the Company and certain senior
creditors of Marvel which is attached hereto as Exhibit A (the "Plan").
Capitalized terms used in this Agreement which are not defined in this Agreement
have the same meaning in this Agreement as in the Plan. In connection with the
Merger, each issued and outstanding share of common stock, par value $ .01 per
share, of Marvel (the "Marvel Common Stock"), will be canceled, and Stockholder
Series A Warrants, Stockholder Series B Warrants, and Stockholder Series C
Warrants (collectively, "Stockholder Warrants") and an interest in a litigation
trust, all as set forth in the Plan, will be issued to the holders of record of
shares of Marvel Common Stock as of the Effective Time (as defined in Section
1.3 hereof); and
WHEREAS, the chapter 11 trustee of Marvel has approved, and deems it
advisable and in the best interests of the stockholders and creditors of Marvel
to consummate the Merger of Acquisition with and into Marvel, with Marvel as the
Surviving Corporation (as hereinafter defined), upon the terms and subject to
the conditions set forth in this Agreement and in the Plan; and
WHEREAS, Marvel, together with eight of its wholly-owned subsidiaries
(collectively with Marvel, the "Marvel Debtors"), are chapter 11 debtors and
debtors in possession in cases pending under chapter 11 of title 11 of The
United States Code (11 U.S.C. ▇▇.▇▇. 101 et seq.) (the "Bankruptcy Code"),
having commenced voluntary cases (Nos. 96-2066 through 96-2077 (HSB)) (the
"Reorganization Cases") in the United States Bankruptcy Court for the District
of Delaware (such Reorganization Cases having subsequently been transferred to
the United States District Court for the District of Delaware (the "District
Court")); and
WHEREAS, it is the intention of the parties hereto that the transactions
contemplated hereby be implemented in connection with the consummation the Plan.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, the
parties hereto agree as follows:
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ARTICLE I
THE MERGER
Section 1.1 The Merger. Upon the terms and subject to the conditions
of this Agreement and in accordance with the General Corporation Law of the
State of Delaware (the "DGCL") and the Plan, and upon the authority granted by
the order entered by the District Court confirming the Plan (the "Confirmation
Order"), at the Effective Time (as defined in Section 1.3 hereof), Marvel and
Acquisition shall consummate the Merger pursuant to which (a) Acquisition shall
be merged with and into Marvel, and the separate corporate existence of
Acquisition shall thereupon cease, (b) Marvel shall be the successor or
surviving corporation in the Merger (sometimes hereinafter referred to as the
"Surviving Corporation") and shall continue to be covered by the laws of the
State of Delaware, including the DGCL, and (c) all of the rights, privileges,
immunities, powers and franchises of Marvel and Acquisition shall vest in the
Surviving Corporation and all obligations, duties, debts and liabilities of
Marvel and Acquisition shall become the obligations, duties, debts and
liabilities of the Surviving Corporation.
Section 1.2 Closing. Unless this Agreement shall have been terminated
and the transactions herein contemplated shall have been abandoned pursuant to
Section 6.1 hereof, and subject to the satisfaction or waiver of the conditions
set forth in Article V hereof, the closing of the Merger (the "Closing") shall
take place at 10:00 a.m. on a date to be specified by the parties hereto, which
shall be no later than the second business day after satisfaction or waiver of
all of the conditions set forth in Article V hereof (the "Closing Date"), at the
offices of Battle ▇▇▇▇▇▇ LLP, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
unless another date or place is agreed to in writing, by the parties hereto.
Section 1.3 Effective Time. The Company, Marvel and Acquisition will
cause a certificate of merger (the "Certificate of Merger") to be executed and
filed for the Merger on the Closing Date (or on such other date as to which the
Company and Marvel may agree) with the Secretary of State of the State of
Delaware (the "Secretary of State") as provided in the DGCL. The Merger shall
become effective on the date on which the Certificate of Merger has been duly
filed with the Secretary of State or such time after that date as is agreed upon
by the parties hereto and specified in the Certificate of Merger, and such time
is hereinafter referred to as the "Effective Time."
Section 1.4 Certificate of Incorporation and By-Laws. At the Effective
Time, the certificate of incorporation of Acquisition (the "Acquisition
Certificate"), as in effect immediately prior to the Effective Time, shall be
the certificate of incorporation of the Surviving Corporation until thereafter
amended in accordance with applicable law. The by-laws of Acquisition (the
"Acquisition By-Laws"), as in effect immediately prior to the Effective Time,
shall be the by-laws of the Surviving Corporation until thereafter amended in
accordance with applicable law.
