<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 26, 1997
REGISTRATION NO. ________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
MATTEL, INC.
(Exact name of registrant as specified in its charter)
Delaware 95-1567322
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
333 Continental Boulevard
El Segundo, California 90245-5012
(310) 252-2000
(Address, including zip code, and telephone number, including
area code of registrant's principal executive offices)
------------------
LELAND P. SMITH, ESQ.
Assistant General Counsel and Secretary
MATTEL, INC.
333 Continental Boulevard
El Segundo, California 90245-5012
(310) 252-4821
------------------
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
------------------
COPIES TO:
CYNTHIA M. DUNNETT
THOMAS A. WALDMAN
Riordan & McKinzie
300 South Grand Avenue, 29th Floor
Los Angeles, California 90071
(213) 629-4824
------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form S-3 are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being offered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended (the "Securities Act"), other than securities offered only in
connection with dividend or interest reinvestment plans, check the following
box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [_]
------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===========================================================================================================================
AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT
TITLE OF EACH CLASS OF TO BE OFFERING AGGREGATE OF
SECURITIES TO BE REGISTERED REGISTERED PRICE PER SHARE (1) OFFERING PRICE (1) REGISTRATION FEE
===========================================================================================================================
<S> <C> <C> <C> <C>
Common Stock, par value $1.00 per share 2,752,330 shares $33.25 $91,514,972 $27,732
===========================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) under the Securities Act, based on the average
of the high and low sales prices, $33.875 and $32.625, respectively, on
September 24, 1997, as reported on the New York Stock Exchange.
------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO
SAID SECTION 8(a), MAY DETERMINE.
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
PROSPECTUS SUBJECT TO COMPLETION
DATED SEPTEMBER 26, 1997
2,752,330 Shares
MATTEL, INC.
Common Stock
Par Value $1.00 Per Share
------------------------
The 2,752,330 shares (the "Shares") of Common Stock, par value $1.00 per share
("Common Stock"), of Mattel, Inc. ("Mattel" or the "Company") are offered by the
entity or entities named herein under "Selling Stockholders" and may be resold
by the Selling Stockholders in the public market.
The Selling Stockholders may resell the Shares from time to time in transactions
on the New York Stock Exchange (the "NYSE") or the Pacific Exchange, Inc. (the
"PSE"), at prices prevailing on such exchanges, or in negotiated transactions,
among other forms of distribution. See "Plan of Distribution." Sales of the
Shares may be effected by selling such securities to or through agents
designated from time to time or through broker-dealers, and such broker-dealers
may receive compensation in the form of discounts, concessions or commissions
from the sellers thereof. Such sellers and any broker-dealer who acts in
connection with the sales of Shares may be deemed to be "underwriters" as that
term is defined in the Securities Act of 1933, as amended (the "Securities
Act"), and any commissions received by them and profit on any resale of the
Shares might be deemed to be underwriting discounts and commissions under the
Securities Act. Salomon Brothers Inc, one of the Selling Stockholders, is
offering as a principal, for its own account, 1,430,231 shares of Common Stock.
The Company has been informed that the Selling Stockholders other than Salomon
Brothers Inc may, but are not obligated, to sell securities held by them and
registered hereunder through Salomon Brothers Inc. In addition, Salomon Brothers
Inc expects to offer and sell Common Stock in the course of its business as a
broker-dealer and may act as principal or agent in such transactions. To the
extent required, the specific amount of Common Stock to be sold, the purchase
price and public offering price, the names of any resale agent, dealer or
underwriter, and the terms and amount of any applicable commission or discount
with respect to a particular offer will be set forth in a Prospectus Supplement
and/or post-effective amendment to the Registration Statement of which this
Prospectus constitutes a part.
None of the proceeds from the sale of the Shares will be received by Mattel.
Mattel has agreed to bear certain expenses in connection with the registration
and sale of the Shares being registered hereby. See "Plan of Distribution."
The Common Stock is traded on the NYSE and the PSE under the symbol "MAT." On
September 24, 1997, the reported closing price of Mattel's Common Stock on the
NYSE was $32.625 per share.
The date of this Prospectus is ____________, 1997.
_________________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
_________________________
SALOMON BROTHERS INC
<PAGE>
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION
OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED OR INCORPORATED BY REFERENCE IN
THIS PROSPECTUS, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST
NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR BY ANY OTHER
PERSON. ALL INFORMATION CONTAINED IN THIS PROSPECTUS IS AS OF THE DATE OF THIS
PROSPECTUS. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER
SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO
CHANGE IN THE AFFAIRS OF THE COMPANY OR IN THE FACTS HEREIN SET FORTH SINCE THE
DATE HEREOF. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A
SOLICITATION OF ANY OFFER TO BUY ANY SECURITY OTHER THAN THE SECURITIES COVERED
BY THIS PROSPECTUS, NOR DOES IT CONSTITUTE AN OFFER TO OR SOLICITATION OF ANY
PERSON IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION MAY NOT LAWFULLY
BE MADE.
2
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
AVAILABLE INFORMATION........................................... 3
DOCUMENTS INCORPORATED BY REFERENCE............................. 3
RISK FACTORS AND FORWARD-LOOKING STATEMENTS..................... 4
THE COMPANY..................................................... 4
USE OF PROCEEDS................................................. 5
THE SELLING STOCKHOLDERS........................................ 5
DESCRIPTION OF CAPITAL STOCK.................................... 6
General 6
Common Stock.................................................. 7
Description of Preference Share Purchase Rights............... 7
Preferred Stock............................................... 9
Series B Voting Convertible Exchangeable Preferred Stock...... 9
Series C Mandatorily Convertible Redeemable Preferred Stock... 10
Mattel Series C Depositary Shares............................. 17
PLAN OF DISTRIBUTION............................................ 21
TRADEMARK MATTERS............................................... 22
LEGAL OPINION................................................... 22
EXPERTS......................................................... 22
</TABLE>
i
<PAGE>
AVAILABLE INFORMATION
Mattel has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (together with all amendments
and exhibits thereto, the "Registration Statement") under the Securities Act
relating to the Shares. This Prospectus does not contain all of the information
set forth in the Registration Statement, certain parts of which are omitted in
accordance with the rules and regulations of the Commission. For further
information with respect to the Company and the Common Stock, reference is
hereby made to the Registration Statement and the Exhibits and Schedules
thereto. Statements contained herein concerning the provisions of certain
documents are not necessarily complete, and in each instance, reference is made
to the copy of such document filed as an exhibit to the Registration Statement
or otherwise filed with the Commission. Each such statement is qualified in its
entirety by such reference.
Mattel is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended, (the "Exchange Act") and the rules and
regulations thereunder, and in accordance therewith files reports, proxy
statements and other information with the Commission. Such reports, proxy
statements and other information filed by Mattel can be inspected and copied at
the public reference facilities maintained by the Commission at Room 1024,
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 and at the
following Regional Offices of the Commission: Room 3190, Northwest Atrium
Center, 500 West Madison Street, Chicago, Illinois 60661-2511; and 13th Floor, 7
World Trade Center, New York, New York 10048. Copies of such material can be
obtained from the Public Reference Section of the Commission at Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed rates. Such
reports, proxy statements and other information concerning the Company are also
available for inspection at the offices of the NYSE at 20 Broad Street, New
York, New York 10005 and the PSE at 301 Pine Street, San Francisco, California
94104, on which exchanges certain securities of Mattel are listed.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents, which Mattel has filed with the Commission pursuant
to the Exchange Act, are hereby incorporated by reference in, and shall be
deemed to be a part of, this Prospectus:
(i) Mattel's Annual Report on Form 10-K for the year ended
December 31, 1996;
(ii) The portions of Mattel's Notice of Annual Meeting of
Stockholders and Proxy Statement, dated March 24, 1997, that have been
incorporated by reference into the Form 10-K for the year ended December 31,
1996;
(iii) Mattel's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1997;
(iv) Mattel's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1997;
(v) Current Reports on Form 8-K filed by Mattel with the
Commission dated February 5, 1997; February 14, 1997; March 5, 1997; March 19,
1997; March 20, 1997; March 27, 1997; April 17, 1997; April 25, 1997; May 15,
1997; July 25, 1997; and July 30, 1997;
(vi) The description of the Company's Series B Voting
Convertible Exchangeable Preferred Stock, par value $1.00 per share (the "Series
B Preferred Stock") and Series C Mandatorily Convertible Redeemable Preferred
Stock, par value $1.00 per share (the "Series C Preferred Stock") and Series C
Depositary Shares set forth in Mattel's and Tyco Toys, Inc.'s joint proxy
statement and prospectus filed with the Commission on Form S-4 dated February
14, 1997; and
(vii) The description of the Company's Common Stock contained in
the Company's Current Report on Form 8-K filed with the Commission on July 22,
1996.
3
<PAGE>
All documents filed by Mattel pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act subsequent to the date of this Prospectus and prior to the
termination of the offering made hereby shall be deemed to be incorporated by
reference into this Prospectus and to be a part thereof from the respective
dates of filing of such documents. Any statement contained in this Prospectus or
in a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Prospectus to
the extent that a statement contained herein (or in any other subsequently filed
document which also is incorporated or deemed to be incorporated by reference in
this Prospectus) modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed to constitute a part of this
Prospectus except as so modified or superseded.
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, upon the written or oral request of such person, a
copy of any or all of the foregoing documents which have been incorporated by
reference herein (other than exhibits to such documents unless such exhibits are
specifically incorporated by reference therein). Requests for such copies should
be directed to: Secretary, Mattel, Inc., 333 Continental Boulevard, El Segundo,
California 90245-5012, telephone (310) 252-2000.
RISK FACTORS AND FORWARD-LOOKING STATEMENTS
Certain information incorporated by reference into this Prospectus includes
"forward-looking statements" within the meaning of the Private Securities
Litigation Reform Act of 1995 and is subject to the safe harbor created by that
Act. Forward-looking statements can be identified by the use of forward-looking
terminology, such as "may," "will," "should," "expect," "anticipate,"
"estimate," "continue," "plans," "intends" or other similar terminology. Such
forward-looking statements, which relate to, among other things, the financial
condition, results of operations and business of the Company, are subject to
certain risks and uncertainties that could cause actual results to differ
materially from those set forth in such statements. These include without
limitation: the Company's dependence on the timely development, introduction and
customer acceptance of new products; possible weaknesses of international
markets; the impact of competition on revenues and margins; the effect of
currency fluctuations on reportable income; and other risks and uncertainties as
may be detailed from time to time in the Company's public announcements and
filings with the Commission. Additional information on the risks and
uncertainties that could affect the Company's financial condition, results of
operations and business is included in the documents incorporated by reference
herein.
THE COMPANY
Mattel, Inc. designs, manufactures, markets and distributes a broad variety
of toy products on a worldwide basis. The Company's business is dependent in
great part on its ability each year to redesign, restyle and extend existing
core products and product lines and to design and develop innovative new toys
and product lines. New products have limited lives, ranging from one to three
years, and generally must be updated and refreshed each year.
Core brands have historically provided the Company with relatively stable
growth. Among the Company's major core brands are BARBIE fashion dolls and doll
clothing and accessories; the Company's Disney-licensed toys; FISHER-PRICE toys
and juvenile products; SESAME STREET characters; HOT WHEELS vehicles and
playsets; MATCHBOX; CABBAGE PATCH KIDS; Tyco Electric Racing and Tyco Radio
Control; the UNO and SKIP-BO card games; and the SCRABBLE game, which the
Company markets outside of the United States and Canada.
Mattel was incorporated in California in 1948 and reincorporated in Delaware
in 1968. Its executive offices are located at 333 Continental Boulevard, El
Segundo, California 90245-5012, telephone (310) 252-2000.
4
<PAGE>
USE OF PROCEEDS
The Shares are being sold by the holders thereof (the "Selling Stockholders")
and, accordingly, the Company will receive none of the proceeds therefrom. The
Selling Stockholders will receive the Shares upon conversion of 53,631 shares
of Series B Preferred Stock. See "Description of Capital Stock -- Series B
Voting Convertible Exchangeable Preferred Stock."
THE SELLING STOCKHOLDERS
All of the shares of Common Stock offered hereby are offered by the Selling
Stockholders. Any sales of such Shares will be for the account of such persons
or entities and none of the proceeds of such offering will be received by the
Company.
The following table sets forth, with respect to the Selling Stockholders,
the number of shares of Common Stock owned by each Selling Stockholder prior to
this offering, the number of shares of Common Stock offered for each Selling
Stockholder's account and the number of shares held by each Selling Stockholder
after the anticipated completion of this offering. None of the Selling
Stockholders owned prior to this offering, and none will own after this
offering, more than one percent (1%) of the Company's outstanding Common Stock
(based on the number of shares outstanding on the date of this Prospectus). The
Shares will be issued to the Selling Stockholders upon conversion of 53,631
shares of Series B Preferred Stock.
<TABLE>
<CAPTION>
Shares of
Common Stock Shares of Shares After
Owned Prior to Common Stock Completion of
Name of Selling Stockholder this Offering Offered this Offering(1)
------------------------------------------- -------------- ------------ ----------------
<S> <C> <C> <C>
Salomon Brothers Inc, and all successors and 16,831(3) 1,430,231 16,831
assigns (2)
Corporate Partners (4) 5,825 1,322,099 5,825
TOTALS: 22,656 2,752,330 22,656
</TABLE>
____________________
(1) As of September 17, 1997, on a pro forma basis after giving effect to
completion of the Offering.
(2) Salomon Brothers International Ltd., an affiliate of Salomon Brothers Inc,
intends to transfer ownership of 27,869 shares of Series B Preferred Stock
to Salomon Brothers Inc prior to or upon the effectiveness of the
Registration Statement. On September 24, 1997, Salomon Inc., the indirect
parent of Salomon Brothers Inc, announced that it would merge with Travelers
Group's Smith Barney Holdings Inc. subsidiary. In connection with this
merger, it is possible that Salomon Brothers Inc may be merged with and into
a subsidiary or affiliate of Smith Barney Holdings Inc. which would become
the Selling Stockholder, in place of Salomon Brothers Inc, hereunder. The
merger between Smith Barney Holdings Inc. and Salomon Inc. is expected to be
completed during the fourth quarter of 1997.
(3) Prior to the Offering, Salomon Brothers Inc will also own 27,869 shares of
Series B Preferred Stock, which it intends to convert into the shares of
Common Stock to be offered hereby upon effectiveness of the Registration
Statement, at a conversion price of approximately $20.46 per share. Cash
will be paid in lieu of issuing fractional shares upon conversion. As of
September 17, 1997, Salomon Brothers Inc had a net short position of
1,311,969 shares of Common Stock.
(4) The shares listed opposite Corporate Partners in the column entitled "Shares
of Common Stock Offered" represent the shares of Common Stock issuable upon
conversion of 25,762 shares of Series B Preferred Stock, which shares are
convertible at a conversion price of $20.46 per share. Of such shares of
Series B Preferred Stock, approximately 85%, 9% and 6% are owned of record
by Corporate Partners, L.P., The State Board of Administration of Florida
("SBA") and Corporate Offshore Partners, L.P., respectively. Corporate
Advisors,
5
<PAGE>
L.P. is the sole general partner of Corporate Partners, L.P. and Corporate
Offshore Partners, L.P. and as such, has sole voting and investment power as
to the shares of Series B Preferred Stock held by them (and the shares of
Common Stock issuable upon conversion thereof). Corporate Advisors, L.P.
also serves as investment manager over a certain investment management
account for SBA and has sole voting and dispositive power with respect to
the shares of Series B Preferred Stock held by SBA (and the shares of Common
Stock issuable upon conversion thereof). SBA may own additional shares of
Common Stock either directly or in accounts not managed by Corporate
Advisors, L.P., which shares are not reflected herein. Corporate Advisors,
L.P. also currently owns 5,825 shares of Common Stock for its own account
which are not being registered under the Registration Statement and which
are listed under "Shares of Common Stock Owned Prior to this Offering" and
"Shares After Completion of this Offering" in the table above. LFCP Corp. is
the sole general partner of Corporate Advisors, L.P. and is a wholly owned
subsidiary of Lazard Freres & Co. LLC. Jonathan Kagan, a Managing Director
of Lazard Freres & Co. LLC, President of LFCP Corp. and a Managing Director
of Corporate Advisors, L.P. and David Golub a Managing Director of LFCP
Corp. and of Corporate Advisors, L.P. were directors of Tyco Toys, Inc.
