SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
MATTEL, INC.
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(Exact name of registrant as specified in its charter)
Delaware 95-1567322
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(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
333 Continental Boulevard, El Segundo, California 90245-5012
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
<TABLE>
<CAPTION>
Title of each class Name of each exchange on which
to be so registered each class is to be registered
- ------------------- ------------------------------
<S> <C>
Common Stock, $1.00 par value New York Stock Exchange
Pacific Stock Exchange
Depositary Shares, each representing New York Stock Exchange
one twenty-fifth of a share of Series
C Mandatorily Convertible Redeemable
Preferred Stock
</TABLE>
If this Form relates to the registration of a class of debt securities and is
effective upon filing pursuant to General Instruction A.(c)(1), please check
the following box. [_]
If this Form relates to the registration of a class of debt securities and is
to become effective simultaneously with the effectiveness of a concurrent
registration statement under the Securities Act of 1933 pursuant to General
Instruction A.(c)(2), please check the following box. [_]
Securities to be registered pursuant to Section 12(g) of the Act:
NONE
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Title of class
<PAGE>
Item 1. Description of Registrant's Securities to be Registered.
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Reference is made (i) to the discussion set forth under
the caption "DESCRIPTION OF CAPITAL STOCK OF MATTEL" on
pages 55-66 of the Registrant's Registration Statement
on Form S-4 (Registration No. 333-21785), filed with the
Securities and Exchange Commission on February 14, 1997,
and (ii) to Registrant's Current Report on Form 8-K
dated July 22, 1996, each of which is hereby incoporated
by reference in its entirety.
Item 2. Exhibits.
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No. Document
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2.1* Form of Certificate of Designations,
Preferences, Rights and Limitations of the
Series C Mandatorily Convertible Redeemable
Preferred Stock
2.2 Form of Deposit Agreement (incorporated
by reference to Exhibit 4.2 to the
Registrant's Registration Statement on
Form S-4 filed February 14, 1997)
2.3 Form of Depositary Receipt (incorporated
by reference to Exhibit 4.3 to the
Registrant's Registration Statement on
Form S-4 filed February 14, 1997)
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* Filed herewith.
<PAGE>
SIGNATURE
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Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this Registration Statement to
be signed on its behalf by the undersigned, thereunto duly authorized.
MATTEL, INC.
Registrant
By: /s/ Robert Normile
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Robert Normile
Vice President, Assistant Secretary
Date: March 21, 1997 and Assistant General Counsel
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<PAGE>
EXHIBIT 2.1
MATTEL, INC.
CERTIFICATE OF DESIGNATIONS
PREFERENCES, RIGHTS AND LIMITATIONS OF
SERIES C MANDATORILY CONVERTIBLE
REDEEMABLE PREFERRED STOCK
Pursuant to Section 151 of the General
Corporation Law of the State of Delaware
Mattel, Inc. (hereinafter referred to as the "Corporation"), a
corporation organized and existing under the General Corporation Law of the
State of Delaware, in accordance with the provisions of Section 151 of the
General Corporation Law of the State of Delaware, as amended (the "Delaware
Code"), does HEREBY CERTIFY that the following resolution has been duly
adopted by the Directors of the Corporation:
RESOLVED, that pursuant to the authority expressly granted to and
vested in the Directors of the Corporation (the "Directors") by the
provisions of the Restated Certificate of Incorporation of the Corporation
(the "Certificate of Incorporation"), there hereby is created, out of the
3,000,000 shares of Preferred Stock of the Corporation authorized in
Article Fourth of the Restated Certificate of Incorporation (the "Preferred
Stock"), a series of Preferred Stock of the Corporation, to be designated
"Series C Mandatorily Convertible Redeemable Preferred Stock," consisting
of 772,800 shares, which series shall have the following voting powers,
designations, preferences and relative, participating, optional and other
rights, and the following qualifications, limitations and restrictions (in
addition to the powers, designations, preferences and relative,
participating optional and other rights, and the qualifications,
limitations and restrictions, set forth in the Restated Certificate of
Incorporation which are applicable to the Preferred Stock):
SECTION I. DESIGNATION AND SIZE OF ISSUE; RANKING. A. The
designation of the series of preferred stock shall be "Series C Mandatorily
Convertible Redeemable Preferred Stock" (the "Series C Preferred Stock")
and the number of shares constituting the Series C Preferred Stock shall be
772,800 shares.
B. Any share of Series C Preferred Stock which at any time has
been redeemed for, or converted into, shares of Common Stock, par value
$1.00 per share, of the Corporation (the "Common Stock") or otherwise
reacquired by the Corporation shall, after such redemption, conversion or
other acquisition,
resume the status of authorized and unissued shares of preferred stock,
par value $1.00 per share, of the Corporation (the "Preferred Stock"),
without designation as to series until such shares are once more designated
as part of a particular series by the Board of Directors.
C. The shares of Series C Preferred Stock shall rank on a
parity, both as to payment of dividends and distribution of assets upon
liquidation, with the Corporation's Series B Voting Convertible
Exchangeable Preferred Stock (the "Series B Preferred") and any future
Preferred Stock issued by the Corporation after the date of this
Certificate of Designations that by its terms ranks pari passu with the
Series C Preferred Stock.
