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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934 [FEE REQUIRED]
For the fiscal year ended DECEMBER 31, 1996
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934 [NO FEE REQUIRED]
For the transition period from ______________ to __________
Commission File No. 1-13638
TOY BIZ, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 13-3711775
(State of incorporation) (I.R.S. employer identification number)
333 EAST 38TH STREET
NEW YORK, NEW YORK 10016
(Address of principal executive offices, including zip code)
(212) 682-4700
(Registrant's telephone number, including area code)
____________________________________________________________
Securities registered pursuant to Section 12(b) of the Act:
CLASS A COMMON STOCK, PAR VALUE $.01 PER SHARE
Securities registered pursuant to Section 12(g) of the Act:
None
Indicate by check mark whether the Registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
--- ---
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of Registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [X]
The approximate aggregate market value of the voting stock held by non-
affiliates of the Registrant as of March 28, 1997 was $63,403,257, based on a
price of $9.50 per share, the closing sales price for the Registrant's Class A
Common Stock as reported in the New York Stock Exchange Composite Transaction
Tape on that date.
As of March 28, 1997, there were 20,352,127 outstanding shares of the
Registrant's Class A Common Stock, par value $.01 per share (the "Class A Common
Stock") and 7,394,000 outstanding shares of the Registrant's Class B Common
Stock, par value $.01 per share (the "Class B Common Stock").
DOCUMENTS INCORPORATED BY REFERENCE
None.
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TABLE OF CONTENTS
Page
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PART I..................................................................... 1
ITEM 1. BUSINESS.................................................... 1
ITEM 2. PROPERTIES.................................................. 10
ITEM 3. LEGAL PROCEEDINGS........................................... 10
ITEM 4. SUBMISSION OF MATTERS TO A
VOTE OF SECURITY HOLDERS.................................... 11
PART II.................................................................... 11
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED
STOCKHOLDER MATTERS......................................... 11
ITEM 6. SELECTED FINANCIAL DATA..................................... 12
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS......................... 13
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA................. 16
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS
ON ACCOUNTING AND FINANCIAL DISCLOSURE...................... 16
PART III................................................................... 17
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF
THE REGISTRANT.............................................. 17
ITEM 11. EXECUTIVE COMPENSATION...................................... 21
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL
OWNERS AND MANAGEMENT....................................... 24
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.............. 25
PART IV.................................................................... 31
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES,
AND REPORTS ON FORM 8-K..................................... 31
SIGNATURES................................................................. 37
INDEX TO FINANCIAL STATEMENTS AND FINANCIAL
STATEMENT SCHEDULE......................................................... F-1
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CAUTIONARY STATEMENT FOR PURPOSES OF
THE "SAFE HARBOR" PROVISIONS OF
THE PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995
EXCEPT FOR HISTORICAL INFORMATION CONTAINED HEREIN, THE STATEMENTS IN THIS
REPORT REGARDING THE COMPANY'S PRODUCTS, LICENSING RELATIONSHIPS AND GROWTH
PLANS ARE FORWARD-LOOKING STATEMENTS THAT ARE DEPENDENT UPON CERTAIN RISKS AND
UNCERTAINTIES, INCLUDING THOSE RELATING TO DEVELOPMENTS IN THE MARVEL
ENTERTAINMENT GROUP, INC. BANKRUPTCY PROCEEDINGS, THE POPULARITY OF LICENSED
CHARACTERS AND TRADEMARKS, CONSUMER ACCEPTANCE OF NEW PRODUCT INTRODUCTIONS, THE
DEPENDENCE ON MANUFACTURERS IN CHINA, U.S. TRADE RELATIONS WITH CHINA, CHANGING
CONSUMER PREFERENCES, PRODUCTION DELAYS OR SHORTFALLS AND GENERAL ECONOMIC
CONDITIONS. THOSE AND OTHER RISKS AND UNCERTAINTIES ARE DESCRIBED IN THE
COMPANY'S FILINGS WITH THE SECURITIES AND EXCHANGE COMMISSION.
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PART I
ITEM 1. BUSINESS
GENERAL
Toy Biz, Inc. (the "Company") was incorporated in Delaware on March 18,
1993. The Company designs, markets and distributes a diverse product line
comprised of boys', girls', infant/pre-school and activity toys in the United
States and internationally, based on popular entertainment properties, consumer
brand names and proprietary designs. The Company's products are distributed to
a number of general and specialty merchandisers and distributors, principally in
the United States and around the world.
For purposes of this Form 10-K Annual Report, the "Company" includes,
unless the context otherwise requires, the Company, its subsidiary and their
respective predecessors. The "Predecessor Company" means Toy Biz, Inc., a
Delaware corporation incorporated in 1990 and subsequently renamed Zib Inc., and
its foreign sales affiliate, Toy Biz International Ltd., a Hong Kong
corporation. The Company's principal executive offices are located at 333 East
38th Street, New York, New York 10016 and its telephone number is (212) 682-
4700.