Section 1.5 Directors and Officers of the Surviving Corporation. The
individuals listed on Exhibit B attached hereto shall be the directors and
officers, respectively, of the Surviving Corporation until their successors
shall have been duly elected or appointed or qualified or until their
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earlier death, resignation or removal in accordance with the Surviving
Corporation's Certificate of Incorporation and By-Laws.
ARTICLE II
CONVERSION OF SECURITIES
Section 2.1 Common Stock of Acquisition. Each share of common stock of
Acquisition issued and outstanding immediately prior to the Effective Time, by
virtue of the Merger and without any action on the part of the holder thereof,
will be converted into and become one validly issued, fully paid and
nonassessable share of common stock, $.01 par value par share, of the Surviving
Corporation.
Section 2.2 Conversion of Marvel Common Stock. As of the Effective
Time, by virtue of the Merger and without any action on the part of the Company,
Marvel, Acquisition or the holders of shares of Company Common Stock:
(a) Marvel Common Stock. Each issued and outstanding share of the
Marvel Common Stock shall be canceled, and each holder of record of shares
of Marvel Common Stock as of the Effective Time (other than shares of
Marvel Common Stock to be canceled in accordance with Section 2.2(b)
hereof) shall thereupon have the right to receive Stockholder Warrants and
an interest in a litigation trust, as set forth in the Plan. As of the
Effective Time, all shares of Marvel Common Stock shall no longer be
outstanding and shall automatically be canceled and retired and shall cease
to exist, and each holder of a certificate representing any such shares of
Marvel Common Stock shall cease to have any rights with respect thereto,
except the right to receive the certificates representing the Stockholder
Warrants (the "Stockholder Warrant Certificates") to be issued in
consideration for the shares formerly represented thereby in accordance
with this Section 2.2, without interest.
(b) Cancellation of Treasury Stock and Company-Owned Stock. All shares
of Marvel Common Stock that are owned by the Company and all shares of
Marvel Common Stock owned by Marvel or any wholly-owned subsidiary of
Marvel shall be canceled and retired and shall cease to exist and no
consideration shall be delivered in exchange therefor.
Section 2.3 Stock Transfer Books. At the Effective Time, the stock
transfer books of Marvel shall be closed and there shall be no further
registration of transfers of Marvel Common Stock or options or warrants to
purchase shares of Marvel thereafter on the records of Marvel.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND ACQUISITION
The Company and Acquisition severally represent and warrant to Marvel
as follows:
Section 3.1 Organization, Standing and Corporation Power. Each of the
Company and Acquisition is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Delaware, and each of them has
all requisite corporate power and authority to carry on its business
substantially as now conducted, except where the failure to do so would not
have, individually or in the aggregate, a Material Adverse Effect. For purposes
hereof, the term "Material Adverse Effect" means any change or effect that is or
is reasonably expected to be materially adverse to the condition (financial or
otherwise), business, assets or results of operations of the Company and its
subsidiaries taken as a whole or adversely effects the ability of the Company to
consummate the transactions contemplated by this Agreement in any material
respect or materially impairs or delays the Company's ability to perform its
obligations hereunder.
Section 3.2 Authorization; Validity of Agreement; Company Action. The
execution, delivery and performance by each of the Company and Acquisition of
this Agreement and the consummation of the Merger by the Company and Acquisition
are within the corporate powers and authority of each of the Company and
Acquisition and have been duly authorized by all necessary corporate action, as
the case may be, on the part of each of the Company and Acquisition. Each of the
Company, as sole stockholder of Acquisition, and the Board of Directors of
Acquisition has approved the Merger and no further corporate or stockholder
action is required on the part of Acquisition in connection with the
consummation of the Merger other than the filing of the Certificate of Merger as
contemplated by this Agreement. This Agreement has been duly executed and
delivered by each of the Company and Acquisition and, assuming this Agreement
constitutes the valid and binding agreement of Marvel, constitutes a valid and
binding obligation of each of the Company and Acquisition, enforceable against
each such party in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar laws
affecting creditors' rights and remedies and to general principles of equity.
The execution and delivery of this Agreement does not, and the consummation of
the transactions contemplated by this Agreement and compliance with the
provisions of this Agreement, will not conflict with any of the provisions of
the Acquisition Certificate or Acquisition By-Laws.