SECTION II. DIVIDENDS. A. The holders of record of the shares
of Series C Preferred Stock shall be entitled to receive, when and as
declared by the Board of Directors out of funds legally available therefor,
cash dividends ("Dividends") from the date of the issuance of the shares of
Series C Preferred Stock accruing at the rate per share of $10.3125 per
annum or $2.5781 per quarter, for each share of Series C Preferred Stock,
payable quarterly in arrears, on each January 1; April 1; July 1 and
October 1 (each a "Dividend Payment Date") or, if any such date is not a
business day (as defined herein), the Dividend due on such Dividend Payment
Date shall be paid on the next succeeding business day; provided, however,
that, with respect to any dividend period during which a redemption occurs,
the Corporation may, at its option, declare accrued Dividends to, and pay
such Dividends on, the date fixed for redemption, in which case such
Dividends shall be payable in cash to the holders of the shares of Series C
Preferred Stock as of the record date for such dividend payment and shall
not be included in the calculation of the related Call Price (as defined
herein). The first dividend shall be paid on the first Dividend Payment
Date subsequent to issuance of Series C Preferred Stock in connection with
the merger of Tyco Toys, Inc. with and into the Company. Dividends on
shares of Series C Preferred Stock shall be cumulative and shall accumulate
from the date of original issuance of the Series C Preferred Stock.
Dividends on shares of Series C Preferred Stock shall cease to accrue on
and after the Mandatory Conversion Date (as defined herein) or on and after
the date of the earlier conversion or redemption of the Series C Preferred
Stock, as the case may be. Dividends shall be payable to holders of record
as they appear on the stock register of the Corporation on such record
dates, not less than 15 nor more than 60 days preceding the payment date
thereof, as shall be fixed by the Board of Directors. Dividends payable on
shares of Series C Preferred Stock for any period less than a full
quarterly dividend period (or, in the
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case of the first Dividend, from the date of initial issuance of the shares
of Series C Preferred Stock to but excluding the first Dividend Payment Date)
shall be computed on the basis of a 360-day year of twelve 30-day month and
the actual number of days elapsed in any period less than one month. Dividends
shall accrue on a daily basis whether or not there are funds of the Corporation
legally available for the payment of such dividends and whether or not such
Dividends are declared. Accrued but unpaid Dividends shall cumulate as of
the Dividend Payment Date on which they first become payable, but no
interest shall accrue on accumulated but unpaid Dividends.
B. As long as shares of Series C Preferred Stock are
outstanding, no dividends (other than dividends payable in shares of, or
warrants, rights or options exercisable for or convertible into shares of
Common Stock or any other capital stock of the Corporation ranking junior
to the shares of Series C Preferred Stock as to the payment of dividends
and the distribution of assets upon liquidation (collectively, the "Junior
Stock") and cash in lieu of fractional shares in connection with any such
dividend) shall be paid or declared in cash or otherwise, nor shall any
other distribution be made (other than a distribution payable to Junior
Stock and cash in lieu of fractional shares in connection with any such
distribution), on any Junior Stock unless (i) full dividends on Preferred
Stock (including the shares of Series C Preferred Stock) that does not
constitute Junior Stock (such Preferred Stock being "Parity Preferred
Stock") have been paid, or declared and set aside for payment, for all
dividend periods terminating at or before the date of such Junior Stock
dividend or distribution payment to the extent such dividends are
cumulative; (ii) dividends in full for the current quarterly dividend
period have been paid, or declared and set aside for payment, on all Parity
Preferred Stock to the extent such dividends are cumulative; (iii) the
Corporation has paid or set aside all amounts, if any, then or theretofore
required to be paid or set aside for all purchase, retirement, and sinking
funds, if any, for any Parity Preferred Stock; and (iv) the Corporation is
not in default on any of its obligations to redeem any Parity Preferred
Stock.
C. As long as any shares of Series C Preferred Stock are
outstanding, no shares of any Junior Stock may be purchased, redeemed or
otherwise acquired by the Corporation or any, of its subsidiaries (except
in connection with a reclassification or exchange of any Junior Stock
through the issuance of other Junior Stock (and cash in lieu of fractional
shares in connection therewith) or the purchase, redemption or other
acquisition of any Junior Stock with any Junior Stock (and cash in lieu of
fractional shares in connection therewith)) nor may any funds be set aside
or made available for any sinking fund
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for the purchase or redemption of any Junior Stock unless: (i) full dividends
on Parity Preferred Stock have been paid, or declared and set aside for payment,
for all dividend periods terminating at or before the date of such purchase,
redemption or other acquisition to the extent such dividends are cumulative;
(ii) dividends in full for the current quarterly dividend period have been paid,
or declared and set aside for payment, on all Parity Preferred Stock to the
extent such dividends are cumulative; (iii) the Corporation has paid or set
aside all amounts, of any, then or theretofore required to be paid or set aside
for all purchase, retirement, and sinking funds, if any, for any Parity
Preferred Stock; and (iv) the Corporation is not in default on any of its
obligations to redeem any Parity Preferred Stock.
D. As long as any shares of Series C Preferred Stock are
outstanding, dividends or other distributions may not be declared or paid
on any Parity Preferred Stock (other than dividends or other distributions
payable in Junior Stock and cash in lieu of fractional shares in connection
therewith), and the Corporation may not purchase, redeem or otherwise
acquire any Parity Preferred Stock (except with any Junior Stock and cash
in lieu of fractional shares in connection therewith), unless either: (i)
(a) full dividends on Parity Preferred Stock have been paid, or declared
and set aside for payment, for all dividend periods terminating at or
before the date of such Parity Preferred Stock dividend, distribution,
purchase redemption or other acquisition payment to the extent such
dividends are cumulative; (b) dividends in full for the current quarterly
dividend period have been paid, or declared and set aside for payment, on
all Parity Preferred Stock to the extent such dividends are cumulative; (c)
the Corporation has paid or set aside all amounts, if any, then or
theretofore required to be paid or set aside for all purchase, retirement,
and sinking funds, if any, for any Parity Preferred Stock; and (d) the
Corporation is not in default on any of its obligations to redeem any
Parity Preferred Stock; or (ii) with respect to the payment of dividends
only, any such dividends shall be declared and paid pro rata so that the
amounts of any dividends declared and paid per share of Series C Preferred
Stock and each other share of Parity Preferred Stock shall in all cases
bear to each other the same ratio that accrued dividends (including any
accumulation with respect to unpaid dividends for prior dividend periods,
if such dividends are cumulative) per share of Series C Preferred Stock and
such other shares of Parity Preferred Stock bear to each other.