("Tyco") from May 1994 until March 27, 1997, the date Tyco was merged into
the Company. Corporate Partners, L.P., Corporate Offshore Partners, L.P.,
SBA (solely with respect to securities in the investment account over which
Corporate Advisors, L.P. has sole voting and dispositive power), Corporate
Advisors, L.P. and LFCP Corp. are herein referred to as "Corporate
Partners."
Corporate Partners currently expects to convert all of the 25,762
shares of Series B Preferred Stock owned by it into shares of Common Stock to
be offered hereby upon effectiveness of the Registration Statement, although
it is not obligated to do so. In the event some or all of such shares of
Series B Preferred Stock are not converted or if any of the shares of Common
Stock issuable upon conversion thereof are not sold, Corporate Partners would
retain such shares of Series B Preferred Stock (or Common Stock, as the case
may be), after completion of the offering, notwithstanding the amount set
forth in the "Shares After Completion of this Offering" column in the above
table.
DESCRIPTION OF CAPITAL STOCK
The following statements with respect to the Company's capital stock are
subject to the detailed provisions of the Company's Restated Certificate of
Incorporation (as amended, the "Certificate of Incorporation") and Bylaws, as
amended (the "Bylaws"), the Rights Agreement (as defined below) and the Deposit
Agreement (as defined below). These statements do not purport to be complete
and are qualified in their entirety by reference to the terms of the Certificate
of Incorporation, the Bylaws, the Rights Agreement and the Deposit Agreement,
which are incorporated by reference as exhibits to the Registration Statement.
GENERAL
Mattel's authorized capital stock as of the date of this Prospectus consists
of 600,000,000 shares of Common Stock, $1.00 par value per share, 3,000,000
shares of Preferred Stock, $1.00 par value per share, and 20,000,000 shares of
Preference Stock, $.01 par value per share. Mattel does not presently have
outstanding, and Mattel's Certificate of Incorporation does not authorize, any
other classes of capital stock. The issued and outstanding shares of Common
Stock and Preferred Stock are duly authorized, validly issued, fully paid and
nonassessable.
COMMON STOCK
Holders of shares of Common Stock have no preemptive, redemption or
conversion rights. The holders of Common Stock are entitled to receive
dividends when and as declared by the Mattel Board of Directors out of funds
legally available therefor. Upon liquidation, dissolution or winding up of
Mattel, the holders of Common Stock may
6
<PAGE>
share ratably in the net assets of Mattel and liquidating distributions to
holders of Preferred Stock or Preference Stock, if any. Each holder of Common
Stock is entitled to one vote per share of Common Stock held of record by such
holder and may cumulate its votes in the election of directors. As of September
15, 1997, there were 290,867,581 shares of Common Stock outstanding. Each
outstanding share of Common Stock is accompanied by a right to purchase one one-
hundredth (128/37,500ths as adjusted to reflect a series of stock splits) of a
share of Mattel Series E Junior Participating Preference Stock, $.01 par value
per share (the "Series E Preference Shares"). There are 1,500,000 shares of
Series E Preference Shares authorized for issuance. There are currently no
Series E Preference Shares outstanding. See "--Description of Preference Share
Purchase Rights."
The registrar and transfer agent for the Common Stock is The First National
Bank of Boston.
DESCRIPTION OF PREFERENCE SHARE PURCHASE RIGHTS
On February 7, 1992, the Mattel Board of Directors declared a dividend of one
preference share purchase right (a "Right") for each outstanding share of Common
Stock. The dividend was paid on February 17, 1992 (the "Record Date") to the
stockholders of record on that date. At the date the dividend was declared and
paid, each Right entitled the registered holder to purchase from the Company one
one-hundredth of a Series E Preference Share at a price per share of $150 (the
"Purchase Price"), subject to adjustment. Subsequent to the Record Date, and
pursuant to the terms of the Rights, the number of one one-hundredths of a share
of Series E Preference Shares purchasable from the Company upon exercise of a
Right was adjusted to 128/37,500ths of a share of Series E Preference Shares,
reflecting a series of stock splits in the underlying Common Stock paid in the
form of a series of dividends on the Common Stock. The description and terms of
the Rights are set forth in a Rights Agreement dated as of February 7, 1992 (the
"Rights Agreement") between the Company and The First National Bank of Boston,
as Rights Agent (the "Rights Agent").
Until the earlier to occur of (i) 10 days following a public announcement
that a person or group of affiliated or associated persons (an "Acquiring
Person") have acquired beneficial ownership of 20% or more of the outstanding
Common Stock or (ii) 10 business days (or such later date as may be determined
by action of the Board of Directors prior to such time as any person or group of
affiliated persons becomes an Acquiring Person) following the commencement of,
or announcement of an intention to make, a tender offer or exchange offer the
consummation of which would result in the beneficial ownership by a person or
group of 20% or more of the outstanding Common Stock (the earlier of such dates
being called the "Distribution Date"), the Rights are evidenced, with respect to
any Common Stock certificate outstanding as of the Record Date, by such Common
Stock certificate with a copy of the Summary of Rights pertaining to such Rights
(the "Summary of Rights") attached thereto.
The Rights Agreement provides that, until the Distribution Date (or earlier
redemption or expiration of the Rights), the Rights will be transferred with and
only with the Common Stock. Until the Distribution Date (or earlier redemption
or expiration of the Rights), new Common Stock certificates issued after the
Record Date upon transfer or new issuance of Common Stock will contain a
notation incorporating the Rights Agreement by reference. Until the
Distribution Date (or earlier redemption or expiration of the Rights), the
surrender for transfer of any certificates for Common Stock outstanding as of
the Record Date, even without such notation or a copy of the Summary of Rights
being attached thereto, will also constitute the transfer of the Rights
associated with the Common Stock represented by such certificate. As soon as
practicable following the Distribution Date, separate certificates evidencing
the Rights ("Right Certificates") will be mailed to holders of record of the
Common Stock as of the close of business on the Distribution Date and such
separate Right Certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date. The Rights will
expire on February 17, 2002 (the "Final Expiration Date"), unless the Final
Expiration Date is extended or unless the Rights are earlier redeemed or
exchanged by the Company, in each case as described below.
The Purchase Price payable, and the number of Series E Preference Shares or
other securities or property issuable, upon exercise of the Rights are subject
to adjustment from time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or reclassification of, the Series E
Preference Shares, (ii) upon
7
<PAGE>
the grant to holders of the Series E Preference Shares of certain rights or
warrants to subscribe for or purchase Series E Preference Shares at a price, or
securities convertible into Series E Preference Shares with a conversion price,
less than the then-current market price of the Series E Preference Shares or
(iii) upon the distribution to holders of the Series E Preference Shares of
evidences of indebtedness or assets (excluding regular periodic cash dividends
paid out of earnings or retained earnings or dividends payable in Series E
Preference Shares) or of subscription rights or warrants (other than those
referred to above).
The number of outstanding Rights and the number of one one-hundredths of a
Preference Share issuable upon exercise of each Right are also subject to
adjustment in the event of a stock split of the Common Stock or a stock dividend
on the Common Stock payable in Common Stock or subdivision, consolidation or
combinations of the Common Stock occurring, in any such case, prior to the
Distribution Date.
Series E Preference Shares purchasable upon exercise of the Rights will not
be redeemable. Each Preference Share will be entitled to a minimum preferential
quarterly dividend payment of $1 per share but will be entitled to an aggregate
dividend of 292.969 (as adjusted) times the dividend declared per share of
Common Stock. In the event of liquidation, the holders of the Series E
Preference Shares will be entitled to a minimum preferential liquidation payment
of $100 per share but will be entitled to an aggregate payment of 292.969 (as
adjusted) times the payment made per share of Common Stock. Each Series E
Preference Share will have 292.969 (as adjusted) votes, voting together with the
Common Stock. Finally, in the event of any merger, consolidation or other
transaction in which shares of Common Stock are exchanged, each Series E
Preference Share will be entitled to receive 292.969 (as adjusted) times the
amount received per share of Common Stock. These rights are protected by
customary antidilution provisions.
Because of the nature of the Series E Preference Shares' dividend,
liquidation and voting rights, the value of the fractional interest
(128/37,500ths as adjusted) in a Preference Share purchasable upon exercise of
each Right should approximate the value of one share of Common Stock.
In the event that, after a person or group has become an Acquiring Person,
the Company is acquired in a merger or other business combination transaction or
50% or more of its consolidated assets or earning power are sold, proper
provision will be made so that each holder of a Right will thereafter have the
right to receive, upon the exercise thereof at the then current exercise price
of the Right, that number of shares of common stock of the acquiring company
which at the time of such transaction will have a market value of two times the
exercise price of the Right. In the event that any person or group of
affiliated or associated persons becomes an Acquiring Person, proper provisions
shall be made so that each holder of a Right, other than Rights beneficially
owned by the Acquiring Person (which will thereafter be void), will thereafter
have the right to receive upon exercise that number of shares of Common Stock
having a market value of two times the exercise price of the Right.
At any time after any person or group becomes an Acquiring Person and prior
to the acquisition by such person or group of 50% or more of the outstanding
shares of Common Stock, the Board of Directors of the Company may exchange the
Rights (other than Rights owned by such person or group which will have become
void), in whole or in part, at an exchange ratio of one share of Common Stock,
or one one-hundredth (128/37,500ths as adjusted) of a Series E Preference Share
(or of a share of a class or series of the Company's preference stock having
equivalent rights, preferences and privileges), per Right (subject to
adjustment).
With certain exceptions, no adjustment in the Purchase Price will be required
until cumulative adjustments require an adjustment of at least 1% in such
Purchase Price. No fractional Series E Preference Shares will be issued (other
than fractions which are integral multiples of one one-hundredth of a Series E
Preference Share, which may, at the election of the Company, be evidenced by
depositary receipts) and in lieu thereof, an adjustment in cash will be made
based on the market price of the Series E Preference Shares on the last trading
date prior to the date of exercise.
At any time prior to the time an Acquiring Person becomes such, the Board of
Directors of the Company may redeem the Rights in whole, but not in part, at a
price of $.0034133 per Right (as adjusted) (the "Redemption
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Price"). The redemption of the Rights may be made effective at such time, on
such basis and with such conditions as the Board of Directors in its sole
discretion may establish. Immediately upon any redemption of the Rights, the
right to exercise the Rights will terminate and the only right of the holders of
Rights will be to receive the Redemption Price.
The terms of the Rights may be amended by the Board of Directors of the
Company without the consent of the holders of the Rights, including an amendment
to lower certain thresholds described above to not less than the greater of (i)
the sum of .001% and the largest percentage of the outstanding shares of Common
Stock then known to the Company to be beneficially owned by any person or group
of affiliated or associated persons (other than (a) the Company, (b) any
subsidiary of the Company, (c) any employee benefit plan of the Company or any
subsidiary of the Company, (d) any entity holding Common Stock for or pursuant
to the terms of any such plan or (e) E.M. Warburg, Pincus & Co., Inc., a
Delaware corporation, and its affiliates and associates) and (ii) 10%, except
that from and after such time as any person or group of affiliated or associated
persons becomes an Acquiring Person, no such amendment may adversely affect the
interests of the holders of the Rights.
For the purpose of calculating the various percentage ownership thresholds
contained in the Rights Agreement, shares issued in connection with the capital
investment approved by the Company's shareholders at the 1984 Annual Meeting and
still owned by the original owner, or owned by certain qualified transferees,
are excluded from the amount deemed to be beneficially owned by such persons.
However, if such original owner or qualified transferee becomes a member of a
group with certain other persons, such shares will be included in the amount
attributable to, and will be deemed to be beneficially owned by, such other
persons.
Until a Right is exercised, the holder thereof, as such, will have no rights
as a stockholder of the Company, including, without limitation, the right to
vote or to receive dividends.
The Rights have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group that attempts to acquire Mattel on
terms not approved by Mattel's Board of Directors, except pursuant to an offer
conditioned on a substantial number of Rights being acquired. The Rights should
not interfere with any merger or other business combination approved by the
Mattel Board of Directors since the Rights may be redeemed by Mattel at the
Redemption Price prior to the time that a person or group has acquired
beneficial ownership of 20% or more of the Common Stock.
PREFERRED STOCK
The Mattel Board of Directors has the power, without further vote of
shareholders, to authorize the issuance of up to 3,000,000 shares of Preferred
Stock and 20,000,000 shares of Preference Stock and to fix and determine the
terms, limitations and relative rights and preferences of any shares of
Preferred Stock or Preference Stock that it causes to be issued. This power
includes the authority to establish voting, dividend, redemption, conversion,
liquidation and other rights of any such shares. No shares of Preference Stock
are now outstanding.
SERIES B VOTING CONVERTIBLE EXCHANGEABLE PREFERRED STOCK
Mattel is authorized to and has issued 53,631 shares of Series B Preferred
Stock, all of which are owned by the Selling Stockholders.
The Series B Preferred Stock has an annual dividend yield of 6%, payable in
cash. The Series B Preferred Stock has a liquidation value of $1,050 per share
and will be convertible, at the option of the holder, into shares of Common
Stock at a conversion price per share of approximately $20.46 subject to certain
adjustments set forth in the Certificate of Designations for the Series B
Preferred Stock. Commencing in April 1999, the shares of Series B Preferred
Stock will be convertible into Common Stock for designated periods at the then
market price, but not less than a price per share of approximately $10.23.
Holders of Series B Preferred Stock are entitled to vote (on an as-converted
basis) with the holders of Common Stock and Series C Preferred Stock as a single
class on all matters on which the holders of Common Stock may vote.
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The Company has the option, at any time, to exchange Series B Preferred Stock
for 6% convertible subordinated notes of Mattel. The Company may redeem Series B
Preferred Stock at any time for an amount equal to 105.25% of its liquidation
value if the average closing price (as defined in the Certificate of
Designations relating to the Series B Preferred Stock) of Common Stock exceeds
175% of the then current conversion price of the Series B Preferred Stock. The
175% threshold is reduced to 150% for redemptions after April 15, 1998 and
eliminated for redemptions commencing April 15, 1999. In addition, the
redemption price is reduced over time from 105.25% of the liquidation value to
100% in 2004. On April 15, 2004, the Company is required to redeem all
outstanding shares of Series B Preferred Stock and the redemption price shall be
paid, at the Company's option, in cash or in shares of Common Stock.
Pursuant to the terms of a registration rights agreement among the Company
and the holders of the Series B Preferred Stock, the Company has granted the
holders thereof certain demand and incidental registration rights with respect
to the Series B Preferred Stock, any Common Stock issued upon conversion of such
preferred stock or any notes issued in exchange for such preferred stock.
Because the Selling Stockholders have demanded registration of the Shares
pursuant to such registration rights agreement, the Company has filed a
registration statement of which this Prospectus forms a part. In the event that
the Selling Stockholders do not sell all of the shares of Common Stock issuable
upon conversion of the Series B Preferred Stock hereunder, the Selling
Stockholders will retain demand and incidental registration rights under the
registration rights agreement. The Shares issued upon conversion of the Series
B Preferred Stock will be duly issued, fully paid and nonassessable.