Section 3.3 Consents and Approvals; No Violations. Except for the
filings, permits, authorizations, consents and approvals as may be required
under, and other applicable requirements of, (a) the Securities Act of 1933, as
amended (the "Securities Act"), (b) the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), (c) the Bankruptcy Code (or filings with, or
authorizations of, the Bankruptcy Court or District Court), and (d) the DGCL,
and assuming the filings required under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust
Improvements Act of 1976, as amended (the "HSR Act"), are made and the waiting
period thereunder has been terminated or has expired, neither the execution,
delivery or performance of this Agreement by the Company and Acquisition nor the
consummation by the Company and Acquisition of the transactions contemplated
hereby nor
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compliance by the Company and Acquisition with any of the provisions hereof will
(i) conflict with or result in any breach of any provision of the certificate of
incorporation or the by-laws of the Company, Acquisition or any of their
subsidiaries, (ii) require any filing with, or permit, authorization, consent or
approval of, any court, arbitral tribunal, administrative agency or commission
or other governmental or regulatory authority or agency (a "Governmental
Entity"), or (iii) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to the Company and Acquisition, their subsidiaries or any
of their properties or assets, excluding from the foregoing clauses (ii) and
(iii) such violations, breaches or defaults which would not, individually or in
the aggregate, have a material adverse effect on the Company, Acquisition and
their subsidiaries, taken as a whole, and which will not materially impair the
ability of the Company and Acquisition to consummate the transactions
contemplated hereby or by the Plan.
Section 3.4 Subsidiary Ownership. As of the date hereof, the Company
owns all of the outstanding capital stock of Acquisition. Acquisition was formed
by the Company solely for the purpose of engaging in the transactions
contemplated by this Agreement. Except as contemplated by this Agreement,
Acquisition has not engaged, directly or through any subsidiary, in any business
activities of any type or kind whatsoever.
ARTICLE IV
COVENANTS
Section 4.1 Affiliates. Prior to the Closing Date, Marvel shall
deliver to the Company a letter identifying all persons who are "affiliates" of
Marvel for purposes of Rule 145 under the Securities Act. The Company shall use
its best efforts to cause each such person or entity to deliver to the Company
on or prior to the Closing Date a written agreement substantially in the form
attached hereto as Exhibit C. The Company shall be entitled to cause to be
placed appropriate legends on any certificates evidencing Stockholder Warrants
or shares of stock issued on exercise of Stockholder Warrants to be received by
each such person or entity pursuant to the terms of this Agreement, and to issue
appropriate stop transfer instructions to the transfer agent for such
Stockholder Warrants or shares, to the effect that such Stockholder Warrants or
shares received or to be received by such person or entity pursuant to the terms
of this Agreement may only be sold, transferred or otherwise conveyed, and the
holder thereof may only reduce such holder's interest in or risks relating to
such shares, pursuant to an effective registration statement under the
Securities Act, in accordance with the provisions of paragraph (d) of Rule 145,
or in a manner not requiring registration under or pursuant to an exemption
provided from registration under the Securities Act.
ARTICLE V
CONDITIONS
Section 5.1 Conditions to Each Party's Obligation to Effect the
Mergers. The respective obligation of each party to effect the Merger shall be
subject to the satisfaction on or prior
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to the Closing Date of each of the following conditions, any and all of which
may be waived in whole or in part by the Company, Marvel or Acquisition, as the
case may be, to the extent permitted by applicable law:
(a) HSR Act. Any waiting period (including any extension thereof)
under the HSR Act applicable to the Merger shall have expired or been
terminated;
(b) Statutes; Consents. No statute, rule, order, decree or regulation
shall have been enacted or promulgated by any Governmental Entity which
prohibits the consummation of the Merger and all governmental consents,
orders and approvals required for the consummation of the Merger and the
transactions contemplated hereby shall have been obtained and shall be in
effect at the Effective Time;
(c) Injunctions. There shall be no order or injunction of a
Governmental Entity of competent jurisdiction in effect precluding,
restraining, enjoining or prohibiting consummation of the Merger; and
(d) Confirmation Order. The District Court shall have entered the
Confirmation Order and its effectiveness and enforceability shall not be
subject to any stay or injunction and all conditions to the consummation of
the Plan shall have been satisfied or duly waived in accordance with the
Plan.
Section 5.2 Conditions to Marvel's Obligations to Effect the Merger.
Furthermore, the obligations of Marvel to consummate the Merger are subject to
the fulfillment of the conditions, which may be waived in whole or in part by
Marvel, that the representations and warranties of the Company contained in this
Agreement shall be true and correct in all material respects as of the Effective
Time after giving effect to the Merger as if made at and as of such time.