SECTION III. CONVERSION OR REDEMPTION. A. Unless previously
either redeemed by the Corporation or converted at the option of the holder
in accordance with the provisions of
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Section III(C), on July 1, 2000 (the "Mandatory Conversion Date") each
outstanding share of Series C Preferred Stock shall mandatorily convert
(the "Mandatory Conversion") into (i) shares of authorized Common Stock at
the Mandatory Conversion Rate (as defined herein) in effect on the Mandatory
Conversion Date and (ii) the right to receive cash in an amount equal to all
accrued and unpaid dividends on such share of Series C Preferred Stock (other
than previously declared dividends payable to a holder of record as of a prior
date) to but excluding the Mandatory Conversion Date, whether or not declared,
out of funds legally available for the payment of dividends, subject to the
right of the Corporation to redeem the shares of Series C Preferred Stock on or
after July 1, 1999 (the "First Call Date") and before the Mandatory
Conversion Date and the conversion of the shares of Series C Preferred
Stock at the option of the holder at any time before the Mandatory
Conversion Date. The "Mandatory Conversion Rate" shall initially be, for
each share of Series C Preferred Stock, a number of shares of Common Stock
equal to the product obtained by multiplying 27.775 by 0.48876, and shall
be subject to adjustment as set forth in Sections III(D) and III(E).
Shares of Series C Preferred Stock shall cease to be outstanding on the
Mandatory Conversion Date. The Corporation shall make such arrangements as
it deems appropriate for the issuance of certificates representing shares of
Common Stock and for the payment of cash in respect of such accrued and unpaid
dividends, if any, or cash in lieu of fractional shares, if any, in exchange
for and contingent upon surrender of certificates representing the shares of
Series C Preferred Stock, and the Corporation may defer the payment of
dividends on such shares of Common Stock and the voting thereof until, and make
such payment and voting contingent upon, the surrender of certificates
representing the shares of Series C Preferred Stock; provided, that the
Corporation shall give the holders of the shares of Series C Preferred
Stock such notice of any such actions as the Corporation deems appropriate
and upon surrender such holders shall be entitled to receive such dividends
declared and paid, if any, on such shares of Common Stock subsequent to the
Mandatory Conversion Date.
B. (i) Shares of Series C Preferred Stock are not redeemable by
the Corporation before the First Call Date. At any time and from time to
time on or after that date until immediately before the Mandatory
Conversion Date, the Corporation shall have the right to redeem, in whole
or in part, the outstanding shares of Series C Preferred Stock (subject to
the notice provisions set forth in Section III(B)(iii)). Upon any such
redemption, the Corporation shall deliver to each holder thereof, in
exchange for each such share of Series C Preferred Stock subject to
redemption, the greater of:
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(a) the number of shares of Company Common Stock equal to the quotient
of (1) the applicable Call Price (as defined below) in effect on the
redemption date, divided by (b) the Current Market Price of the Mattel
Common Stock, determined as of the trading day immediately preceding
the Notice Date (as defined below); or
(b) a number of shares of Company Common Stock equal to the product
obtained by multiplying 20.4925 by 0.48876 (the "Optional Rate").
Dividends on the shares of Series C Preferred Stock shall cease to accrue
on and after the date fixed for their redemption.
The "Call Price" of each share of Series C Preferred Stock shall
be the sum of (x) $127.575 on and after the First Call Date, to and
including September 30, 1999; $126.925 on and after October 1, 1999, to and
including December 1, 1999; $126.30 on and after January 1, 2000, to and
including March 31, 2000; $126.65 on and after April 1, 2000, to and
including May 31, 2000; and $125.000 on and after June 1, 2000, to and
including June 30, 2000; and (y) all accrued and unpaid Dividends thereon
to but not including the date fixed for redemption (other than previously
declared Dividends payable to a holder of record as of a prior date). If
fewer than all of the outstanding shares of Series C Preferred Stock are to
be called for redemption, the shares of Series C Preferred Stock to be
called for redemption shall be selected by the Corporation by lot or on a
pro rata basis (as nearly as may be) from the outstanding shares of Series
C Preferred Stock not previously called for redemption or by any other
method determined by the Board of Directors in its sole discretion to be
equitable.
(ii) The term "Current Market Price" per share of the Common
Stock on any date of determination means the lesser of (x) the average of
the Closing Prices (as defined herein) of the Common Stock for the 15
consecutive Trading Days ending on and including such date of
determination, or (y) the Closing Price of the Common Stock on such date of
determination; provided, however, that with respect to any redemption of
shares of Series C Preferred Stock, if any event resulting in an adjustment
of the Mandatory Conversion Rate occurs during the period beginning on the
first day of such 15-day period and ending on the applicable redemption
date, the Current Market Price as determined pursuant to the foregoing
shall be appropriately adjusted to reflect the occurrence of such event.
(iii) The Corporation shall provide notice of any redemption of
the shares of Series C Preferred Stock to holders of record of the shares
of Series C Preferred Stock to be
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called for redemption not less than 15 nor more than 60 days before the date
fixed for redemption. Any such notice shall be provided by mail, sent to the
holders of record of the shares of Series C Preferred Stock to be called at
each such holder's address as it appears on the stock register of the
Corporation, first class postage prepaid; provided, however, that failure to
give such notice or any defect therein shall not affect the validity of the
proceeding for redemption of any shares of Series C Preferred Stock to be
redeemed except as to the holder to whom the Corporation has failed to give
such notice or whose notice was defective. A public announcement of any call
for redemption shall be made by the Corporation before, or at the time of, the
mailing of such notice of redemption. The term "Notice Date" with respect
to any notice given by the Corporation in connection with a redemption of
the shares of Series C Preferred Stock means the date on which first occurs
either the public announcement of such redemption or the commencement of
mailing of the notice to the holders of shares of Series C Preferred Stock,
in each case pursuant to this Section III(B)(iii).