SERIES C MANDATORILY CONVERTIBLE REDEEMABLE PREFERRED STOCK
The Company is authorized to and has issued 772,800 shares of Series C
Preferred Stock.
Dividends
Holders of Series C Preferred Stock are entitled to receive, when and as
dividends on the Series C Preferred Stock are declared by the Board of Directors
out of funds legally available therefor, cash dividends from the issue date,
accruing at the rate per share of 8.25% per annum (or $10.3125 per annum or
$2.5781 per quarter), payable quarterly in arrears on January 1, April 1, July 1
and October 1 of each year, or, if any such date is not a business day, the next
succeeding business day; provided, however that with respect to any dividend
period during which a redemption occurs, the Company may, at its option, declare
accrued dividends to, and pay such dividends on, the date fixed for redemption,
in which case such dividends would be payable in cash to the holders of Series C
Preferred Stock as of the record date for such dividend payment and would not be
included in the calculation of the Call Price (as defined herein) related to the
Series C Preferred Stock as set forth below. Dividends will cease to accrue in
respect of the Series C Preferred Stock on July 1, 2000 (the "Mandatory
Conversion Date") or on the date of their earlier conversion or redemption.
Dividends are payable to holders of record as they appear on the stock
register of the Company 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.
Dividends for any period less than a full quarterly dividend period are computed
on the basis of a 360-day year of twelve 30-day months and the actual number of
days elapsed in any period less than one month.
Dividends accrue whether or not there are funds legally available for the
payment of such dividends and whether or not such dividends are declared.
Accrued but unpaid dividends on Series C Preferred Stock will accumulate as of
the dividend payment date on which they first become payable, but no interest
will accrue on accumulated but unpaid dividends on Series C Preferred Stock.
The Series C Preferred Stock ranks on a parity, both as to payment of
dividends and distribution of assets upon liquidation, with the Series B
Preferred Stock and any future preferred stock issued by Mattel that by its
terms ranks pari passu with the Series C Preferred Stock.
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As long as any 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 Company ranking junior to the Series C Preferred Stock as
to the payment of dividends and the distribution of assets upon liquidation
("Junior Stock") and cash in lieu of fractional shares in connection with any
such dividend) will be paid or declared in cash or otherwise, nor will any other
distribution be made (other than a distribution payable in 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 Series
C Preferred Stock) that do not constitute Junior Stock ("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 Company 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 Company is not in default on any of its obligations to redeem any Parity
Preferred Stock.
In addition, 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 Company 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 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 or redemption 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 Company 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 Company is not in default on any of its obligations to redeem any
Parity Preferred Stock.
Subject to the provisions described above, such dividends or other
distributions (payable in cash, property or Junior Stock) as may be determined
by the Board may be declared and paid on the shares of any Junior Stock from
time to time and Junior Stock may be purchased, redeemed or otherwise acquired
by the Company or any of its subsidiaries from time to time. In the event of
the declaration and payment of any such dividends or other distributions, the
holders of such Junior Stock will be entitled, to the exclusion of holders of
Parity Preferred Stock, to share therein according to their respective
interests.
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 Company 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 Company 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 Company 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 will 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 will 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.
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Mandatory Conversion of the Series C Preferred Stock
On the Mandatory Conversion Date, each outstanding share of Series C
Preferred Stock will automatically convert into (i) 13.5753 shares of Common
Stock (the "Mandatory Conversion Rate"), and (ii) the right to receive cash in
an amount equal to all accrued and unpaid dividends on such Series C Preferred
Stock (other than previously declared dividends payable to a holder of record as
of a prior date) to the Mandatory Conversion Date, whether or not declared, out
of funds legally available for the payment of dividends, subject to (1) the
right of the Company to redeem the Series C Preferred Stock on or after July 1,
1999 (the "First Call Date") and before the Mandatory Conversion Date (as
described below) and (2) the conversion of the Series C Preferred Stock to
Common Stock at the option of the holder at any time before the Mandatory
Conversion Date (as described below). See "--Series C Depositary
Shares/Redemption or Conversion of Series C Depositary Shares." The Mandatory
Conversion Rate is subject to adjustment as described below. Dividends will
cease to accrue on the Mandatory Conversion Date in respect of the Series C
Preferred Stock then outstanding.
Optional Redemption of the Series C Preferred Stock
The shares of Series C Preferred Stock are not redeemable prior to 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 Company has the right to
redeem, in whole or in part, the outstanding Series C Preferred Stock. Upon any
such redemption, the holder of the Series C Preferred Stock shall receive in
exchange for each share of Series C Preferred Stock, unless previously redeemed
or converted, the greater of (i) the number of shares of Common Stock equal to
the quotient of (a) the applicable Call Price (as described below) in effect on
the redemption date, divided by (b) the Current Market Price (as defined herein)
of the Common Stock, determined as of the trading day immediately preceding the
Notice Date (as defined below) and (ii) 10.0159 shares of Common Stock (the
"Optional Rate"). The Optional Rate is subject to adjustment as described
below. Dividends will cease to accrue on the Series C Preferred Stock on the
date fixed for their redemption.
The "Call Price" for each share of Series C Preferred Stock is equal to the
sum of (i)(a) $127.575 (the equivalent of $5.103 per Series C Depositary Share)
on and after the First Call Date, to and including September 30, 1999; (b)
$126.925 (the equivalent of $5.077 per Series C Depositary Share) on and after
October 1, 1999, to and including December 31, 1999; (c) $126.30 (the equivalent
of $5.052 per Series C Depositary Share) on and after January 1, 2000, to and
including March 31, 2000; (d) $125.65 (the equivalent of $5.026 per Series C
Depositary Share) on and after April 1, 2000, to and including May 31, 2000; or
(e) $125.00 (the equivalent of $5.00 per Series C Depositary Share) on and after
June 1, 2000, to and including June 30, 2000; and (ii) 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).
The "Current Market Price" per share of the Common Stock on any date of
determination means the lesser of (i) the average of the closing sale prices of
the Common Stock as reported on the NYSE Composite Tape on the 15 consecutive
trading days ending on and including such date of determination or (ii) the
closing sale price of the Common Stock as reported on the NYSE Composite Tape
for 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 will be
appropriately adjusted to reflect the occurrence of such event. The "Notice
Date" with respect to any notice given by the Company in connection with a
redemption of the Series C Preferred Stock means the date on which first occurs
either the public announcement of such redemption or the commencement of mailing
of such notice to the holders of Series C Preferred Stock.
If fewer than all outstanding shares of Series C Preferred Stock are to be
called for redemption, the Series C Preferred Stock to be called will be
selected by the Company, from outstanding Series C Preferred Stock not
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previously called, by lot or pro rata (as nearly as may be possible) or by any
other method determined by the Board, in its sole discretion, to be equitable.
The Company will provide notice of any redemption of Series C Preferred Stock
to holders of record of shares of Series C Preferred Stock to be called for
redemption not less than 15 nor more than 60 days before the date fixed for
redemption. Accordingly, the earliest Notice Date for any call for redemption
of Series C Preferred Stock will be July 1, 1999. Any such notice will be
provided by mail, sent to the holders of record of Series C Preferred Stock to
be called at each such holder's address as it appears on the stock register of
the Company, first class postage prepaid; provided however, that failure to give
such notice or any defect therein will not affect the validity of the proceeding
for redemption of any Series C Preferred Stock to be redeemed except as to the
holder to whom the Company has failed to give such notice or whose notice was
defective. On and after the redemption date, all rights of the holders of
Series C Preferred Stock called for redemption will terminate except the right
to receive the Call Price (unless the Company defaults on the payment of the
Call Price). A public announcement of any call for redemption will be made by
the Company before, or at the time of the mailing of such notice of redemption.
Each holder of Series C Preferred Stock called for redemption must surrender
the certificates evidencing such shares of Series C Preferred Stock to the
Company at the place designated in the notice of redemption and will thereupon
be entitled to receive certificates for shares of Common Stock equal to the Call
Price, divided by the Current Market Price of the Common Stock and cash for any
fractional share amount.
Conversion at the Option of the Holder
Shares of Series C Preferred Stock are convertible in whole or in part, at
the option of the holder thereof at any time before the Mandatory Conversion
Date, unless previously redeemed, into shares of Common Stock at the Optional
Rate (which, as previously defined, is equal to 10.0159). The Optional Rate is
subject to adjustment as described below. The right to convert shares of Series
C Preferred Stock called for redemption will terminate immediately before the
close of business on any redemption date with respect to such shares.
Conversion of Series C Preferred Stock at the option of the holder may be
effected by delivering certificates evidencing such Series C Preferred Stock
together with written notice of conversion and a proper assignment of such
certificates to the Company or in blank (and, if applicable, cash payment of an
amount equal to the dividend attributable to the current quarterly dividend
period payable on such shares), to the office of the transfer agent for the
Series C Preferred Stock or to any other office or agency maintained by the
Company for that purpose and otherwise in accordance with conversion procedures
established by the Company. Each optional conversion will be deemed to have
been effected immediately before the close of business on the date on which the
foregoing requirements have been satisfied. The conversion will be at the
Optional Rate in effect at such time and on such date.
Holders of Series C Preferred Stock at the close of business on a record date
for any payment of declared dividends will be entitled to receive the dividend
payable on such Series C Preferred Stock on the corresponding dividend payment
date notwithstanding the optional conversion of such Series C Preferred Stock
following such record date and before such dividend payment date. However,
shares of Series C Preferred Stock surrendered for conversion after the close of
business on a record date for any payment of declared dividends and before the
opening of business on the corresponding dividend payment date must be
accompanied by payment in cash of an amount equal to the dividend attributable
to the current quarterly dividend period payable on such date (unless such
shares of Series C Preferred Stock are subject to redemption on a redemption
date between such record date and such dividend payment date). A holder of
shares of Series C Preferred Stock called for redemption on the First Call Date
or any other dividend payment date will receive the dividend on such Series C
Preferred Stock payable on that date and will be able to convert such Series C
Preferred Stock after the record date for such dividend without paying an amount
equal to such dividend to the Company upon conversion. Upon any optional
conversion of shares of Series C Preferred Stock, the Company will make no
payment of or allowance for previously declared dividends or distributions on
the shares of Common Stock issued upon such conversion.
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The Series C Depositary Shares are subject to conversion and redemption upon
the same terms and conditions (including those as to notice to the owners of
Series C Depositary Shares and as to selection of depositary shares to be called
if fewer than all Series C Depositary Shares are to be called) as the Series C
Preferred Stock held by the Depositary, adjusted to reflect the fact that 25
Series C Depositary Shares are the equivalent of one share of Series C Preferred
Stock. See "--Series C Depositary Shares--Redemption or Conversion of Series C
Depositary Shares."
Conversion Adjustments
The Mandatory Conversion Rate and the Optional Rate are each subject to
adjustment as appropriate in certain circumstances, including if the Company (i)
pays a stock dividend or makes a distribution with respect to its Common Stock
in shares of Common Stock; (ii) subdivides or splits its outstanding Common
Stock; (iii) combines its outstanding Common Stock into a smaller number of
shares; (iv) issues any shares of Common Stock by reclassification of its shares
of Common Stock; (v) issues certain rights or warrants to all holders of its
Common Stock; or (vi) pays a dividend or distributes to all holders of its
Common Stock evidences of its indebtedness, cash or other assets (including
capital stock of the Company but excluding (a) any Permitted Cash Dividends (as
defined below) or (b) distributions and dividends referred to in clause (i)
above written). In addition, the Company will be entitled (but will not be
required) to make upward adjustments in the Mandatory Conversion Rate, the
Optional Rate and the Call Price as the Company, in its discretion, determines
to be advisable, in order that any stock dividend, subdivision of shares,
distribution of rights to purchase stock or securities, or distribution of
securities convertible into or exchangeable for stock (or any transaction which
could be treated as any of the foregoing transactions under Section 305 of the
Internal Revenue Code of 1986, as amended) hereafter made by the Company to its
shareholders will not be taxable. "Permitted Cash Dividends" means, with
respect to any consecutive 12-month period, all cash dividends and cash
distributions on the Common Stock (other than cash dividends and cash
distributions for which a prior adjustment to the Mandatory Conversion Rate and
the Optional Rate was previously made) not in excess of, on a per share of
outstanding Common Stock basis, 10% of the average of the closing share price of
the Common Stock as reported on the NYSE Composite Tape over such period. All
adjustments to the Mandatory Conversion Rate, the Optional Rate and the Call
Price will be calculated to the nearest 1/100th of a share of Common Stock. No
adjustment in the Mandatory Conversion Rate or the Optional Rate will be
required unless such adjustment would require an increase or decrease of at
least 1% therein; provided, however, that any adjustments which, by reason of
the foregoing, are not required to be made will be carried forward and taken
into account in any subsequent adjustment. All adjustments will be made
successively.
Whenever the Mandatory Conversion Rate, the Optional Rate and the Call Price
are adjusted as provided in the preceding paragraph, the Company will file with
the transfer agent for the Series C Preferred Stock a certificate with respect
to such adjustment, make a prompt public announcement thereof and mail notice to
holders of the Series C Preferred Stock providing specified information with
respect to such adjustment. At least 10 business days before taking any action
that would result in adjustment to the Mandatory Conversion Rate, the Optional
Rate or the Call Price, the Company will notify each record holder of Mattel
Series C Preferred Stock concerning such proposed action.
Adjustments for Certain Transactions
Unless sooner redeemed or converted, in case of any reclassification of the
Common Stock, any consolidation of the Company with, or merger of the Company
into, any other entity, any merger of any entity into the Company (other than a
merger that does not result in a reclassification, conversion, exchange or
cancellation of the outstanding shares of the Common Stock), any sale or
transfer of all or substantially all of the assets of the Company 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
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into which such 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 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 Company on any redemption 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 that would have been issuable at the Call Price in effect on such
redemption date upon a redemption of such Series C Preferred Stock immediately
before 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 shares
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 Transaction 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 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 Series C Preferred Stock will be
convertible or redeemed after consummation of such Transaction will be subject
to adjustment as described under "Conversion Adjustments" following the date of
consummation of such Transaction.
Fractional Shares
No fractional shares of Common Stock will be issued upon redemption or
conversion of the Series C Preferred Stock. In lieu of any fractional share
otherwise issuable in respect of the aggregate number of shares of Series C
Preferred Stock of any holder that are redeemed or converted, such holder will
be entitled to receive an amount in cash 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 Company, 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
a holder.
Rights Agreement
Shares of Common Stock issued upon conversion of the Series C Preferred Stock
will be entitled to receive Rights in accordance with the terms and conditions
of the Rights Agreement. The method of calculation of the Current Market Price
of the Common Stock does not take into account any separate value of the Rights,
except to the extent any such value may be reflected in the Current Market
Price.
Liquidation Rights
In the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company, and subject to the rights of holders of any other
series of preferred stock, the holders of outstanding Series C Preferred Stock
are entitled to receive an amount equal to $125, plus accrued and unpaid
dividends thereon, out of the assets of the Company available for distribution
to shareholders, before any distribution of assets is made to holders of Common
Stock or any other Junior Stock upon liquidation, dissolution or winding up.
If upon any voluntary or involuntary liquidation, dissolution, or winding up
of the Company, the assets of the Company are insufficient to permit the payment
of the full preferential amounts payable with respect to the Series C Preferred
Stock and all other series of Parity Preferred Stock, the holders of Series C
Preferred Stock and of all other series of Parity Preferred Stock will share
ratably in any distribution of assets of the Company in proportion
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<PAGE>
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 Series C Preferred Stock will not be entitled to any
other participation in any distribution of assets by the Company. A Transaction
will not be deemed to be a voluntary or involuntary liquidation, dissolution or
winding up of the Company.