ARTICLE VI
TERMINATION
Section 6.1 Termination. This Agreement may be terminated and the
Mergers contemplated herein may be abandoned at any time prior to the Effective
Time, whether before or after stockholder approval thereof:
(a) By mutual written agreement of the Company, Marvel and
Acquisition;
(b) By Marvel or the Company and Acquisition, if the Closing shall not
have taken place on or before October 2, 1998; provided that the failure of
the Closing to occur on or before such date is not the result of the breach
of any representation or warranty or the failure to perform any covenant or
agreement or satisfy any condition hereunder by the party seeking to so
terminate;
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(c) By Marvel or the Company and Acquisition, upon written notice
given to the other if there shall be any law or regulation of any competent
authority that makes consummation of the Merger illegal or otherwise
prohibited, or if any governmental entity of competent jurisdiction shall
have issued a final non-appealable order, judgment, injunction or order
enjoining or otherwise prohibiting the transactions contemplated by this
Agreement; or
(d) By Marvel if the Company or Acquisition breach their
representations and warranties in any material respect and such breach has
not been cured to Marvel's reasonable satisfaction within 10 days of the
notice by Marvel to the Company and Acquisition of such breach.
Section 6.2 Effect of Termination. In the event of the termination of
this Agreement as provided in Section 6.1 hereof, written notice thereof shall
forthwith be given to the other party or parties specifying the provision hereof
pursuant to which such termination is made, and this Agreement shall forthwith
become null and void, and there shall be no liability on the part of any party
hereto.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Fees and Expenses. Except as contemplated by this
Agreement, all costs and expenses incurred in connection with this Agreement and
the consummation of the transactions contemplated hereby shall be paid by the
party incurring such expenses.
Section 7.2 Amendment, Modification and Other Action. Subject to
applicable law, this Agreement may be amended, modified and supplemented in any
and all respects by written agreement of the parties hereto, at any time prior
to the Closing Date with respect to any of the terms contained herein.
Section 7.3 Nonsurvival of Representations and Warranties. None of the
representations and warranties in this Agreement or in any schedule, instrument
or other document delivered pursuant to this Agreement shall survive the
Effective Time.
Section 7.4 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally,
telecopied (which is confirmed) or sent by an overnight courier service, such as
Federal Express, to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
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if to the Company or Acquisition, to:
Toy Biz, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Executive Vice President, Business Affairs
with a copy to:
Battle ▇▇▇▇▇▇, LLP
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
if to Marvel, to:
Marvel Entertainment Group, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇, Del Deo, Dolan,
Griffinger & ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Section 7.5 Interpretation. When a reference is made in this Agreement
to Sections, such reference shall be to a Section of this Agreement unless
otherwise indicated. Whenever the words "include", "includes" or "including" are
used in this Agreement they shall be deemed to be followed by the words "without
limitation". As used in this Agreement, the term "affiliate(s)" shall have the
meaning set forth in Rule 12b-2 under the Exchange Act.
Section 7.6 Counterparts. This Agreement may be executed in two or
more counterparts, all of which shall be considered one and the same agreement
and, if executed in counterparts, shall become effective when two or more
counterparts have been signed by the parties and delivered to the other parties.
Section 7.7 Entire Agreement, No Third Party Beneficiaries; Rights of
Ownership. This Agreement (including the documents and the instruments referred
to herein): (a) constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof, and (b) is not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder.
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Section 7.8 Severability. If any term, provision, covenant or
restriction of this Agreement is held by a Governmental Entity of competent
jurisdiction to be invalid, void, unenforceable or against its regulatory
policy, the remainder of the terms, provisions, covenants and restrictions of
this Agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
Section 7.9 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 conflicts of law thereof.
Section 7.10 Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned, in whole or in
part, by operation of law or otherwise by any of the parties without the prior
written consent of the other party. Subject to the preceding sentence, this
Agreement will be binding upon, inure to the benefit of, and be enforceable by,
the parties and their respective successors and assigns.
Section 7.11 Enforcement. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement, this being in addition to any other
remedy to which they are entitled at law or in equity.
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IN WITNESS WHEREOF, the Company, Marvel and Acquisition have caused
this Agreement to be signed by their respective officers thereunto duly
authorized as of the date first written above.
TOY BIZ, INC.
By:/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
Title: Executive Vice President,
Business Affairs and Secretary
MARVEL ENTERTAINMENT GROUP, INC.
By:/s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as chapter 11 trustee
MEG ACQUISITION CORP.
By:/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Secretary
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EXHIBIT A to Merger Agreement
Fourth Amended Joint Plan of Reorganization
Proposed by the Secured Lenders and Toy Biz, Inc.