Each such notice shall state, as appropriate, the following and
may contain such other information as the Corporation deems advisable:
(a) the redemption date;
(b) that all outstanding shares of Series C Preferred Stock
are to be redeemed or, in the case of a redemption of fewer than all
outstanding shares of Series C Preferred Stock, the number of such
shares held by such holder to be redeemed;
(c) the Call Price, the number of shares of Common Stock
deliverable upon the redemption of each share of Series C
Preferred Stock to be redeemed and the Current Market Price used
to calculate much number of shares of Common Stock;
(d) the place or places where certificates for shares of
Series C Preferred Stock are to be surrendered for redemption; and
(e) that dividends on the shares of Series C Preferred
Stock to be redeemed shall cease to accrue on and after such
redemption date (except as otherwise provided herein).
(iv) The Corporation's obligation to deliver shares of Common
Stock and provide funds (in lieu of fractional share
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amounts) upon redemption in accordance with this Section III(B) shall be
deemed fulfilled if, on or before a redemption date, the Corporation shall
deposit with a bank or trust company, or an affiliate of a bank or trust
company, having an office or agency in New York, New York and having (or such
affiliate having) a combined capital and surplus of at least $50,000,000
according to its last payable statement of condition, or shall set aside or
make other reasonable provision for the issuance of, such number of shares of
Common Stock as are required to be delivered by the Corporation pursuant to
this Section III(B) upon the occurrence of the related redemption of shares of
Series C Preferred Stock and for the payment of cash in lieu of the
issuance of fractional share amounts, in trust for the account of the
holders of such shares of Series C Preferred Stock to be redeemed (and so
as to be and continue to be available therefor), with irrevocable
instructions and authority to such bank or trust company that such shares
and funds be delivered upon redemption of the shares of Series C Preferred
Stock so called for redemption. Any interest accrued on such funds shall
be paid to the Corporation from time to time. Any shares of Common Stock
or funds so deposited and unclaimed at the end of two years from such
redemption date shall be repaid and released to the Corporation, after
which the holder or holders of such shares of Series C Preferred Stock so
called for redemption shall look only to the Corporation for delivery of
shares of Common Stock and the payment of any other funds due in connection
with the redemption of the shares of Series C Preferred Stock.
(v) Each holder of shares of Series C Preferred Stock called for
redemption must surrender the certificates evidencing such shares (properly
endorsed or assigned for transfer if the Board of Directors shall so
require and the notice shall so state) to the Corporation at the place
designated in the notice of such redemption and shall thereupon be entitled
to receive certificates evidencing shares of Common Stock and to receive
any funds payable pursuant to this Section III(B) following such surrender
and following the date of such redemption. In case fewer than all the
shares represented by any such surrendered certificate are called for
redemption, a new certificate shall be issued at the expense of the
Corporation representing the unredeemed shares. If such notice of
redemption shall have been given, and if on the date fixed for redemption
shares of Common Stock and funds necessary for the redemption shall have
been irrevocably either set aside by the Corporation separate and apart
from its other funds or assets in trust for the account of the holders of
the shares to be redeemed (and so as to be and continue to be available
therefor) or deposited with a bank or trust company or an affiliate thereof
as provided herein or the Corporation shall have made
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other reasonable provision therefor, then, notwithstanding that the certificates
evidencing any shares of Series C Preferred Stock so called for redemption shall
not have been surrendered, the shares represented thereby so called for
redemption shall be deemed no longer outstanding and Dividends with respect
to the shares so called for redemption and all rights with respect to the
shares so called for redemption shall forthwith on and after such date
cease and terminate (unless the Corporation defaults on the payment of the
redemption price), except for (a) the rights of the holders to receive the
shares of Common Stock and funds, if any, payable pursuant to the Section
III(B), without interest, upon surrender of their certificates therefor and
(b) the right of the holders, pursuant to Section III(C), to convert the
shares of Series C Preferred Stock called for redemption until immediately
before the close of business on any redemption date; provided, however,
that holders of shares of Series C Preferred Stock at the close of business
on a record date for any payment of Dividends shall be entitled to receive
the Dividend payable on such shares on the corresponding Dividend Payment
Date notwithstanding the redemption of such shares following such record
date and before the Dividend Payment Date. Holders of shares of Series C
Preferred Stock that are redeemed shall not be entitled to receive
dividends declared and paid on the shares of Common Stock payable therefor
pursuant to this Section III(B), and such shares of Common Stock shall not
be entitled to vote, until such shares of Common Stock are issued upon the
surrender of the certificates representing such shares of Series C
Preferred Stock and upon such surrender such holders shall be entitled to
receive such dividends declared and paid on such shares of Common Stock
subsequent to such redemption date.
C. Shares of Series C Preferred Stock are convertible, in whole
or in part, at the option of the holder thereof ("Optional Conversion"), at
any time before the Mandatory Conversion Date, unless previously redeemed,
into shares of Common Stock at the Optional Rate, subject to adjustment
as set forth below. The right of Optional Conversion of shares of Series C
Preferred Stock called for redemption shall terminate immediately before
the close of business on any redemption date with respect to such shares.
Optional Conversion of shares of Series C Preferred Stock may be
effected by delivering certificates evidencing such shares of Series C
Preferred Stock, together with written notice of conversion and a proper
assignment of such certificates to the Corporation or in blank (and, if
applicable, cash payment of an amount equal to the Dividend attributable
to the
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current quarterly dividend period payable on such shares), to the
office of the transfer agent for the shares of Series C Preferred Stock or
to any other office or agency maintained by the Corporation for that
purpose and otherwise in accordance with Optional Conversion procedures
established by the Corporation. Each Optional Conversion shall be deemed
to have been effected immediately before the close of business on the date
on which the foregoing requirements shall have been satisfied. The
Optional Conversion shall be at the Optional Rate in effect at such time
and on such date.