Voting Rights
The holders of Series C Preferred Stock 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 is entitled to 12.219 votes. The holders of Series C
Preferred Stock, Common Stock and Series B Preferred Stock vote together as one
class on such matters except as otherwise provided by law or by the Certificate
of Incorporation of the Company.
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
Company will be increased by two and the holders of the 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 12.219 votes, to elect the two
additional directors (the "Series C Directors"). Such right shall continue
until all dividends in arrears and dividends in full for the current quarterly
period have been paid or declared and set apart for payment. The term of office
of any director elected by the holders of the 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 the Series C Preferred Stock to elect Series C Directors.
The Company may not, without the approval of the holders of at least 66 2/3%
of the Series C Preferred Stock then outstanding: (i) amend, alter, or repeal
any of the provisions of the Company's Certificate of Incorporation or Bylaws so
as to affect adversely the powers, preferences or rights of the holders of the
Series C Preferred Stock then outstanding or reduce the minimum time for any
required notice to which the holders of the Series C Preferred Stock then
outstanding may be entitled (an amendment of the 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 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
Company; (iii) merge or consolidate with or into any other corporation, unless
each holder of Series C Preferred Stock immediately preceding such merger or
consolidation receives or continues to hold an equivalent number of shares in
the resulting corporation, with substantially the same rights and preferences,
as correspond to the Series C Preferred Stock so held as contemplated above
under "--Adjustments for Certain Transactions," or (iv) voluntarily dissolve,
liquidate or wind up the affairs of the Company.
The Company may not, without the approval of the holders of at least a
majority of the shares of Series C Preferred Stock then outstanding, create, or
increase the authorized number of shares of any other class or classes of Parity
Preferred Stock, other than the Series B Preferred Stock, or create any stock or
other security convertible into or exchangeable for or evidencing the right to
purchase any Parity Preferred Stock, or increase the authorized number of shares
of any such other class or amount of such other stock or security.
Notwithstanding the provisions summarized in the preceding two paragraphs, no
such approval described therein of the holders of the Series C Preferred Stock
will 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 is to take effect, as the case may
be, provision is made for the redemption of all Series C Preferred Stock at the
time outstanding in accordance with the Certificate of Designations.
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Transfer Agent and Registrar
First City Transfer Company (or a successor thereto selected by the Company)
acts as transfer agent and registrar for, and paying agent for the payment of
dividends on, the Series C Preferred Stock.
Miscellaneous
The Series C Preferred Stock is fully paid and nonassessable. Holders of
Series C Preferred Stock have no preemptive rights. The Company at all times
shall reserve and keep available out of its authorized and unissued Common
Stock, solely for issuance upon the conversion or redemption of Series C
Preferred Stock, such number of shares of Common Stock as will from time to time
be issuable upon the conversion or redemption of all the Series C Preferred
Stock then outstanding. The Series C Preferred Stock redeemed for, or converted
into Common Stock or otherwise reacquired by the Company will resume the status
of authorized and unissued shares of Preferred Stock, undesignated as to series,
and will be available for subsequent issuance.
MATTEL SERIES C DEPOSITARY SHARES
General
Each Series C Depositary Share will represent one twenty-fifth of a share of
Mattel Series C Preferred Stock to be deposited under the Deposit Agreement,
dated as of June 24, 1996 (as amended, the "Deposit Agreement"), among the
Company (as successor to Tyco), First National Bank of Boston, as successor to
Midlantic Bank, N.A., as Depositary (the "Depositary"), and all holders from
time to time of depositary receipts issued thereunder (the "Depositary
Receipts"). Subject to the terms of the Deposit Agreement, each owner of a
Series C Depositary Share will be entitled to all the rights and preferences of
the Series C Preferred Stock represented thereby (including dividend, voting,
redemption, conversion and liquidation rights) and subject, proportionately, to
all of the limitations of the Series C Preferred Stock represented thereby,
contained in the Certificate of Designations summarized under "--Series C
Mandatorily Convertible Redeemable Preferred Stock."
The Series C Depositary Shares are evidenced by Depositary Receipts
previously issued in respect of Tyco Series C Depositary Shares. The Company
has applied to the Depository Trust Company for continued acceptance of the
Depositary Receipts for its book-entry settlement system.
Dividends and Other Distributions
The Depositary distribute all cash distributions and other distributions
received in respect of the Series C Preferred Stock to the record holders of
Series C Depositary Shares in proportion to the number of such Series C
Depositary Shares owned by such holders.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Series C Depositary
Shares entitled thereto, unless the Depositary determines that it is not
feasible to make such distribution, in which case the Depositary may, with the
approval of the Company, sell such property and distribute the net proceeds from
such sale to such holders.
Record Date
Whenever (i) any cash dividend or other cash distribution becomes payable,
any distribution of property other than cash is made, or any rights, preferences
or privileges are at any time offered with respect to the Series C Preferred
Stock, or (ii) the Depositary receives notice of any meeting at which holders of
Series C Preferred Stock
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<PAGE>
are entitled to vote or of which holders of Series C Preferred Stock are
entitled to notice or any solicitation of consents in respect of the Series C
Preferred Stock, or any call or conversion of any Series C Preferred Stock, or
if at any time the Depositary and the Company otherwise deem it appropriate, the
Depositary will in each such instance fix a record date (which shall be the same
date as the record date for the Series C Preferred Stock) for the determination
of the holders of Depositary Receipts who are entitled to (a) receive such
dividend, distribution, rights, preferences or privileges, net proceeds from the
sale of such property, or, (b) receive notice of, and give instructions for the
exercise of voting or consent rights at, any such meeting or (c) receive notice
of any such call or conversion, subject to the provisions of the Deposit
Agreement.
Withdrawal of Series C Preferred Stock
Upon surrender of the Depositary Receipts at the corporate trust office of
the Depositary (unless the related Series C Depositary Shares have been
previously called for redemption), the holder of the Series C Depositary Shares
evidenced thereby is entitled to delivery at such office to or upon his order of
the number of whole shares of Series C Preferred Stock and any money or other
property represented by such Series C Depositary Shares. Holders of Series C
Depositary Shares would be entitled to receive whole shares of Series C
Preferred Stock on the basis of one share of Series C Preferred Stock for each
25 Series C Depositary Shares, but holders of such whole shares of Series C
Preferred Stock will not thereafter be entitled to receive Series C Depositary
Shares in exchange therefor. If the Depositary Receipts delivered by the holder
evidence a number of Series C Depositary Shares in excess of the number of
Series C Depositary Shares representing the number of whole shares of Series C
Preferred Stock to be withdrawn, the Depositary will deliver to such holder at
the same time a new Depositary Receipt evidencing such excess number of Series C
Depositary Shares.
Redemption or Conversion of Series C Depositary Shares
As described under "--Series C Mandatorily Convertible Redeemable Preferred
Stock--Mandatory Conversion of the Series C Preferred Stock," "--Optional
Redemption of the Series C Preferred Stock" and "--Conversion at the Option of
the Holder," the Series C Preferred Stock is subject to automatic conversion
into shares of the Common Stock on the Mandatory Conversion Date, the Company's
right to redeem the Series C Preferred Stock for Common Stock at any time on or
after the First Call Date and before the Mandatory Conversion Date and the
holder's right to convert the Series C Preferred Stock into Common Stock at its
option. The Series C Depositary Shares are subject to redemption or conversion
upon the same terms and conditions (including as to notice to the owners of
Series C Depositary Shares and as to selection of Series C Depositary Shares to
be called if fewer than all of the outstanding Series C Depositary Shares are to
be called) as the Series C Preferred Stock held by the Depositary using the
Common Stock received by the Depositary, except that the number of shares of
Common Stock received upon conversion of each Series C Depositary Share will be
equal to one twenty-fifth of the number of shares of Common Stock received upon
conversion of each share of the Series C Preferred Stock. To the extent that
Series C Depositary Shares are converted into shares of Common Stock and all
such shares of Common Stock cannot be distributed to the record holders of
Depositary Receipts without creating fractional interests in such shares, the
Company will cause the Depositary to distribute cash to holders in lieu of
fractional shares as provided under "--Series C Mandatorily Convertible
Redeemable Preferred Stock--Fractional Shares." The amount distributed in the
foregoing case will be reduced by any amount required to be withheld by the
Company or the Depositary on account of taxes or otherwise required pursuant to
a law, regulation or court process.
Voting of Series C Preferred Stock
Upon receipt of notice of any meeting at which holders of Series C Preferred
Stock are entitled to vote, the Depositary will mail the information contained
in such notice of meeting to the record holders of the Series C Depositary
Shares relating to Series C Preferred Stock. Each record holder of such Series
C Depositary Shares on the record date (which will be the same date as the
record date of the Series C Preferred Stock) will be entitled to
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<PAGE>
instruct the Depositary as to the exercise of the voting rights pertaining to
the amount of shares of Series C Preferred Stock represented by such holder's
Series C Depositary Shares. The Depositary will use its best efforts, insofar
as practicable, to vote the amount of shares of Series C Preferred Stock
represented by such Series C Depositary Shares in accordance with such
instructions and the Company will agree to take all reasonable action which may
be deemed necessary by the Depositary in order to enable the Depositary to do
so. The Depositary will abstain from voting Series C Preferred Stock to the
extent it does not receive specific instructions from the holders of Series C
Depositary Shares representing Series C Preferred Stock.
Each Series C Depositary Share shall entitle the holder to instruct the
Depositary to cast one twenty-fifth of a share of Series C Preferred Stock share
vote on each matter submitted to a vote of the stockholders of the Company. See
"--Series C Mandatorily Convertible Redeemable Preferred Stock-Voting Rights."
Amendment and Termination of the Deposit Agreement
The form of Depositary Receipt evidencing the Series C Depositary Shares and
any provision of the Deposit Agreement may at any time be amended by agreement
between the Company and the Depositary. However, any amendment which materially
and adversely alters the rights of the holders of Series C Depositary Shares
(or, which relates to or affects rights to receive dividends or distributions,
or voting or redemption rights) will not be effective unless such amendment has
been approved by the holders of at least two-thirds of the Series C Depositary
Shares then outstanding. In no event may any amendment impair the right of any
holder of Depositary Receipts, subject to the conditions specified in the
Deposit Agreement, upon such surrender of the Depositary Receipts evidencing
such Series C Depositary Shares, to receive shares of Series C Preferred Stock
or upon conversion of the Series C Preferred Stock represented by the Depositary
Receipts, to receive shares of Common Stock, and in each case any money or other
property represented thereby, except in order to comply with mandatory
provisions of applicable law.
The Deposit Agreement may be terminated by the Company or the Depositary only
if (i) all outstanding Series C Depositary Shares have been redeemed or
converted, (ii) there has been a final distribution in respect of the Series C
Preferred Stock in connection with any liquidation, dissolution or winding up of
the Company and such distribution has been distributed to the holders of
Depositary Receipts, or (iii) upon consent of holders of Depositary Receipts
representing not less than two-thirds of the Series C Depositary Shares then
outstanding.
Whenever the Deposit Agreement is to be terminated pursuant to clause (iii)
of the preceding paragraph the Depositary will mail notice of such termination
to the record holders of all Depositary Receipts then outstanding at least 30
days prior to the date fixed in such notice for such termination. The Depositary
may likewise terminate the Deposit Agreement if at any time 90 days shall have
expired after the Depositary shall have delivered to the Company a written
notice of its election to resign and a successor depositary shall not have been
appointed and accepted its appointment. If any Depositary Receipts remain
outstanding after the date of termination, the Depositary thereafter will
discontinue the transfer of Depositary Receipts, will suspend the distribution
of dividends to the holders thereof, and will not give any further notices
(other than notices of such termination) or perform any further acts under the
Deposit Agreement except as provided below and except that the Depositary will
continue to (i) collect dividends on the Series C Preferred Stock and any other
distributions with respect thereto and (ii) deliver the Series C Preferred Stock
together with such dividends and distributions and the net proceeds of any sales
of rights, preferences, privileges or other property, without liability for
interest thereon, in exchange for Depositary Receipts surrendered. At any time
after the expiration of three years from the date of termination, the Depositary
may sell the Series C Preferred Stock then held by it at public or private
sales, at such place or places and upon such terms as it deems proper and may
thereafter hold the net proceeds of any such sale, together with any money and
other property then held by it, without liability or interest thereon, for the
pro rata benefit of the holders of Depositary Receipts which have not been
surrendered. The Company does not intend to terminate the Deposit Agreement or
to permit the resignation of the Depositary without appointing a successor
depositary. In the event the Deposit Agreement is terminated, the Company will
use all reasonable efforts to have the Series C Preferred Stock listed on the
NYSE.
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Charges of Depositary
The Company pays all transfer and other governmental charges arising solely
from the existence of the depositary arrangements. The Company will pay charges
of the Depositary in connection with any redemption of Series C Preferred Stock.
Holders of Depositary Receipts will pay transfer and other taxes and
governmental charges and such other charges as are expressly provided in the
Deposit Agreement to be for their accounts. The Depositary may refuse to effect
any transfer of a Depositary Receipt or any withdrawal of Series C Preferred
Stock evidenced thereby until all such taxes and charges with respect to such
Depositary Receipt or such Series C Preferred Stock are paid by the holder
thereof.
Miscellaneous
The Depositary will forward to holders of Series C Preferred Stock all
reports and communications from the Company which are delivered to the
Depositary and which the Company is required to furnish to the holders of Series
C Preferred Stock.
Neither the Depositary nor the Company will be liable if it is prevented or
delayed by law or any circumstances beyond its control in performing its
obligations under the Deposit Agreement. The obligations of the Company and the
Depositary under the Deposit Agreement will be limited to performance in good
faith of their duties thereunder and the Company and the Depositary will not be
obligated to prosecute or defend any legal proceeding in respect of any Series C
Depositary Shares or Series C Preferred Stock unless satisfactory indemnity is
furnished. They may rely on written advice of counsel or accountants, or
information provided by persons presenting Series C Preferred Stock for deposit,
holders of Series C Depositary Shares or other persons believed to be competent
and on documents believed to be genuine.
Resignation and Removal of Depositary
The Depositary may resign at any time by delivering to the Company notice of
its election to do so, and the Company may at any time remove the Depositary.
Any such resignation or removal of the Depositary will take effect upon the
appointment of a successor Depositary, which successor Depositary must be
appointed within 90 days after delivery of the notice of resignation or removal
and must be a bank or trust company having its principal office in the United
States and having a combined capital surplus of at least $50 million.
PLAN OF DISTRIBUTION
The Shares are being registered to permit sales of the Shares by the Selling
Stockholders from time to time for one year following the effective date of the
Registration Statement of which this Prospectus is a part, or until such time as
all Shares are sold or disposed of. The Company has agreed, among other things,
to bear certain expenses in connection with the registration and sale of the
Shares, including without limitation all registration and filing fees, fees and
expenses of compliance with securities or blue sky laws, and fees and
disbursements of counsel for the Company, of all independent certified public
accountants and of other Persons retained by the Company. The Selling
Stockholders shall pay the fees and disbursements of their counsel, of their
accountants and other advisors, and any underwriting discounts, and commissions
and transfer taxes in respect of the Shares under state securities or blue sky
laws.