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EXHIBIT B to Merger Agreement
Directors and Officers of the Surviving Corporation
Directors
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Officers
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇: President
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III: Secretary and Vice President
▇▇▇▇▇ ▇. ▇▇▇▇▇▇: Treasurer
▇▇▇▇▇▇ ▇▇▇▇▇▇▇: Vice President
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EXHIBIT C to Merger Agreement
Marvel Enterprises, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Gentlemen:
The undersigned is a holder of shares of common stock ("MEG Common
Stock") of Marvel Entertainment Group, Inc. ("MEG") and will receive Stockholder
Series A Warrants, Stockholder Series B Warrants and Stockholder Series C
Warrants (the "Warrants"), and upon exercise of such Warrants shares of common
stock and preferred stock of Marvel Enterprises, Inc. (the "Marvel Enterprises
Securities"), in connection with the merger (the "Merger") of MEG with and into
MEG Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of
Marvel Enterprises, Inc. The undersigned acknowledges that the undersigned may
be deemed an "affiliate" of MEG within the meaning of Rule 145 ("Rule 145")
promulgated under the Securities Act of 1933, as amended (the "Act"), although
nothing contained herein should be construed as an admission of such fact.
If, in fact, the undersigned were an affiliate under the Act, the
undersigned's ability to sell, assign or transfer the Marvel Enterprises
Securities received in exchange for MEG Common Stock pursuant to the Merger
might be restricted unless the securities involved in such transaction were
registered under the Act or an exemption from such registration were available.
The undersigned understands that such exemptions are limited and the undersigned
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has obtained advice of counsel as to the nature and conditions of such
exemptions, including information with respect to the applicability to the sale
of such securities of Rules 144 and 145(d) promulgated under the Act.
The undersigned hereby covenants with Marvel Enterprises, Inc. that
the undersigned will not offer to sell, assign, transfer or otherwise dispose of
any of the Marvel Enterprises Securities received in exchange for shares of MEG
Common Stock pursuant to the Merger except (i) pursuant to an effective
Registration Statement under the Act, (ii) in compliance with Rule 145 under the
Act or (iii) in a transaction which does not require registration under the Act.
In the event of a sale or other disposition pursuant to Rule 145, the
undersigned will supply Marvel Enterprises, Inc. with evidence of compliance
with such Rule, in the form of a letter in the form of Exhibit A hereto and an
opinion, in form and substance reasonably acceptable to Marvel Enterprises,
Inc., from independent counsel reasonably satisfactory to Marvel Enterprises,
Inc. The undersigned understands that Marvel Enterprises, Inc. may instruct its
transfer agent to withhold the transfer of any securities disposed of by the
undersigned except in compliance with this letter. The undersigned acknowledges
and agrees that appropriate legends will be placed on certificates representing
Marvel Enterprises Securities received by the undersigned in the Merger or held
by a transferee thereof, which legends will be removed by delivery of substitute
certificates upon receipt of an opinion in form and substance reasonably
satisfactory to Marvel Enterprises, Inc. from independent counsel reasonably
satisfactory to Marvel Enterprises, Inc. to the effect that such legends are no
longer required for purposes of the Act.
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The undersigned acknowledges that (i) the undersigned has carefully
read this letter and understands the requirements hereof and the limitations
imposed upon the distribution, sale, transfer or other disposition of Marvel
Enterprises Securities and (ii) the receipt by Marvel Enterprises, Inc. of this
letter is an inducement and a condition to Marvel Enterprises, Inc.'s
obligations to consummate the Merger.
Very truly yours,
Dated: ____________________
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EXHIBIT A to Rule 145 Letter
[DATE]
Marvel Enterprises, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Gentlemen:
On ___________, I sold ________ Stockholder Series A Warrants,
________ Stockholder Series B Warrants, _________ Stockholder Series C Warrants,
_____ shares of common stock, par value $.01 per share and/or ____________
shares of preferred stock, par value $.01 per share ("Marvel Enterprises
Securities"), of Marvel Enterprises, Inc. (the "Company") which I received
pursuant to the merger of Marvel Entertainment Group, Inc. with and into MEG
Acquisition Corp., a wholly owned subsidiary of the Company.
Based upon the most recent report or statement filed by the Company
with the Securities and Exchange Commission, the Marvel Enterprises Securities
sold by me were within the prescribed limitations set forth in paragraph (e) of
Rule 144 promulgated under the Securities Act of 1933, as amended (the "Act").
I hereby represent that the above-described Marvel Enterprises
Securities were sold in "brokers' transactions" within the meaning of Section
4(4) of the Act or in transactions directly with a "market maker" as that term
is defined in Section (3)(a)(38) of the Securities Exchange Act of 1934, as
amended. I further represent that I have not solicited or arranged for the
solicitation of orders to buy the above-described Marvel Enterprises Securities,
and that I have not made any payment in connection with the offer or sale of
such shares to any person other than to the broker who executed the order in
respect of such sale.
Very truly yours,
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