Holders of shares of Series C Preferred Stock at the close of
business on a record date for any declared Dividends shall be entitled to
receive such Dividend on the corresponding Dividend Payment Date
notwithstanding the Optional Conversion of such shares of Series C
Preferred Stock following such record date and before such Dividend Payment
Date. However, shares of Series C Preferred Stock surrendered for Optional
Conversion after the close of business on a record date for any declared
Dividend and before the opening of business on the next succeeding Dividend
Payment Date must be accompanied by payment in cash of an amount equal to
the Dividends payable on such date that are attributable to the current
quarterly dividend period (unless such shares of Series C Preferred Stock
are subject to redemption on a redemption date between such record date
established for such Dividend Payment Date and such actual Dividend Payment
Date). Except as provided above, the Corporation shall make no payment of
or allowance for unpaid Dividends, whether or not in arrears, on such
shares of Series C Preferred Stock as to which Optional Conversion has been
effected or for previously declared dividends or distributions on the
shares of Common Stock issued upon Optional Conversion.
D. The Mandatory Conversion Rate and the Optional Rate are each
subject to Adjustment from time to time as provided below in this paragraph
(D).
(i) If the Corporation shall pay a stock dividend or make a
distribution with respect to its Common Stock in shares of Common Stock
(including by way of reclassification of any shares of its Common Stock),
the Mandatory Conversion Rate and the Optional Rate in effect at the
opening of business on the day following the date fixed for the
determination of shareholders entitled to receive such dividend or other
distribution shall each be increased by multiplying such Mandatory
Conversion Rate and Optional Rate by a fraction of which the numerator
shall be the sum of the number of shares of Common Stock outstanding at the
close of business on the date fixed for such
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determination, immediately before such dividend or distribution, plus the total
number of shares of Common Stock constituting such dividend or other
distribution, and of which the denominator shall be the number of shares of
Common Stock outstanding at the close of business on the date fixed for such
determination, immediately before such dividend or distribution, such increase
to become effective immediately after the opening of business on the day
following the date fixed for such determination. For the purposes of this
clause (i) the number of shares of Common Stock at any time outstanding shall
not include shares held in the treasury.
(ii) In case outstanding shares of Common Stock shall be
subdivided or split into a greater number of shares of Common Stock, the
Mandatory Conversion Rate and the Optional Rate in effect at the opening of
business on the day following the day upon which such subdivision becomes
effective shall each be proportionately increased, and, conversely, in case
outstanding shares of Common Stock shall be combined into a smaller number
of shares of Common Stock, the Mandatory Conversion Rate and the Optional
Rate in effect at the opening of business on the day following the day upon
which such combination becomes effective shall each be proportionately
reduced, such increased or reductions, as the case may be, to become
effective immediately after the opening of business on the day following
the day upon which such subdivision or combination becomes effective.
(iii) If the Corporation shall, after the date of this
Certificate of Designations, issue rights or warrants to all holders of its
Common Stock entitling them (for a period not exceeding 90 days from the
date of such issuance) to subscribe for or purchase shares of Common Stock
at a price per share less than the Current Market Price of the Common Stock
on the record date for the determination of shareholders entitled to
receive such rights or warrants, then in each case the Mandatory Conversion
Rate and the Optional Rate shall each be adjusted by multiplying the
Mandatory Conversion Rate and the Optional Rate in effect on such record
date by a fraction of which the numerator shall be the number of shares of
Common Stock outstanding on the date of issuance of such rights or
warrants, immediately before such issuance, plus the number of additional
shares of Common Stock offered for subscription or purchase pursuant to
such rights or warrants, and of which the denominator shall be the number
of shares of Common Stock outstanding on the date of issuance of such
rights or warrants, immediately before such issuance, plus the number of
shares of Common Stock which the aggregate offering price of the total
number of shares of Common Stock so offered for subscription or purchase
pursuant to such rights or warrants would purchase at
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such Current Market Price (determined by multiplying such total number of
shares by the exercise price of such rights or warrants and dividing the
product so obtained by such Current Market Price). Shares of Common Stock
held by the Corporation or by another corporation of which a majority of the
shares entitled to vote in the election of directors are held, directly or
indirectly, by the Corporation shall not be deemed to be outstanding for
purposes of such computation. Such adjustment shall become effective at
the opening of business on the business day next following the record date
for the determination of shareholders entitled to receive such rights or
warrants. To the extent that shares of Common Stock are not delivered
after the expiration of such right or warrants, the Mandatory Conversion
Rate and the Optional Rate shall each be readjusted to the Mandatory
Conversion Rate and the Optional Rate which would then be in effect had the
adjustments made after the issuance of such rights or warrants been made
upon the basis of issuance of rights or warrants in respect of only the
number of shares of Common Stock actually delivered.
(iv) If the Corporation shall pay a dividend or make a
distribution to all holders of its Common Stock consisting of evidences of
its indebtedness, cash or other assets (including shares of capital stock
of the Corporation other than Common Stock but excluding any cash dividends
or distributions, other than Extraordinary Cash Distributions (as defined
herein) and dividends referred to in clauses (i) and (ii) above) or shall
issue to all holders of its Common Stock rights or warrants to subscribe
for or purchase any of its securities (other than those referred to in
clause (iii) above), then in each such case, the Mandatory Conversion Rate
and the Optional Rate shall each be adjusted by multiplying the Mandatory
Conversion Rate and the Optional Rate in effect on the record date for such
dividend or distribution or for the determination of shareholders entitled
to receive such rights or warrants, as the case may be, by a fraction of
which the numerator shall be the Current Market Price per share of the
Common Stock on such record date, and of which the denominator shall be
such Current Market Price per share of Common Stock less either (a) the
fair market value (as determined by the Board of Directors, whose
determination shall be conclusive) on such record date of the portion of
the assets or evidences of indebtedness so distributed, or of such
subscription rights or warrants, applicable to one share of Common Stock,
or (b) if applicable, the amount of the Extraordinary Cash Distribution.