The Shares may be sold from time to time to purchasers directly by any or all
of the Selling Stockholders. Alternatively, the Selling Stockholders may from
time to time offer the Shares to or through underwriters, brokers, dealers or
agents, including through Salomon Brothers Inc, one of the Selling Stockholders,
or any of its affiliates, who may receive compensation in the form of
underwriting discounts, concessions or commissions from the Selling
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Stockholders or the purchasers of such securities for whom they may act as
agents. In addition, Salomon Brothers Inc expects to offer and sell Common
Stock in the course of its business as a broker-dealer and may act as principal
or agent in such transactions. The Selling Stockholders and any underwriters,
brokers, dealers or agents that participate in the distribution of the Shares
may be deemed to be "underwriters" within the meaning of the Securities Act and
any profit on the sale of such securities and any discounts, commissions,
concessions or other compensation received by any such underwriter, broker,
dealer or agent may be deemed to be underwriting discounts and commissions under
the Securities Act. Underwriters, brokers, dealers and agents also may be
customers of, engage in transactions with, or perform other services for Mattel
and its affiliates in the ordinary course of business.
Any distribution hereunder of the Shares by the Selling Stockholders may be
effected from time to time in one or more of the following transactions: (a) on
the NYSE, the PSE, or through broker-dealers acting as principal or agent, in
transactions (which may involve crosses or block transactions), in special
offerings, or in the over-the-counter market, or otherwise, at market prices
obtainable at the time of sale, at prices related to such prevailing market
prices, at negotiated prices or at fixed prices, (b) to underwriters who will
acquire shares of Common Stock for their own account and resell such shares in
one or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale (any public
offering price and any discount or concessions allowed or reallowed or paid to
dealers may be changed from time to time), (c) directly or through brokers or
agents in private sales at negotiated prices (including without limitation,
pursuant to Rule 144 under the Securities Act), (d) by distributions or
dispositions to shareholders or partners or other persons affiliated or
associated with one or more of the Selling Stockholders or with Mattel or one of
its affiliates, (e) to lenders pledged as collateral to secure loans, credit or
other financing arrangements and any subsequent foreclosure, if any, thereunder,
(f) through the writing of options or other derivative instruments (whether
listed on an exchange or otherwise) and pursuant to exercise, conversion,
exchange, distribution on or similar delivery in respect of a derivative
security or instrument relating to some or all of such Common Stock, (g)
pursuant to a stock lending or repurchase or reverse repurchase transaction, or
(h) by any other legally available means. Also, offers to purchase the Common
Stock may be solicited by agents designated by the Selling Stockholders from
time to time. The Registration Statement and this Prospectus shall cover any
such sale and resale. Any of such transactions may be effected at market prices
prevailing at the time of sale, at prices prevailing at the time of sale, at
prices related to such prevailing market prices, at negotiated prices or at
fixed prices. To the extent required, the specific amount of Common Stock to be
sold, the purchase price and public offering price, the names of any resale
agent, dealer or underwriter, and the terms and amount of any applicable
commission or discount with respect to a particular offer will be set forth in a
Prospectus Supplement and/or post-effective amendment to the Registration
Statement of which this Prospectus constitutes a part.
In order to comply with the securities laws of certain states, if applicable,
the Common Stock will be sold hereunder in such jurisdictions only through
registered or licensed brokers or dealers. In addition, in certain states the
Common Stock may not be sold hereunder unless the Common Stock has been
registered or qualified for sale in such state or an exemption from registration
or qualification is available and complied with.
The Company has been advised that, as of the date hereof, the Selling
Stockholders have made no arrangement with any broker for the sale of their
shares of Common Stock.
The Selling Stockholders will be indemnified by the Company, to the extent
permitted by law, against certain civil liabilities, including certain
liabilities under the Securities Act, or will be entitled to contribution in
connection therewith, subject to certain limitations. The Company, at its
request, will be indemnified by the Selling Stockholders, to the extent
permitted by law, against certain civil liabilities, including certain
liabilities under the Securities Act, or will be entitled to contribution in
connection therewith, subject to certain limitations.
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TRADEMARK MATTERS
The trademarks Barbie, Fisher-Price, Hot Wheels, Matchbox, Tyco, Tyco Radio
Control and Tyco Electric Racing, are all United States registered trademarks
owned by Mattel or its subsidiaries. The trademark Cabbage Patch Kids is owned
by Original Appalachian Artworks, Inc. and used under license by Mattel. The
trademark Disney is owned by The Walt Disney Company, and used under license by
Mattel. The trademark Sesame Street is owned by Children's Television Workshop,
Inc. and used under license by Mattel, as successor to Tyco.
LEGAL OPINION
Certain legal matters with respect to the legality of the Shares offered
hereby has been passed upon for the Company by Leland P. Smith, Assistant
General Counsel of the Company.
EXPERTS
The historical financial statements of the Company as of December 31, 1996
and 1995 and for each of the three years in the period ended December 31, 1996
incorporated by reference in this Prospectus to the Company's Annual Report on
Form 10-K and the audited financial statements, restated to give effect to the
merger with Tyco accounted for as a pooling of interests, for the aforementioned
periods incorporated by reference in this Prospectus to the Company's Current
Report on Form 8-K dated July 30, 1997 have been so incorporated in reliance on
the reports of Price Waterhouse LLP, independent accountants, given on the
authority of said firm as experts in auditing and accounting and, with respect
to the historical financial statements of Tyco for the aforementioned periods,
in reliance on the report of Deloitte & Touche LLP, independent auditors, given
upon their authority as experts in accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<CAPTION>
<S> <C>
Registration Fee............... $ 27,732
Blue Sky fees and expenses..... 0*
Accounting fees and expenses... 5,000*
Legal fees and expenses........ 10,000*
Transfer Agent Fees............ 0*
Miscellaneous.................. 1,000*
Total.......................... 43,732
------
</TABLE>
All such expenses will be borne by the Company.
____________________
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Mattel, Inc. (the "Company" or the "Registrant") has adopted provisions in
its Restated Certificate of Incorporation (the "Certificate") which require the
Company to indemnify any and all persons whom it has the power to indemnify
pursuant to the Delaware General Corporation Law (the "DGCL") against any and
all expenses, judgments, fines, amounts paid in settlement, and any other
liabilities to the fullest extent permitted by the DGCL.
The Certificate also empowers the Registrant by action of its Board of
Directors to purchase and maintain insurance, at its expense, to protect itself
and such persons against any such expense, judgment, fine, amount paid in
settlement or other liability, whether or not the Registrant would have the
power to indemnify any such individual under the DGCL.
In addition, the Registrant's Bylaws require that each person who was or is
made a party or is threatened to be made a party to or is involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he or she, or a person of whom he or
she is the legal representative, is or was a director, officer, employee or
agent of the Registrant or is or was serving at the request of the Registrant, a
director, officer, employee or agent of the Registrant as a director, officer,
employee or agent of another corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to employee benefit
plans, whether the basis of such proceeding is alleged action in an official
capacity as a director, officer, employee or agent, or in any other capacity
while serving as a director, officer, employee or agent, shall be indemnified
and held harmless by the Registrant to the fullest extent authorized by the
DGCL, as the same exists or may hereafter be amended (but, in the case of any
such amendment, only to the extent that such amendment permits the Registrant to
provide broader indemnification rights than said law permitted the Registrant to
provide prior to such amendment) against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid or to be paid in settlement) reasonably incurred or suffered by
such person in connection therewith and such indemnification shall continue as
to a person who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of his or her heirs, executors and administrators;
provided, however, that except for claims by such persons for non-payment of
entitled indemnification claims against the Registrant, the Registrant shall
indemnify such person seeking indemnification in connection with a proceeding
initiated by such person only if such proceeding was authorized by the
Registrant's Board of Directors. The Bylaws specify that the right to
indemnification so provided is a contract right, set forth certain procedural
and evidentiary standards applicable to the enforcement of a claim under the
Bylaws, entitle the person to be indemnified to be reimbursed for the expenses
of prosecuting any such claim against the Registrant and entitle them to have
all
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<PAGE>
expenses incurred in advance of the final disposition of a proceeding paid by
the Registrant. Such provisions, however, are intended to be in furtherance and
not in limitation of the general right to indemnification provided in the
Bylaws.
The Company has entered into indemnity agreements (the "Indemnity
Agreements") with each director of the Company, including directors who are also
officers and employees of the Company, and certain senior officers of the
Company. The Indemnity Agreements provide that the Company will pay any costs
which an indemnitee actually and reasonably incurs because of claims made
against him or her by reason of the fact that he or she is or was a director or
officer of the Company. The payments to be made under the Indemnity Agreements
include, but are not limited to, expenses of investigation, judicial or
administrative proceedings or appeals, damages, judgments, fines, amounts paid
in settlement, and attorneys' fees and disbursements, except the Company is not
obligated to make any payment under the Indemnity Agreements which the Company
is prohibited by law from paying as indemnity, or where (a) indemnification is
provided to an indemnitee under an insurance policy, except for amounts in
excess of insurance coverage, (b) the claim is one for which an indemnitee is
otherwise indemnified by the Company, (c) final determination is rendered in a
claim based upon the indemnitee obtaining a personal profit or advantage to
which he or she is not legally entitled, (d) final determination is rendered on
a claim for an accounting of profits made in connection with a violation of
Section 16(b) of the Securities Exchange Act of 1934 (the "Exchange Act"), or
similar state or common law provisions, (e) the indemnitee was adjudged to be
deliberately dishonest, or (f) (with respect to a director) liability arises out
of a breach of certain of his or her fiduciary duties.
The directors and officers of the Company and its subsidiaries are insured
under certain insurance policies against claims made during the period of the
policies against liabilities arising out of claims for certain acts in their
capacities as directors and officers of the Company and its subsidiaries.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit
Number Description
----- -----------
<C> <S>
4.1 Restated Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.0
to the Company's Annual Report on Form 10-K for the year ended December 31, 1993).
4.2 Certificate of Amendment of Restated Certificate of Incorporation (incorporated by reference
to Exhibit B to the Company's Proxy Statement dated March 23, 1996).
4.3 By-laws of the Company, as amended to date.+
4.4 Rights Agreement, dated as of February 7, 1992, between the Company and The First National
Bank of Boston, as Rights Agent (incorporated by reference to Exhibit 1 to the Company's
Registration Statement on Form 8-A, dated February 12, 1992).
4.5 Form of Common Stock Certificate (incorporated by reference to the Company's Current
Report on Form 8-K filed on July 22, 1996).
4.6 Certificate of Designation of Series B Preferred Stock dated March 26, 1997 (incorporated by reference to
the Company's Registration Statement on Form S-3 filed with the Securities and Exchange Commission on August 21, 1997).
4.7 Certificate of Designation of Series C Preferred Stock dated March 26, 1997 (incorporated by reference to the
Company's Registration Statement on Form S-3 filed with the Securities and Exchange Commission on August 21, 1997).
4.8 Deposit Agreement dated June 24, 1996 among Tyco, Midlantic Bank, N.A., as Depositary,
and all holders from time to time of depositary receipts issued thereunder (incorporated by
reference to Exhibit 4.2 to Tyco Toys, Inc.'s Registration Statement on Form S-3, dated June
20, 1996).
4.9 Amendment to Deposit Agreement dated as of March 27, 1997 between the Company, as
successor to Tyco and The First National Bank of Boston.+
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description
----- -----------
<C> <S>
4.10 Registration Rights Agreement dated April 15, 1994 among Tyco, Corporate Partners, L.P.,
Corporate Offshore Partners, L.P., the State Board of Administration of Florida and Corporate
Advisors, L.P. (incorporated by reference to Tyco's Annual Report on Form 10-K for the year
ended December 31, 1994).
4.11 Amendment to Registration Rights Agreement dated as of March 27, 1997 among the
Company, Corporate Partners, L.P., Corporate Offshore Partners, L.P. and the State Board of
Administration of Florida.+
5 Opinion of Leland P. Smith.+
23.1 Consent of Price Waterhouse LLP.+
23.2 Consent of Deloitte and Touche LLP.+
23.3 Consent of Leland P. Smith (included in Exhibit 5).
24 Power of Attorney with respect to the Company (see page II-4).+
- -------------------------
</TABLE>
+ Included in this filing.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement.
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Securities and Exchange Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to
II-3
<PAGE>
Section 15(d) of the Exchange Act) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
---------
(5) To deliver or cause to be delivered with the prospectus, to each person
to whom the prospectus is sent or given, the latest annual report to security
holders that is incorporated by reference in the prospectus and furnished
pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the
Exchange Act; and to deliver or cause to be delivered to each person to whom a
prospectus is sent or given, the latest quarterly report that is specifically
incorporated by reference in the prospectus to provide such interim financial
information.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer, or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of El Segundo, State of California, on the 26th day of
September, 1997.
MATTEL, INC.
By: /s/ Harry Pearce
-------------------------------------
Harry Pearce, Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below on this registration statement hereby constitutes and appoints Jill E.
Barad, Ned Mansour, Robert Normile, Leland P. Smith and John L. Vogelstein,
their true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for them and in their name, place and stead, in
any and all capacities (unless revoked in writing) to sign any and all
amendments to this registration statement to which this power of attorney is
attached, including any post-effective amendments as well as any related
registration statement (or amendment thereto) filed in reliance upon Rule 462(b)
under the Securities Act of 1933, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Commission,
granting to such attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite or necessary
to be done in connection therewith, as fully to all intents and purposes as they
might and could do in person hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their substitute or substitutes,
may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ John W. Amerman Chairman of the Board September 26, 1997
- ------------------------------
John W. Amerman
/s/ Jill E. Barad Director, President and September 26, 1997
- ------------------------------ Chief Executive Officer
Jill E. Barad
/s/ Harry Pearce Chief Financial Officer September 26, 1997
- ------------------------------ (Principal Financial Officer)
Harry Pearce
/s/ Kevin M. Farr Senior Vice President and Controller September 26, 1997
- ------------------------------ (Chief Accounting Officer)
Kevin M. Farr
</TABLE>
II-5
<PAGE>
<TABLE>
<S> <C> <C>
/s/ Dr. Harold Brown Director September 26, 1997
- ------------------------------
Dr. Harold Brown
/s/ Tully M. Friedman Director September 26, 1997
- ------------------------------
Tully M. Friedman
/s/ Joseph C. Gandolfo Director and President, September 26, 1997
- ------------------------------ Worldwide Manufacturing Operations
Joseph C. Gandolfo
/s/ Ronald M. Loeb Director September 26, 1997
- ------------------------------
Ronald M. Loeb
/s/ Ned Mansour Director and President, September 26, 1997
- ------------------------------ Corporate Operations
Ned Mansour
/s/ Edward N. Ney Director September 26, 1997
- ------------------------------
Edward N. Ney
/s/ William D. Rollnick Director September 26, 1997
- ------------------------------
William D. Rollnick
/s/ Christopher A. Sinclair Director September 26, 1997
- ------------------------------
Christopher A. Sinclair
/s/ Bruce L. Stein Director and President, September 26, 1997
- ------------------------------ Mattel Worldwide
Bruce L. Stein
/s/John L. Vogelstein Director September 26, 1997
- ------------------------------
John L. Vogelstein
</TABLE>
II-6
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
----- -----------
<C> <S>
4.1 Restated Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.0
to the Company's Annual Report on Form 10-K for the year ended December 31, 1993).
4.2 Certificate of Amendment of Restated Certificate of Incorporation (incorporated by reference
to Exhibit B to the Company's Proxy Statement dated March 23, 1996).
4.3 By-laws of the Company, as amended to date.+
4.4 Rights Agreement, dated as of February 7, 1992, between the Company and The First National
Bank of Boston, as Rights Agent (incorporated by reference to Exhibit 1 to the Company's
Registration Statement on Form 8-A, dated February 12, 1992).
4.5 Form of Common Stock Certificate (incorporated by reference to the Company's Current
Report on Form 8-K filed on July 22, 1996).
4.6 Certificate of Designation of Series B Preferred Stock dated March 26, 1997 (incorporated
by reference to the Company's Registration Statement on Form S-3 filed with the Securities and
Exchange Commission on August 21, 1997).
4.7 Certificate of Designation of Series C Preferred Stock dated March 26, 1997 (incorporated
by reference to the Company's Registration Statement on Form S-3 filed with the Securities and
Exchange Commission on August 21, 1997).
4.8 Deposit Agreement dated June 24, 1996 among Tyco, Midlantic Bank, N.A., as Depositary,
and all holders from time to time of depositary receipts issued thereunder (incorporated by
reference to Exhibit 4.2 to Tyco Toys, Inc.'s Registration Statement on Form S-3, dated June
20, 1996).
4.9 Amendment to Deposit Agreement dated as of March 27, 1997 between the Company, as
successor to Tyco and The First National Bank of Boston.+
4.10 Registration Rights Agreement dated April 15, 1994 among Tyco, Corporate Partners, L.P.,
Corporate Offshore Partners, L.P., the State Board of Administration of Florida and Corporate
Advisors, L.P. (incorporated by reference to Tyco's Annual Report on Form 10-K for the year
ended December 31, 1994).
4.11 Amendment to Registration Rights Agreement dated as of March 27, 1997 among the
Company, Corporate Partners, L.P., Corporate Offshore Partners, L.P. and the State Board of
Administration of Florida.+
5 Opinion of Leland P. Smith.+
23.1 Consent of Price Waterhouse LLP.+
23.2 Consent of Deloitte and Touche LLP.+
23.3 Consent of Leland P. Smith (included in Exhibit 5).
24 Power of Attorney with respect to the Company (see page II-4).+
- -------------------------
</TABLE>
+ Included in this filing.
II-7
<PAGE>
EXHIBIT 4.3
Composite as of 8/21/97
MATTEL, INC.
BYLAWS
ARTICLE I - STOCKHOLDERS
Section 1. Annual Meeting.
---------------------------
An annual meeting of the stockholders, for the election of directors
to succeed those whose terms expire and for the transaction of such other
business as may properly come before the meeting, shall be held at such place,
on such date, and at such time as the Board of Directors shall each year fix,
which date shall be within thirteen months subsequent to the later of the date
of incorporation or the last annual meeting of stockholders.
Section 2. Special Meetings.
-----------------------------
Special meetings of the stockholders, for any purpose or purposes
prescribed in the notice of the meeting, may be called by the Board of Directors
or the chief executive officer and shall be held at such place, on such date,
and at such time as they or he shall fix.
Section 3. Notice of Meetings.
-------------------------------
Written notice of the place, date, and time of all meetings of the
stockholders shall be given, not less than ten (10) nor more than sixty (60)
days before the date on which the meeting is to be held to each stockholder
entitled to vote at such meeting, except as otherwise provided herein, in the
Restated Certificate of Incorporation or required by law.
When a meeting is adjourned to another place, date, or time, written
notice need not be given of the adjourned meeting if the place, date, and time
thereof are announced at the meeting at which the adjournment is taken;
provided, however, that if the date of any adjourned meeting is more than thirty
(30) days after the date for which the meeting was originally noticed, or if a
new record date is fixed for the adjourned meeting, written notice of the place,
date, and time of the adjourned meeting shall be given in conformity herewith.
At any adjourned meeting, any business may be transacted which might have been
transacted at the original meeting.
Section 4. Quorum.
-------------------
At any meeting of the stockholders, the holders of a majority of all
of the shares of the stock entitled to vote at the meeting, present in person or
by proxy, shall constitute a quorum for all purposes, unless or except to the
extent that the presence of a larger number may be required by law.
<PAGE>
If a quorum shall fail to attend any meeting, the chairman of the
meeting or the holders of a majority of the shares of the stock entitled to vote
who are present, in person or by proxy, may adjourn the meeting to another
place, date, or time.
If a notice of any adjourned special meeting of stockholders is sent
to all stockholders entitled to vote thereat, stating that it will be held with
those present constituting a quorum, then except as otherwise required by law,
those present at such adjourned meeting shall constitute a quorum, and all
matters shall be determined by a majority of the votes cast at such meeting.
Section 5. Organization.
-------------------------
Such person as the Board of Directors may have designated or, in the
absence of such a person, the highest ranking officer of the corporation who is
present shall call to order any meeting of the stockholders and act as chairman
of the meeting. In the absence of the Secretary of the corporation, the
secretary of the meeting shall be such person as the chairman appoints.
Section 6. Conduct of Business.
--------------------------------
The chairman of any meeting of stockholders shall determine the order
of business and the procedure at the meeting, including such regulation of the
manner of voting and the conduct of discussion as seem to him in order.
Section 7. Proxies and Voting.
-------------------------------
At any meeting of the stockholders, every stockholder entitled to vote
may vote in person or by proxy authorized by an instrument in writing filed in
accordance with the procedure established for the meeting.
Each stockholder shall have one vote for every share of stock entitled
to vote which is registered in his name on the record date for the meeting,
except as otherwise provided herein or required by law. As provided by the
Certificate of Incorporation, at all elections of directors each stockholder who
is entitled to vote shall be entitled to as many votes as shall equal the number
of votes which (except for the provisions as to cumulative voting contained in
the Certificate of Incorporation) he would be entitled to cast for the election
of directors with respect to his shares of stock multiplied by the number of
directors to be elected, and he may cast all of such votes for a single director
or may distribute them among the number to be voted for, or for any two or more
of them as he may see fit.
All voting, except for the election of directors and where otherwise
required by law, may be by a voice vote; provided, however, that upon demand
therefor by a stockholder entitled to vote or his proxy, a stock vote shall be
taken. Every stock vote shall be taken by ballots, each of which shall state
the name of the stockholder or proxy voting and such other information as may be
required under the procedure established for the meeting. Every vote
2
<PAGE>
taken by ballots shall be counted by an inspector or inspectors appointed by the
chairman of the meeting.
All elections shall be determined by a plurality of the votes cast,
and except as otherwise required by law, all other matters shall be determined
by a majority of the votes cast.
Section 8. Stock List.
-----------------------
A complete list of stockholders entitled to vote at any meeting of
stockholders, arranged in alphabetical order for each class of stock and showing
the address of each such stockholder and the number of shares registered in his
name, shall be open to the examination of any such stockholder, for any purpose
germane to the meeting, during ordinary business hours for a period of at least
ten (10) days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or if not so specified, at the place where the meeting is to be held.
The stock list shall also be kept at the place of the meeting during
the whole time thereof and shall be open to the examination of any such
stockholder who is present. This list shall presumptively determine the
identity of the stockholders entitled to vote at the meeting and the number of
shares held by each of them.
Section 9. Business Brought Before the Meeting,
------------------------------------------------
At any annual meeting of the stockholders, only such business shall be
conducted as shall have been brought before the meeting or any adjournment
thereof (i) by or at the direction of the Board of Directors or (ii) by any
stockholder of the corporation who is entitled to vote with respect thereto and
who complies with the notice procedures set forth in this Section 9. For
business to be properly brought before an annual meeting by a stockholder, the
stockholder must have given timely notice thereof in writing to the Secretary of
the corporation. To be timely, a stockholder's notice must be delivered or
mailed to and received at the principal executive offices of the corporation not
less than ninety (90) days nor more than one hundred-twenty (120) days prior to
the meeting and this window period shall not be effected by any adjournment of
the meeting; provided, however, that in the event that less than forty (40) days
notice of the date of the meeting is given to stockholders, notice by the
stockholder to be timely must be received not later than the close of business
on the tenth day following the day on which such public announcement of the
date of such meeting is first made. ("Public announcement" means disclosure in
a press release, national news service or in a document publicly filed by the
corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Securities Exchange Act of 1934, as amended). A
stockholder's notice to the Secretary shall set forth as to each matter such
stockholder proposes to bring before the annual meeting (i) a brief description
of the business desired to be brought before the annual meeting and the reasons
for conducting such business at the annual meeting, (ii) the name and address,
as they appear on the corporation's books, of the stockholder proposing such
business, (iii) the class and number of shares of the corporation's
3
<PAGE>
capital stock that are beneficially owned by such stockholder, (iv) any material
interest of such stockholder in such business, and (v) if the stockholder
intends to solicit proxies in support of such stockholder's proposal, a
representation to that effect; provided, however, that compliance by such
-------- -------
stockholder with the notice provisions and other requirements in this Section 9
shall not create a duty of the corporation to include such stockholder's
business or proposal in the corporation's proxy statement or proxy, and
notwithstanding such compliance the corporation shall retain such discretion as
it has to omit such business or proposal from such proxy statement or proxy or
both. Notwithstanding anything in the Bylaws to the contrary, no business shall
be brought before or conducted at an annual meeting (i) except in accordance
with the provisions of this Section 9 or (ii) if the stockholder solicits
proxies in support of such stockholder's proposal made the representation
required by clause (v) of the preceding sentence. The officer of the corporation
or other person presiding over the annual meeting shall, if the facts so
warrant, determine and declare to the meeting that business was not properly
brought before the meeting or any adjournment thereof in accordance with the
provisions of this Section 9 and, if he or she should so determine, he or she
shall so declare to the meeting and any such business so determined to be not
properly brought before the meeting shall not be transacted.
At any special meeting of the stockholders, only such business shall
be conducted as shall have been brought before the meeting by or at the
direction of the Board of Directors.
Section 10. Nomination for Election to Board.
----------------------------------------------
Only persons who are properly nominated in accordance with the
procedures set forth in these Bylaws shall be eligible for election as
directors. Nominations of persons for election to the Board of Directors of the
corporation may be made at a meeting of stockholders or any adjournment thereof
(i) by or at the direction of the Board of Directors (ii) by any stockholder of
the corporation entitled to vote for the election of directors at the meeting
who complies with the notice procedures set forth in this Section 10. Such
nominations, other than those made by or at the direction of the Board of
Directors, shall be made pursuant to timely and complete notice in writing to
the Secretary of the corporation. To be timely, a stockholder's notice shall be
delivered or mailed to and received at the principal executive offices of the
corporation not less than ninety (90) days nor more than one-hundred-twenty
(120) days prior to the meeting and this window period shall not be effected by
any adjournment of the meeting; provided, however, that in the event that less
than forty (40) days notice of the date of the meeting is given to stockholders,
notice by the stockholder to be timely must be so received not later than the
close of business on the tenth day following the day on which public
announcement of the date of such meeting is first made. ("Public announcement"
is defined in Section 9 herein. Such stockholder's notice shall be complete
provided it sets forth (i) as to each person whom such stockholder proposes to
nominate for election or re-election as a director, (a) the name, age, business
address and residence address of the person, (b) the principal occupation or
employment of the person, (c) the class and number of shares of capital stock of
the corporation which are owned directly or beneficially by the person, (d) a
statement as to the person's citizenship, and (e) such person's written consent
to
4
<PAGE>
serve as a director if elected; (ii) as to the stockholder giving the notice (a)
the name and address, as they appear on the corporation's books, of such
stockholder and (b) the class and number of shares of the corporation's stock
which are owned by such stockholder, and (iii) if the stockholder intends to
solicit proxies in support of such stockholder's nominee(s), a representation to
that effect; provided, however, that compliance by a stockholder with the notice
-------- -------
provisions and other requirements in this Section 10 shall not create a duty of
the corporation to include the stockholder's nominee in the corporation's proxy
statement or proxy if the stockholder's nominee is not nominated by the Board of
Directors, and the corporation shall retain any discretion it has to omit the
nominee from the corporation's proxy statement and proxy. At the request of the
Board of Directors any person nominated by the Board of Directors for election
as a director shall furnish to the Secretary of the corporation that information
required to be set forth in a stockholder's notice of nomination which pertains
to the nominee. No person shall be eligible for election as a director of the
corporation unless nominated in accordance with the provisions of this Section
10. The officer of the corporation or other person presiding at the meeting
shall, if the facts so warrant, determine and declare to the meeting that a
nomination made at the meeting or any adjournment thereof was not made in
accordance with the provisions of this Section 10, with law or rules applicable
to the meeting, or if the stockholder solicits proxies in support of such
stockholder's nominee(s) without such stockholder having made the representation
required by clause (iii) of this Section 10, and if he or she should so
determine, he or she shall so declare to the meeting and the defective
nomination shall be disregarded.
ARTICLE II - BOARD OF DIRECTORS
Section 1. Number and Term of Office.
--------------------------------------
The Board of Directors shall consist of one or more members, the
number thereof to be determined from time to time by resolution of the Board of
Directors. Each director shall hold office until the annual meeting of
stockholders next succeeding his election and until his successor is elected and
qualified, except as otherwise provided herein or required by law.
Whenever the authorized number of directors is increased between
annual meetings of the stockholders, a majority of the directors then in office
shall have the power to elect such new directors for the balance of a term and
until their successors are elected and qualified. Any decrease in the
authorized number of directors shall not become effective until the expiration
of the term of the directors then in office unless, at the time of such
decrease, there shall be vacancies on the board which are being eliminated by
the decrease.
Section 2. Vacancies.
----------------------
If the office of any director becomes vacant by reason of death,
resignation, disqualification, removal or other cause, a majority of the
directors remaining in office,
5
<PAGE>
although less than a quorum, may elect a successor for the unexpired term and
until his successor is elected and qualified.
Section 3. Regular Meetings.
-----------------------------
Regular meetings of the Board of Directors shall be held at such place
or places, on such date or dates, and at such time or times as shall have been
established by the Board of Directors and publicized among all directors. A
notice of each regular meeting shall not be required.
Section 4. Special Meetings.
-----------------------------
Special meetings of the Board of Directors may be called by one-third
of the directors then in office or by the chief executive officer and shall be
held at such place, on such date, and at such time as they or he shall fix.
Notice of the place, date and time of each such special meeting shall be given
each director by whom it is not waived by mailing written notice not less than
three days before the meeting or by telegraphing or sending by facsimile
transmission the same not less than eighteen hours before the meeting. Unless
otherwise indicated in the notice thereof, any and all business may be
transacted at a special meeting.
Section 5. Quorum.
-------------------
At any meeting of the Board of Directors, one-third of the total
number of the whole board, but not less than two, shall constitute a quorum for
all purposes. If a quorum shall fail to attend any meeting, a majority of those
present may adjourn the meeting to another place, date, or time, without further
notice or waiver thereof.
Section 6. Conduct of Business.
--------------------------------
At any meeting of the Board of Directors, business shall be transacted
in such order and manner as the board may from time to time determine, and all
matters shall be determined by the vote of a majority of the directors present,
except as otherwise provided herein or required by law.
Section 7. Powers.
-------------------
The Board of Directors may, except as otherwise required by law,
exercise all such power and do all such acts and things as may be exercised or
done by the corporation, including, without limiting the generality of the
foregoing, the unqualified power:
(1) To declare dividends from time to time in accordance with
law;
(2) To purchase or otherwise acquire any property, rights or
privileges on such terms as it shall determine;
6
<PAGE>
(3) To authorize the creation, making and issuance, in such form
as it may determine, of written obligations of every kind, negotiable
or non-negotiable, secured or unsecured, and to do all things
necessary in connection therewith;
(4) To remove any officer of the corporation with or without
cause, from time to time to devolve the powers and duties of any
officer upon any other person for the time being;
(5) To confer upon any officer of the corporation the power to
appoint, remove and suspend subordinate officers and agents;
(6) To adopt from time to time such bonus or other compensation
plans for directors, officers and agents of the corporation and its
subsidiaries as it may determine;
(7) To adopt from time to time such insurance, retirement, and
other benefit plans for directors, officers and agents of the
corporation and its subsidiaries as it may determine; and
(8) To adopt from time to time regulations, not inconsistent with
these Bylaws, for the management of the corporation's business and
affairs.
Section 8. Compensation of Directors.