Such adjustment shall become effective on the opening of business on the
business day next following the record date for such dividend or
distribution or for the determination of holders entitled to receive such
rights or warrants, as the case may be. The term "Extraordinary Cash
Distribution" means, with respect to any consecutive
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12-month period, all cash dividends and cash distributions on the Common
Stock during such period (other than cash dividend and cash distributions
for which prior adjustment to the Mandatory Conversion Rate and Optional Rate
was previously made) to the extent such dividends and distributions exceed, on
a per share of Common Stock basis, 10% of the average daily Closing Price
of the Common Stock over such period.
(v) Any shares of Common Stock issuable in payment of a dividend
or other distribution shall be deemed to have been issued immediately
before the close of business on the record date for such dividend or other
distribution for purposes of calculating the number of outstanding shares
of Common Stock under this Section III.
(vi) Anything in this Section III notwithstanding, the
Corporation shall be entitled (but shall not be required) to make such
upward adjustments in the Mandatory Conversion Rate, the Optional Rate and
the Call Price in addition to those set forth by this Section III, as the
Corporation, in its sole discretion, shall determine to be advisable, in
order that any stock dividends, subdivision of stock, distribution of
rights to purchase stock or securities, or distribution of securities
convertible into or exchangeable for stock (or any transaction that could
be treated as any of the foregoing transactions pursuant to Section 305 of
the Internal Revenue Code of 1986, as amended) hereafter made by the
Corporation to its shareholders shall not be taxable.
(vii) In any case in which this Section III(D) shall require
that an adjustment as a result of any event become effective at the opening
of business on the business day next following a record date and the date
fixed for conversion pursuant to Section III(A) or redemption pursuant to
Section III(B), on and after such record date, but before the occurrence of
such event, the Corporation may, in its sole discretion, elect to defer
paying to such holder any amount in cash in lieu of a fractional share of
Common Stock pursuant to Section IV until after the occurrence of such
event.
(viii) All adjustments to the Mandatory Conversion Rate and the
Optional Rate shall be calculated to the nearest 1/100th of a share of
Common Stock. No adjustment in the Mandatory Conversion Rate or in the
Optional Rate shall be required unless such adjustment would require an
increase or decrease of at least one percent therein; provided, however,
that any adjustments which by reason of this Section III(D) are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment. All adjustments to the
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Mandatory Conversion Rate and Optional Rate shall be made successively.
(ix) Before taking any action that would result in an adjustment
affecting the Mandatory Conversion Rate or the Optional Rate such that the
conversion price (for purposes of this Section, an amount equal to the Call
Price divided by the Mandatory Conversion Rate or the Optional Rate,
respectively, as in effect from time to time) would be below the then par
value of the Common Stock, the Corporation shall take any corporate action
which may, in the opinion of its counsel, be necessary in order that the
Corporation may validly and legally issue fully paid and nonassessable
shares of Common Stock at the Mandatory Conversion Rate or the Optional
Rate as so adjusted.
(x) Before redeeming any shares of Series C Preferred Stock, the
Corporation shall take any corporate action which may, in the opinion of
its counsel, be necessary in order that the Corporation may validly and
legally issue fully paid and nonassessable shares of Common Stock upon such
redemption.
E. In case of any reclassification of the Common Stock, any
consolidation of the Corporation with, or merger of the Corporation into,
any other entity, any merger of any entity into the Corporation (other than
a merger that does not result in a reclassification, conversion, exchange
or cancellation of the outstanding shares of Common Stock), any sale or
transfer of all or substantially all of the assets of the Corporation or
any compulsory share exchange whereby the Common Stock is converted into
other securities, cash or other property (a "Transaction"), then each share
of Series C Preferred Stock will, after consummation of such Transaction,
be entitled to be converted (i) on the Mandatory Conversion Date into the
kind and amount of securities, cash or other property receivable upon
consummation of such Transaction by a holder of the number of shares of
Common Stock into which such share of Series C Preferred Stock would have
been converted if the conversion on the Mandatory Conversion Date had
occurred immediately before the date of consummation of such Transaction,
plus the right to receive cash in an amount equal to all accrued and unpaid
dividends on such share of Series C Preferred Stock (other than previously
declared dividends payable to a holder of record as of a prior date), (ii)
upon redemption by the Corporation on any redemption date in exchange for
the kind and amount of securities, cash or other property receivable upon
consummation of such Transaction by a holder of the number of shares of
Common Stock that would have been issuable at the Call Price in effect on
such redemption date upon a redemption of such share of Series C Preferred
Stock immediately before
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consummation of such Transaction (assuming that, if the Notice Date for such
redemption is not before such Transaction, the Notice Date had been the date
of such Transaction; and assuming in each case that such holder of share of
Common Stock failed to exercise rights of election, if any, as to the kind or
amount of securities, cash or other property receivable upon consummation of
such transaction (provided that, if the kind or amount of securities, cash or
other property receivable upon consummation of such transaction is not the
same for each non-electing share, then the kind and amount of securities, cash
or other property receivable upon consummation of such transactin for each
non-electing share will be deemed to be the kind and amount so receivable per
share by a plurality of the non-electing shares)) or (iii) at the option of the
holder, into the kind and amount of securities, cash or other property
receivable upon consummation of such Transaction by a holder of the number
of shares of Common Stock into which such share of Series C Preferred Stock
might have been converted immediately before consummation of such
Transaction. The kind and amount of securities into or for which the
shares of Series C Preferred Stock will be convertible or redeemable after
consummation of such Transaction will be subject to adjustment as described
in Section III(D) following the date of consummation of such Transaction.
F. Whenever the Mandatory Conversion Rate and the Optional Rate
are adjusted as provided in Section III(D), the Corporation shall: (i)
forthwith compute the adjusted Mandatory Conversion Rate and Optional Rate
in accordance with this Section III and prepare a certificate signed by the
Chief Financial Officer, any Vice President, the Treasurer or the
Controller of the Corporation setting forth the adjusted Mandatory
Conversion Rate and the Optional Rate, the method of calculations thereof
in reasonable detail and the facts requiring such adjustment and upon which
such adjustment is based, which certificate shall be conclusive, final and
binding evidence of the correctness of the adjustment, and shall file such
certificate forthwith with the transfer agent for the shares of Series C
Preferred Stock and the Common Stock, and (ii) promptly mail a notice
stating that the Mandatory Conversion Rate and the Optional Rate have been
adjusted, the facts requiring such adjustment and upon which such
adjustment is based and setting forth the adjusted Mandatory Conversion
Rate and Optional Rate, to the holders of record of the outstanding shares
of Series C Preferred Stock.
G. In case, at any time while any of the shares of Series C
Preferred Stock are outstanding, (i) the Corporation shall declare a
dividend (or any other distribution) on the
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Common Stock, excluding any cash dividends other than Extraordinary Cash
Distributions; (ii) the Corporation shall authorize the issuance to all holders
of the Common Stock of rights or warrants to subscribe for or purchase shares
of the Common Stock or of any other subscription rights or warrants; or
(iii) the Corporation shall enter into or authorize the entry into any
Transaction; then the Corporation shall cause to be filed at each office or
agency maintained for the purpose of conversion of the shares of Series C
Preferred Stock, and shall cause to be mailed to the holders of shares of
Series C Preferred Stock at their last addresses as they shall appear on
the stock register of the Corporation, at least 10 business days before the
date hereinafter specified in clause (A) or (B) below (or the earlier of
the dates hereinafter specified, in the event that more than one date is
specified), a notice stating (A) the date on which a record is to be taken
for the purpose of such dividend distribution, rights or warrants, or, if a
record is not to be taken, the date as of which the holders of Common Stock
of record to be entitled to such dividend, distribution, rights or warrants
are to be determined, or (B) the date on which any such Transaction is
expected to become effective, and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange their
Common Stock or securities or other property (including cash), if any,
deliverable upon such Transaction. The failure to give or receive the
notice required by the paragraph (G) or any defect therein shall not affect
the legality or validity of any such dividend, distribution, right or
warrant of other action.
SECTION IV. NO FRACTIONAL SHARES. No fractional shares of
Common Stock shall be issued upon redemption or conversion of any the
shares of the Series C Preferred Stock. In lieu of any fractional share
otherwise issuable in respect of the aggregate number of shares of the
Series C Preferred Stock of any holder that are redeemed or converted on
any redemption date or upon Mandatory Conversion or Optional Conversion,
such holder shall be entitled to receive an amount in cash (computed to the
nearest cent) equal to the same fraction of the Current Market Price of the
Common Stock, determined as of the Notice Date, in the case of redemption
by the Corporation, or the trading day immediately preceding (i) the
Mandatory Conversion Date, in the case of a Mandatory Conversion, or (ii)
the effective date of conversion, in the case of an Optional Conversion by
the holder. If more than one share of Series C Preferred Stock shall be
surrendered for conversion or redemption at one time by or for the same
holder the number of full shares of Common Stock issuable upon conversion
thereof shall be computed on the basis of the aggregate number of shares of
the Series C Preferred Stock so surrendered or redeemed.
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SECTION V. RESERVATION OF COMMON STOCK. The Corporation shall
at all times reserve and keep available out of its authorized and unissued
Common Stock, solely for issuance upon the conversion or redemption of
shares of the Series C Preferred Stock, as herein provided, free from
preemptive rights, such maximum number of shares of Common stock as shall
from time to time be issuable upon the Mandatory Conversion or Optional
Conversion or redemption of all the shares of Series C Preferred Stock then
outstanding.
SECTION VI. DEFINITIONS. As used in this Certificate of
Designations:
(i) The term "business day" shall mean any day other than a
Saturday, Sunday, or a day on which banking institutions in the State of
New York are authorized or obligated by law or executive order to close;
(ii) The term "Closing Price", on any day, shall mean the last
sale price as shown on the New York Stock Exchange Composite Tape on such
day, or, in case no such sale takes place on such day, the average of the
reported closing bid and asked prices on the New York Stock Exchange, or,
if the Common Stock is not listed or admitted to trading on such Exchange,
on the principal national securities exchange on which the Common Stock is
listed or admitted to trading, or, if not listed or admitted to trading on
any national securities exchange, the average of the closing bid and asked
prices of the Common Stock on the Nasdaq, or, if the Common Stock is not
included on Nasdaq, any interdealer quotation system or any comparable
system, or if not available in such manner, as furnished by any New York
Stock Exchange member firm selected in good faith from time to time by the
Board of Directors for that purpose;
(iii) The term "record date" shall be such date as from time to
time fixed by the Board of Directors with respect to the receipt of
dividends, the receipt of a redemption price upon redemption or the taking
of any action or exercise of any voting right permitted hereby; and
(iv) The term "Trading Day" shall mean a date on which the New
York Stock Exchange (or any successor to such Exchange) is open for the
transaction of business.
SECTION VII. PAYMENT OF TAXES. The Corporation shall pay any
and all documentary, stamp or similar issue or transfer taxes payable in
respect of the issue or delivery of shares of Common Stock on the
redemption or conversion of shares of Series C Preferred Stock pursuant to
Section III;
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provided, however, that the Corporation shall not be required
to pay any tax which may be payable in respect of any registration of
transfer involved in the issue or delivery of shares of Common Stock in a
name other than that of the registered holder of shares of Series C
Preferred Stock redeemed or converted or to be redeemed or converted, and
no such issue or delivery shall be made unless and until the period
requesting such issue has paid to the Corporation the amount of any such
tax or has established, to the satisfaction of the Corporation, that such
tax has been paid.