--------------------------------------
Directors, as such, may receive, pursuant to resolution of the Board
of Directors, fixed fees and other compensation for their services as directors,
including, without limitation, their services as members of committees of the
directors.
Section 9. Action without Meeting.
-----------------------------------
Any action required or permitted to be taken at any meeting of the
Board of Directors or of any Committee thereof may be taken without a meeting if
all members of the Board or Committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of the
proceedings of the Board or Committee.
ARTICLE III - COMMITTEES
Section 1. Committees of the Board of Directors.
-------------------------------------------------
The Board of Directors, by a vote of a majority of the whole Board,
may from time to time designate committees of the Board, including an
Executive/Finance Committee,
7
<PAGE>
with the powers and duties it thereby confers, to serve at the pleasure of the
Board and shall, for those committees and any others provided for herein, elect
the director or directors to serve as the member or members, designating, if it
desires, other directors as alternate members who may replace any absent or
disqualified member at any meeting of the committee. Committees other than the
Executive/Finance Committee may have only one member. In the absence or
disqualification of any member of any committee and any alternate member in his
place, the member or members of the committee present at the meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may by
unanimous vote appoint another member of the Board of Directors to act at the
meeting in the place of the absent or disqualified member.
Section 2. Executive/Finance Committee.
----------------------------------------
If the Board of Directors shall designate an Executive/Finance
Committee, said Committee shall have the following powers:
During the intervals between meetings of the Board of Directors, that
Committee shall have all of the powers and duties of the Board of Directors,
except with respect to matters delegated to another committee and except as
shall have been otherwise provided by the Board of Directors. All action taken
by the Executive/Finance Committee since the last meeting of the Board of
Directors shall be reported to the Board at its next meeting.
During the intervals between meetings of the Executive/Finance
Committee, the chairman thereof shall have such of the powers and duties of such
Committee as shall have been conferred upon him by the Board of Directors or the
Committee.
Section 3. Conduct of Business.
--------------------------------
Each committee may determine the procedural rules for meeting and
conducting its business and shall act in accordance therewith, except as
otherwise provided herein or required by law. Adequate provision shall be made
for notice to members of all meetings; one-third of the members, but not less
than two, shall constitute a quorum; and all matters shall be determined by a
majority vote of the members present.
Section 4. Emergency Management Committee.
-------------------------------------------
If as a result of a catastrophe or other emergency condition a quorum
of any committee of the Board of Directors having power to act in the premises
cannot readily be convened and a quorum of the Board of Directors cannot readily
be convened, then all the powers and duties of the Board of Directors shall
automatically vest and continue, until a quorum of the Board of Directors can be
convened, in the Emergency Management Committee, which shall consist of all
readily available members of the Board of Directors and two of whose members
shall constitute a quorum. The Emergency Management Committee shall call a
meeting of the Board of Directors as soon as circumstances permit for the
purpose of filling any
8
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vacancies on the Board of Directors and its committees and taking such other
action as may be appropriate.
ARTICLE IV - OFFICERS
Section 1. Generally,
----------------------
The officers shall consist of a Chairman (or any number of Co-
Chairmen) of the Board of Directors, a President, one or more Vice Presidents
(who may at the pleasure of the Board of Directors be designated as Senior Vice
Presidents, Executive Vice Presidents, Vice Presidents in charge of a particular
function such as Vice President-Administration, or merely Vice President), a
Secretary, a Treasurer, a Controller, and such assistants to such officers as
may from time to time be appointed by the Board of Directors.
Officers shall be elected by the Board of Directors, which shall
consider that subject at its first meeting after every annual meeting of
stockholders. Each officer shall hold his office at the pleasure of the Board
of Directors and until his successor is elected and qualified or until his
earlier resignation or removal. The Chairman (or Co-Chairmen) of the Board of
Directors shall be a director. Any number of offices may be held by the same
person.
The Board of Directors may appoint such other officers as the business
of the corporation may require, each of whom shall have such authority and
perform such duties as are provided in these Bylaws or as the Board of Directors
or the Chairman of the Board may from time to time specify.
Section 2. Chairman of the Board of Directors.
-----------------------------------------------
The Chairman of the Board of Directors (or, if there are Co-Chairmen,
that Co-Chairman who is designated by the Board of Directors) shall be the chief
executive officer of the corporation. Subject to the provisions of these Bylaws
and to the direction of the Board of Directors, he shall have the responsibility
for the general management and control of the affairs and business of the
corporation and shall perform all duties and have all powers which are commonly
incident to the office of chief executive or which are delegated to him by the
Board of Directors.
The Chairman (or any Co-Chairmen) of the Board of Directors shall have
power to sign all stock certificates, contracts and other instruments of the
corporation which are authorized. He shall have general supervision and
direction of all of the other officers and agents of the corporation.
Section 3. President.
----------------------
The President shall have such duties and powers as may from time to
time be delegated to him by the Board of Directors or by the Chairman of the
Board of Directors (or if
9
<PAGE>
there are Co-Chairmen of the Board of Directors, the chief executive officer).
In the absence or disability of the Chairman (or Co-Chairmen) of the Board of
Directors, or during the period of a vacancy in that office, he shall act as the
chief executive officer of the corporation and shall have the duties and powers
of the chairman.
Section 4. Vice Presidents.
----------------------------
Each of the Vice Presidents shall have such duties and powers as may
from time to time be delegated to him by the Board of Directors, by the Chairman
(or any Co-Chairman) of the Board of Directors, or by the President. In the
absence or disability of the President, the Vice President designated by:
(a) the Board of Directors, or if no such designation is made, then by
(b) the Chairman (or any Co-Chairman) of the Board of Directors, or if no
such designation is made, then by
(c) the President shall have the duties and powers of the President.
Section 5. The Treasurer.
--------------------------
The Treasurer shall have the custody of all monies and securities of
the corporation and shall keep regular books of account. He shall make such
disbursement of the funds of the corporation as are proper and shall render from
time to time an account of all such transactions and of the financial condition
of the corporation. He shall have such other duties and powers as are commonly
incident to this office or are delegated to him by the Board of Directors, by
the Chairman (or any Co-Chairman) of the Board of Directors, or by the
President.
Section 6. The Secretary.
--------------------------
The Board of Directors shall appoint a Secretary or, at its
discretion, more than one Secretary, each of whom shall have such duties and
other powers as are commonly incident to this office or are delegated to him or
her by the Board of Directors, by the Chairman (or any Co-Chairman) of the Board
of Directors, or by the President. A Secretary shall issue all authorized
notices for, and shall keep minutes of, all meetings of the stockholders and the
Board of Directors. A Secretary shall have charge of the corporate books.
Section 7. Delegation of Authority.
------------------------------------
The Board of Directors may from time to time delegate the powers or
duties of any officer to any other officer or agents, notwithstanding any
provision hereof.
Section 8. Removal.
--------------------
Any officer of the corporation may be removed at any time, with or
without cause, by the Board of Directors.
10
<PAGE>
Section 9. Action with Respect to Securities of Corporation.
-------------------------------------------------------------
Unless otherwise directed by the Board of Directors, the Chairman (or
Co-Chairman) of the Board and the President, and each of them, shall have power
to vote and otherwise act on behalf of the corporation, in person or by proxy,
at any meeting of stockholders of or with respect to any action of stockholders
of any other corporation in which this corporation may hold securities and
otherwise to exercise any and all rights and powers which this corporation may
possess by reason of its ownership of securities in such other corporation.
ARTICLE V - STOCK
Section 1. Certificates of Stock.
----------------------------------
Each stockholder shall be entitled to a certificate signed by, or in
the name of the corporation by, the Chairman of the Board of Directors, or the
President or a Vice President, and by the Secretary or an Assistant Secretary,
or the Treasurer or an Assistant Treasurer, certifying the number of shares
owned by him. Signatures required on such certificates may be manually signed
by the transfer agent, registrar or officer, or such signatures may be
facsimile.
Section 2. Transfer of Stock.
------------------------------
Transfers of stock shall be made only upon the transfer books of the
corporation kept at an office of the corporation or by transfer agents
designated to transfer shares of the stock of the corporation. Except where a
certificate is issued in accordance with Section 4 of ARTICLE V of these Bylaws,
an outstanding certificate for the number of shares involved shall be
surrendered for cancellation before a new certificate is issued therefor.
Section 3. Record Dates.
-------------------------
(a) The Board of Directors may fix a record date, which shall not be
more than sixty (60) nor less than ten (10) days before the date of any meeting
of stockholders, nor more than sixty (60) days prior to the time for the other
action hereinafter described (except as otherwise set forth in paragraph (b) of
this Section), as of which there shall be determined the stockholders who are
entitled: to notice of or to vote at any meeting of stockholders or any
adjournment thereof; to receive payment of any dividend or other distribution or
allotment of any rights; or to exercise any rights with respect to any change,
conversion or exchange of stock or with respect to any other lawful action.
(b) In order that the corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the Board
of Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the
11
<PAGE>
record date is adopted by the Board of Directors, and which date shall not be
more than ten (10) days after the date upon which the resolution fixing the
record date is adopted by the Board of Directors. Any stockholder of record
seeking to have the stockholders authorize or take corporate action by written
consent shall, by written notice to the Secretary, request the Board of
Directors to fix a record date. The Board of Directors shall promptly, but in
all events within ten (10) days after the date on which such a request is
received, adopt a resolution fixing the record date. If no record date has been
fixed by the Board of Directors within ten (10) days of the date on which such a
request is received, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting, when no prior action
by the Board of Directors is required by applicable law, shall be the first date
on which a signed written consent setting forth the action taken or proposed to
be taken is delivered to the corporation by delivery to its registered office in
the State of Delaware, its principal place of business, or any officer or agent
of the corporation having custody of the book in which proceedings of meetings
of stockholders are recorded. Delivery made to the corporation's registered
office shall be by hand or by certified or registered mail, return receipt
requested. If no record date has been fixed by the Board of Directors and prior
action by the Board of Directors is required by law, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting shall be at the close of business on the date on which the
Board of Directors adopts the resolution taking such prior action.
Section 4. Lost, Stolen or Destroyed Certificates.
---------------------------------------------------
In the event of the loss, theft or destruction of any certificate of
stock, another may be issued in its place pursuant to such regulations as the
Board of Directors may establish concerning proof of such loss, theft or
destruction and concerning the giving of a satisfactory bond or bonds of
indemnity.
Section 5. Regulations.
------------------------
The issue, transfer, conversion and registration of certificates of
stock shall be governed by such other regulations as the Board of Directors may
establish.
ARTICLE VI - INDEMNIFICATION
Section 1. Right to Indemnification.
-------------------------------------
Each person who was or is made a party or is threatened to be made a
party to or is involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a "proceeding"), by
reason of the fact that he or she, or person of whom he or she is the legal
representative, is or was a director, officer, employee or agent of the
corporation or is or was serving at the request of the corporation as a
director, officer,
12
<PAGE>
employee or agent of another corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to employee benefit
plans, whether the basis of such proceeding is alleged action in an official
capacity as a director, officer, employee or agent or in any other capacity
while serving as a director, officer, employee or agent, shall be indemnified
and held harmless by the corporation to the fullest extent authorized by the
Delaware General Corporation Law, as the same exists or may hereafter be
amended, (but, in the case of any such amendment, only to the extent that such
amendment permits the corporation to provide broader indemnification rights than
said law permitted the corporation to provide prior to such amendment) against
all expense, liability and loss (including attorneys' fees, judgments, fines,
ERISA excise taxes or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of his or her heirs,
executors and administrators; provided, however, that, except as provided in
-------- -------
Section 2 of this ARTICLE IV, the corporation shall indemnify any such person
seeking indemnification in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors of the corporation. The right to
indemnification conferred in this Section shall be a contract right and shall
include the right to be paid by the corporation the expenses incurred in
defending any such proceeding in advance of its final disposition; provided,
--------
however, that, if the Delaware General Corporation Law requires, the payment of
- -------
such expenses incurred by a director or officer in his or her capacity as a
director or officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of a proceeding, shall be made only upon delivery to the corporation
of an undertaking, by or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such director or
officer is not entitled to be indemnified under this Section or otherwise.
Section 2. Right of Claimant to Bring Suit.
--------------------------------------------
If a claim under Section 1 of this ARTICLE VI, is not paid in full by
the corporation within ninety days after a written claim has been received by
the corporation, the claimant may at any time thereafter bring suit against the
corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the corporation) that the claimant has
not met the standards of conduct which make it permissible under the Delaware
General Corporation Law for the corporation to indemnify the claimant for the
amount claimed, but the burden of proving such defense shall be on the
corporation. Neither the failure of the corporation (including its Board of
Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the corporation (including
13
<PAGE>
its Board of Directors, independent legal counsel, or its stockholders) that the
claimant has not met such applicable standard of conduct, shall be a defense to
the action or create a presumption that the claimant has not met the applicable
standard of conduct.
Section 3. Non-Exclusivity of Rights.
--------------------------------------
The right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition conferred in this
ARTICLE VI shall not be exclusive of any other right which any person may have
or hereafter acquire under any statute, provision of the Certificate of
Incorporation, bylaw, agreement, vote of stockholders or otherwise.
Section 4. Insurance.
----------------------
The corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the Corporation or
another corporation, partnership, joint venture, trust or other enterprise
against any such expense, liability or loss, whether or not the corporation
would have the power to indemnify such person against such expense, liability or
loss under the Delaware General Corporation Law.
ARTICLE VII - NOTICES
Section 1. Notices.
--------------------
Whenever notice is required to be given to any stockholder, director,
officer, or agent, such requirement shall not be construed to mean personal
notice. Such notice may in every instance be effectively given by depositing a
writing in a post office or letter box, in a postpaid, sealed wrapper, or by
dispatching a prepaid telegram, addressed to such stockholder, director,
officer, or agent at his or her address as the same appears on the books of the
corporation. The time when such notice is dispatched shall be the time of the
giving of the notice.
Section 2. Waivers.
--------------------
A written waiver of any notice, signed by a stockholder, director,
officer or agent, whether before or after the time of the event for which notice
is to be given, shall be deemed equivalent to the notice required to be given to
such stockholder, director, officer, or agent. Neither the business nor the
purpose of any meeting need be specified in such a waiver.
14
<PAGE>
ARTICLE VIII - MISCELLANEOUS
Section 1. Facsimile Signatures.
---------------------------------
In addition to the provisions for the use of facsimile signatures
elsewhere specifically authorized in these bylaws, facsimile signatures of any
officer or officers of the corporation may be used whenever and as authorized by
the Board of Directors or the Executive Committee.
Section 2. Corporate Seal.
---------------------------
The Board of Directors shall provide a suitable seal, containing the
name of the corporation, which seal shall be in charge of the Secretary. If and
when so directed by the Board of Directors or by the Executive Committee,
duplicates of the seal may be kept and used by the Treasurer or by any Assistant
Secretary or Assistant Treasurer.
Section 3. Reliance upon Books, Reports and Records.
-----------------------------------------------------
Each director, each member of any committee designated by the Board of
Directors, and each officer of the corporation shall, in the performance of his
duties, be fully protected in relying in good faith upon the books of account or
other records of the corporation, including reports made to the corporation by
any of its officers, by an independent certified public accountant, or by an
appraiser selected with reasonable care.
Section 4. Fiscal Year.
------------------------
The fiscal year of the corporation shall terminate at the end of
business on December 31 in each year, and the following year shall begin on the
next day thereafter.
Section 5. Time Periods.
-------------------------
In applying any provision of these Bylaws which require that an act be
done or not done a specified number of days prior to an event or that an act be
done during a period of a specified number of days prior to any event, calendar
days shall be used, the day of the doing of the act shall be excluded, and the
day of the event shall be included.
Section 6. Independent Accountants.