SECTION VIII. LIQUIDATION RIGHTS. In the event of any voluntary
or involuntary liquidation, dissolution, or winding up of the Corporation,
and subject to the rights of holders of any other series of Preferred
Stock, the holders of outstanding shares of Series C Preferred Stock are
entitled to receive the sum of $125 per share, plus an amount equal to any
accrued and unpaid Dividends thereon, out of the assets of the Corporation
available for distribution to shareholders, before any distribution of
assets is made to holders of Common Stock or any other capital stock
ranking junior to the shares of Series C Preferred Stock upon liquidation,
dissolution, or winding up. If upon any voluntary or involuntary
liquidation, dissolution, or winding up of the Corporation, the assets of
the Corporation are insufficient to permit the payment of the full
preferential amounts payable with respect to the shares of Series C
Preferred Stock and all other series of Parity Preferred Stock, the holders
of shares of Series C Preferred Stock and of all other series of Parity
Preferred Stock shall share ratably in any distribution of assets of the
Corporation in proportion to the full respective preferential amounts to
which they are entitled. After payment of the full amount of the
liquidating distribution to which they are entitled, the holders of shares
of Series C Preferred Stock shall not be entitled to any further
participation in any distribution of assets by the Corporation. A
Transaction will not be deemed to be a voluntary or involuntary
liquidation, dissolution or winding up of the Corporation.
SECTION IX. VOTING RIGHTS. A. The holders of shares of Series
C Preferred Stock shall have the right with the holders of Common Stock to
vote in the election of directors and upon each other matter coming before
any meeting of the holders of Common Stock. Each share of Series C
Preferred Stock will be entitled to a number of votes equal to the product
obtained by multiplying 25 by 0.48876. The holders of shares of Series C
Preferred Stock and the holders of Common Stock shall vote together as
one class on such matters except as otherwise provided by law or by the
Articles of Incorporation.
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B. In the event that the equivalent of six quarterly dividends
payable on the Series C Preferred Stock shall be in arrears, the number of
directors of the Corporation will be increased by two and the holders of
shares of Series C Preferred Stock shall have the exclusive right, voting
separately and as a class, with each share of Series C Preferred Stock
entitled to 20 votes, to elect the two additional directors (the "Series C
Preferred Stock Directors"). Such right shall continue until all dividends
in arrears and dividends in full for the currently quarterly period have
been paid or declared and set apart for payment. The term of office of any
director elected by the holders of shares of Series C Preferred Stock will
terminate on the earlier of (i) the next annual meeting of shareholders at
which a successor has been elected and qualified or (ii) the termination of
the right of holders of shares of Series C Preferred Stock to elect the
Series C Preferred Stock Directors.
C. The Corporation shall not, without the approval of the
holders of at least 66-2/3 percent of the shares of Series C Preferred
Stock then outstanding: (i) amend, alter, or repeal any of the provisions
of the Restated Certificate of Incorporation or By-Laws of the Corporation
so as to affect adversely the powers, preferences or rights of the holders
of shares of Series C Preferred Stock then outstanding or reduce the
minimum time for any required notice to which the holders of shares of
Series C Preferred Stock then outstanding may be entitled (an amendment of
the Restated Certificate of Incorporation to authorize or create, or to
increase the authorized amount of, Common Stock or other Junior Stock or
any stock of any class ranking on a parity with the Series C Preferred
Stock being deemed not to affect adversely the powers, preferences or
rights of the holders of the shares of Series C Preferred Stock); (ii)
authorize or create, or increase the authorized amount of, any stock of any
class, or any security convertible into capital stock of any class, ranking
prior to the Series C Preferred Stock either as to the payment of dividends
or the distribution of assets upon liquidation, dissolution or winding up
of the Corporation; (iii) merge or consolidate with or into any other
corporation, unless each holder of shares of Series C Preferred Stock
immediately preceding such merger or consolidation receives or continues to
hold in the resulting corporation the same number of shares, with
substantially the same rights and preferences, as correspond to the shares
of Series C Preferred Stock so held as contemplated by Section III(E); or
(iv) voluntarily dissolve, liquidate or wind up the affairs of the
Corporation.
D. The Corporation shall not, without the approval of the
holders of at least a majority of the shares of Series C
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Preferred Stock then outstanding: (i) increase the authorized number of shares
of Preferred Stock; or (ii) create any other class or classes of capital stock
of the Corporation ranking on a parity with the Preferred Stock, either as
to payment of dividends or the distribution of assets upon liquidation,
dissolution or winding up of the Corporation, or create any stock or other
security convertible into or exchangeable for or evidencing the right to
purchase any stock of such other class ranking on a parity with the
Preferred Stock, or increase the authorized number of shares of any such
other class or amount of such other stock or security.
E. Notwithstanding the provisions set forth in Sections IX(C)
and IX(D) no such approval described therein of the holders of the shares
of Series C Preferred Stock shall be required if, at or before the time
when such amendment, alteration or repeal is to take effect or when the
authorization, creation, increase or issuance of any such prior or parity
stock or convertible security is to be made, or when such consolidation or
merger, voluntary liquidation, dissolution or winding up, sale, lease,
conveyance, purchase or redemption is to take effect, as the case may be,
provision is made for the redemption of all shares of Series C Preferred
Stock at the time outstanding.
IN WITNESS WHEREOF, the Corporation has caused this certificate
to be signed and attested this _____ day of _____________, 1997.
MATTEL, INC.
By:
-----------------------------
Name:
Title:
Attest:
- ----------------------------
Name:
Title:
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