------------------------------------
The Board of Directors shall appoint on an annual basis such firm of
independent public accountants as it shall deem appropriate to examine the
Company's financial books and records on at least an annual basis. The
appointment of said independent accountants shall, at the next succeeding annual
meeting of stockholders be presented to the stockholders of the Company for
ratification. Should the stockholders fail to ratify the appointment by the
Board of Directors of said independent public accountants, the Board of
15
<PAGE>
Directors shall take the matter under consideration and the vote of the
stockholders in that regard shall be deemed advisory in nature.
Section 7. Gender.
-------------------
Any reference to the masculine gender in these Bylaws shall be
construed to mean the feminine gender, as the situation may demand.
ARTICLE IX - AMENDMENTS
Section 1. Amendments.
-----------------------
These Bylaws may be amended or repealed by the Board of Directors at
any meeting or by the stockholders at any meeting.
16
<PAGE>
EXHIBIT 4.9
AMENDMENT TO DEPOSIT AGREEMENT
THIS AMENDMENT, dated as of March 27, 1997, is between MATTEL, INC.
("Mattel"), a Delaware corporation (as successor to Tyco Toys, Inc., a Delaware
corporation ("Tyco")) and THE FIRST NATIONAL BANK OF BOSTON, a Massachusetts
corporation ("FNBB" or the "Depositary").
WHEREAS, TYCO and Midlantic Bank, N.A., a national banking association
("Midlantic") have previously entered into that certain Depositary Agreement for
Series C Mandatorily Preferred Stock, dated as of June 24, 1996 (the "Deposit
Agreement"); and
WHEREAS, as of the date hereof, pursuant to instruments effected in
accordance with Section 5.04 of the Deposit Agreement, PNC Bank, N.A. (as
successor to Midlantic) was removed as depositary and FNBB was appointed as
depositary; and
WHEREAS, as a result of the merger of Tyco with and into Mattel,
effective as of the date hereof (the "Merger"), Mattel is the successor to
Tyco under the Deposit Agreement; and
WHEREAS, Mattel and the Depositary wish to effect, in accordance with
Section 6.01 of the Deposit Agreement, certain amendments to the Deposit
Agreement to reflect the effects of the Merger, including, without limitation,
the issuance of Series C Mandatorily Convertible Redeemable Preferred Stock, par
value $1.00 per share, of Mattel ("Mattel Series C Preferred Stock") in exchange
for Series C Mandatorily Convertible Redeemable Preferred Stock, par value $.10
per share, of Tyco ("Tyco Series C Preferred Stock"); and
NOW, THEREFORE, Mattel and the Depositary Agree as follows:
SECTION 1. Defined Terms. Except as otherwise set forth herein,
capitalized terms used herein and not otherwise defined shall have the
meaning provided in the Deposit Agreement.
SECTION 2. Successors. (a) All references to "Tyco Toys, Inc." or to
"Tyco" contained in the Deposit Agreement are hereby amended to be references
to Mattel and all references to the defined term "Company" contained in the
Deposit Agreement shall be references to Mattel.
(b) All references to "Midlantic Bank, N.A., a national banking
association" or to "Midlantic" contained in the Deposit Agreement are hereby
amended to be references to FNBB, and all references to the defined term
"Depositary" contained in the Deposit Agreement shall be references to
FNBB.
<PAGE>
SECTION 3. Certain Definitions. The following definitions set forth in
Article I of the Deposit are hereby amended in their entirety as follows:
"Common Stock" shall mean the common stock, par value $1.00 per
share, of the Company, or any security into which the Common Stock may be
converted.
"Company" shall mean Mattel, Inc., a Delaware corporation, and its
successors.
"Depositary" shall mean The First National Bank of Boston, a
Massachusetts corporation, and any successor as Depositary hereunder.
"Depositary Shares" shall mean Depositary Shares, each representing
ownership of one twenty-fifth of a share of Stock deposited with the
Depositary under this Deposit Agreement, all as evidenced by a Receipt.
Subject to the terms of this Deposit Agreement, each owner of a Depositary
Share is entitled, proportionately, to all the rights, preferences and
privileges of the Stock represented by such Depositary Share, including the
dividend, voting, redemption, conversion and liquidation rights and subject,
proportionately, to all of the limitations of the Stock represented thereby,
contained in the Certificate, and to the benefits of all obligations of the
Company under the Certificate.
"Depositary's Agent" shall mean Boston EquiServe, L.P., or any other
agent appointed by the Depositary pursuant to Section 7.05.
"Depositary's Office" shall mean the corporate trust office of the
Depositary in Canton, Massachusetts, at which at any particular time its
depositary receipt business shall be administered.
"Stock" shall mean the Series C Mandatorily Convertible Redeemable
Preferred Stock, par value $1.00 per share, of the Company.
SECTION 4. Lost Receipts, etc. Section 2.09 of the Deposit Agreement is
hereby amended by inserting a period after the word "it" in the phrase
"reasonable indemnification satisfactory to it" therein, and by deleting the
remainder of the sentence.
SECTION 5. State of Organization of the Depositary. Clause (i) of the last
sentence of the last paragraph of Section 5.03 is hereby amended in its entirety
as follows:
"the Depositary has been duly organized and is validly
existing and in good standing under the laws of the State
<PAGE>
of Massachusetts, with full power, authority and legal right under such
law to execute, deliver and carry out the terms of this Deposit
Agreement."
Section 6. Miscellaneous.
(a) This Amendment may be executed by the parties hereto in
separate counterparts, each of which shall constitute one and the same original.
(b) Except as provided in this Amendment to Deposit Agreement,
the Deposit Agreement remains in full force and effect without any amendment or
alteration.
(signatures follow)
<PAGE>
IN WITNESS WHEREOF, Mattel and the Depositary have duly executed this
Amendment to Deposit Agreement as of the day and year first above set forth.
MATTEL, INC.
By: /s/ Ned Mansour
-------------------------
Name: Ned Mansour
Title: President, Corporate Operations
THE FIRST NATIONAL BANK OF BOSTON
By: /s/ Geoffrey D. Anderson
--------------------------
Name: Geoffrey D. Anderson
Title: Director, Client Services
<PAGE>
Exhibit 4.11
AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
THIS AMENDMENT TO REGISTRATION RIGHTS AGREEMENT is dated as of March
27, 1997, and is among TYCO TOYS, INC., a Delaware corporation ("Tyco"),
MATTEL, INC., a Delaware corporation ("Mattel"), as successor to Tyco, CORPORATE
PARTNERS, L.P., a Delaware limited partnership ("Corporate Partners"), CORPORATE
OFFSHORE PARTNERS, L.P., a Bermuda limited partnership ("Offshore Partners", and
collectively with Corporate Partners, the "Partnerships"), and THE STATE BOARD
OF ADMINISTRATION OF FLORIDA, a body corporate organized under the constitution
of the State of Florida (the "State Board", and collectively with the
Partnerships, the "Purchasers").
WHEREAS, as of March 27, 1997 (the "Effective Time"), pursuant to that
certain Agreement and Plan of Merger, dated as of November 17, 1996, and amended
as of November 22, 1996, by and among Tyco, Mattel and a wholly owned subsidiary
of Mattel (the "Merger Agreement"), Tyco will be merged with and into Mattel,
with Mattel continuing as the surviving corporation (the "Merger"); and
WHEREAS, the Purchasers hold 53,631 shares of Series B Voting,
Convertible, Exchangeable Preferred Stock, par value $.10 per share, of Tyco
("Tyco Preferred Stock"); and
WHEREAS, the Purchasers and Tyco have previously entered into a
Registration Rights Agreement dated as of April 14, 1996 with respect to the
Tyco Preferred Stock (the "Registration Rights Agreement"); and
WHEREAS, pursuant to that certain Stockholders Agreement (the
"Stockholders Agreement") dated as of November 17, 1996, by and among Mattel,
the Purchasers and Corporate Advisors, L.P. ("Corporate Advisors"), Mattel and
each Purchaser agreed that on the Effective Time, as part of the Merger, each
share of Tyco Preferred Stock beneficially owned by such Purchaser would be
converted into or exchanged for one share of a series of preferred stock of
Mattel having economic terms as nearly equivalent as possible to, and with the
same voting and other rights as, the Tyco Preferred Stock, including the right
to convert into common stock of Mattel; and
WHEREAS, pursuant to the Merger Agreement, each outstanding share of
Tyco Preferred Stock is being converted into a share of Series B Voting
Convertible Exchangeable Preferred Stock, par value $1.00 per share, of Mattel
(the "Mattel Preferred Stock"), with economic terms as nearly equivalent as
possible to, and with the same voting and other rights as correspond to the Tyco
Preferred Stock; and
WHEREAS, pursuant to the Stockholders Agreement, Mattel agreed with
the Purchasers and Corporate Advisors to
<PAGE>
assume and be bound by all obligations of Tyco under the Registration Rights
Agreement, and Mattel and the Purchasers agreed that such agreement should be
amended to pertain to the Mattel Preferred Stock (and the securities which may
be issued on conversion or exchange thereof) in lieu of the Tyco Preferred
Stock; and
WHEREAS, Section 4 of the Registration Rights Agreement provides that the
Registration Rights Agreement may be amended by a written instrument signed by
Tyco and the holder or holders of a majority of the shares of Registrable
Securities (as defined therein); and
WHEREAS, Section 8 of the Registration Rights Agreement provides that Tyco
may not assign any of its rights and obligations thereunder without the consent
of all of the Registrable Securities then outstanding; and
WHEREAS, the Purchasers collectively hold all of the shares of Registrable
Securities currently outstanding;
NOW, THEREFORE, in consideration of the premises and representations,
warranties, covenants and agreements set forth herein, and pursuant to the terms
of the Stockholders Agreement, the parties hereby amend and supplement the
Registration Rights Agreement as follows:
SECTION 1. Defined Terms. Except as otherwise set forth herein, capitalized
terms used herein and not otherwise defined shall have the meaning provided in
the Registration Rights Agreement.
SECTION 2. Successor. All references to "Tyco Toys, Inc." or to "Tyco"
contained in the Registration Rights Agreement, other than on the signature
page, are hereby amended to be references to Mattel and all references to the
defined term "Company" contained in the Registration Rights Agreement shall be
references to Mattel, and Mattel confirms that it has assumed and is bound by
all obligations of Tyco under the Registration Rights Agreement.
SECTION 3. Preferred Stock. All references to "Series B Voting Convertible
Exchangeable Preferred Stock, par value $0.10 per share" or "Preferred Stock"
are hereby amended to be references to the Series B Voting Convertible
Exchangeable Preferred Stock, par value $1.00 per share, of Mattel.
SECTION 4. Par Value of Common Stock; Conversion Price. The second sentence
of the first paragraph of the Registration Rights Agreement is hereby amended in
its entirety to read as follows:
"The Preferred Stock is convertible into shares of the Company's common
stock, par value $1.00 per share (the
<PAGE>
"Common Stock") at a price per share equal to $10.00 divided by 0.48876, as
such price may be adjusted pursuant to the Certificate of Designations,
Preferences, Rights and Limitations relating to the Preferred Stock.
SECTION 5. Authorized Agent. (a) The phrase "Prentice Hall, having
offices at the date hereof at 15 Columbus Circle, New York, N.Y. 10023, as its
authorized agent" in the first sentence of paragraph (b) of Section 14 is hereby
amended in its entirety as follows:
"CT Corporation System, having offices as of March 31, 1997, at Corporation
Trust Center, 1209 Orange Street, Wilmington, Delaware 19081, as its
authorized agent"
(b) The reference to "Prentice Hall" in the second sentence of paragraph
(b) of Section 14 is hereby amended to be a reference to "CT Corporation
System".
SECTION 6. Miscellaneous.
(a) This Amendment to Registration Rights Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware without
regard to its rules of conflict of laws.
(b) This Amendment to Registration Rights Agreement may be executed by the
parties hereto in separate counterparts, each of which shall constitute one and
the same original.
(c) Except as provided in this Amendment to Registration Rights Agreement,
the Registration Rights Agreement remains in full force and effect without any
amendment or alteration.
SECTION 7. Counterparts. This Amendment may be executed in one or more
counterparts, all of which shall be considered one and the same and each of
which shall be deemed an original.
3
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered by their respective officers thereunto duly authorized as of the
date first above written.
TYCO TOYS, INC.
By: /s/ R. M. Kennedy, Jr.
------------------------------
Name: R. M. Kennedy, Jr.
Title: Senior Vice President
and General Counsel
MATTEL, INC.
By /s/ Ned Mansour
-------------------------------
Name: Ned Mansour
Title: President, Corporate Operations
CORPORATE PARTNERS, L.P.,
By: Corporate Advisors, L.P.
Attorney-in-Fact
By: LFCP Corp., General Partner
By: /s/ David B. Golub
------------------------------
Name: David B. Golub
Title: Secretary & Managing
Director
CORPORATE OFFSHORE PARTNERS, L.P.,
By: Corporate Advisors, L.P.,
Attorney-in-Fact
By: LFCP Corp., General Partner
By: /s/ David B. Golub
------------------------------
Name: David B. Golub
Title: Secretary & Managing
Director
<PAGE>
THE STATE BOARD OF ADMINISTRATION OF
FLORIDA,
By: Corporate Advisors, L.P.
Attorney-in-Fact
By: LFCP Corp., General Partner
By: /s/ David B. Golub
------------------------------------
Name: David B. Golub
Title: Secretary & Managing Director
<PAGE>
EXHIBIT 5
[LETTERHEAD OF MATTEL, INC.]
September 25, 1997
Ladies and Gentleman:
I am the Assistant General Counsel of Mattel, Inc., a Delaware corporation
(the "Company"). I am delivering this opinion in connection with the
registration under the Securities Act of 1933, as amended (the "1933 Act"), of
2,752,330 authorized and issued shares of the Common Stock (the "Shares"), $1.00
par value per share, of the Company to be sold by certain selling stockholders.
This opinion is delivered in accordance with the requirements of Item 601(b)(5)
of Regulation S-K under the 1933 Act in connection with the Registration
Statement on Form S-3 (the "Registration Statement"), for the aforementioned
sale, filed with the Securities and Exchange Commission (the "Commission") under
the 1933 Act.
In rendering the opinion set forth herein, I have made such investigations
of fact and law, and examined such documents and instruments, or copies thereof
established to my satisfaction to be true and correct copies thereof, as I have
deemed necessary under the circumstances.
Based upon the foregoing and such other examination of law and fact as I
have deemed necessary, and in reliance thereon, I am of the opinion that, the
Shares were duly authorized and are validly issued, fully paid and
nonassessable.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to me under the caption "Legal
Matters" in the Prospectus which is a part of the Registration Statement. In
giving such consent, I do not thereby admit that I am in the category of
persons whose consent is required under Section 7 of the 1933 Act or the rules
and regulations of the Commission thereunder.
Best regards,
/s/ Leland P. Smith
Leland P. Smith
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
February 5, 1997 (July 18, 1997 with respect to the merger with Tyco Toys, Inc.
and other subsequent events described in Note 11), which appears in the Current
Report on Form 8-K dated July 30, 1997. We also consent to the reference to us
under the heading "Experts" in such Prospectus.
/s/ PRICE WATERHOUSE LLP
PRICE WATERHOUSE LLP
Los Angeles, California
September 25, 1997
<PAGE>
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Mattel, Inc. on Form S-3 of our report dated February 4, 1997 (except for note
15, as to which the date is March 27, 1997) relating to the financial statements
of Tyco Toys, Inc. and subsidiaries not presented separately herein, appearing
in Mattel's Current Report on Form 8-K dated July 30, 1997, and to the reference
to us under the heading "Experts" in the Prospectus, which is part of this
Registration Statement.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Philadelphia, Pennsylvania
September 25, 1997