In connection with the Company's formation, the Company obtained an
exclusive, perpetual and royalty-free license (the "Marvel License") from Marvel
Entertainment Group, Inc. ("Marvel") which permits the Company to produce a
broad range of toys based on Marvel's more than 3,500 characters (the "Marvel
Characters"). The Company also has licenses to manufacture certain toy products
based on non-Marvel Characters depicted in television programs such as Hercules:
The Legendary Journeys(TM), Xena: Princess Warrior(TM) and Muppet Babies(TM),
all of which are broadcast on network, syndicated or cable television. A number
of motion pictures as to which the Company has obtained licenses to manufacture
certain products have been completed or are in the planning stages. These
include a made-for-television movie entitled Generation X(TM), which premiered
in prime time on the Fox Network, for which the Company has manufactured and
distributed mainly action figures, as well as a feature film entitled Muppet
Treasure Island(TM), a widely distributed first run motion picture, for which
the Company has manufactured and distributed certain plush items. Other motion
pictures (both related and unrelated to the Marvel Characters) for which the
Company has obtained licenses to manufacture certain products, are planned for
release by such licensors as The Walt Disney Company ("Disney") and Universal
City Studios, Inc. or its affiliates ("Universal"). See " - Licensing and
Related Rights - Marvel License Agreement."
The Company believes that media events associated with the characters on
which it bases certain of its toy products increase overall consumer awareness
and popularity of these characters and the Company has in part followed a
strategy intended to capitalize on the popularity generated by such media
exposure. The Company has used its success in marketing the Marvel line as a
means of attracting licenses for use of recognized trademarks and brand names
such as Gerber(R), Coleman(R), and NASCAR(R).
POSSIBLE CHANGE OF CONTROL
Marvel owns approximately 26.6% of the outstanding common stock of the
Company and has 78.4% of the total voting power of the Company's outstanding
common stock. On December 27, 1996, Marvel and its subsidiaries, other than
Panini S.p.A. ("Panini"), Marvel Restaurant Venture Corp., a general partner in
Marvel's Marvel Mania restaurant joint venture, and certain inactive
subsidiaries, filed voluntary petitions for reorganization under Chapter 11 of
the U.S. Bankruptcy Code in the United States Bankruptcy Court for the District
of Delaware (the "Petitions"). In a separate case, Marvel Holdings Inc.
("Marvel Holdings"), Marvel (Parent) Holdings Inc. ("Marvel (Parent)") and
Marvel III Holdings Inc. ("Marvel III" and collectively with Marvel Holdings and
Marvel (Parent), the "Marvel Holding Companies") also filed voluntary petitions
for reorganization under Chapter 11. Under the proposed joint plan of
reorganization (the "Joint Plan of Reorganization"), Andrews Group Incorporated,
a Delaware corporation ("Andrews Group"), entered into a Stock Purchase
Agreement with Marvel dated as of December 27, 1996 (the "Stock Acquisition
Agreement") pursuant to which Andrews Group or an affiliate thereof
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would have acquired from Marvel a number of shares of common stock of Marvel
representing 80.8% of the outstanding shares of Marvel common stock, after
giving effect to such acquisition, in consideration for $365 million in cash or,
at the option of Andrews Group, shares of Class A Common Stock, par value $.01
per share (the "Class A Common Stock"), of the Company or a combination of the
foregoing. Andrews Group has since terminated the Stock Acquisition Agreement.
Approximately 79% of the outstanding common stock of Marvel is owned (subject to
certain pledges thereof) by direct and indirect wholly owned subsidiaries of
Andrews Group.
On February 26, 1997, upon consideration of a motion made by the Official
Bondholder's Committee in the Marvel Holdings, Marvel (Parent) and Marvel III
bankruptcy cases, the bankruptcy court granted relief from the automatic stay
which would allow the Official Bondholder's Committee to exercise certain
creditors' remedies. Such remedies include the right to direct the indenture
trustee to vote the common stock of Marvel and the capital stock of Marvel
Holdings and Marvel (Parent) that is pledged under the indentures governing the
secured notes issued by Marvel Holdings, Marvel (Parent) and Marvel III to the
creditors represented by the Official Bondholder's Committee. Marvel and the
Marvel Holding Companies have collectively pledged approximately 80% of the
outstanding common stock of Marvel. On March 19, 1997, the Official
Bondholder's Committee notified Marvel that it intended to exercise its voting
rights to replace the board of directors of Marvel. On March 24, 1997, the
bankruptcy court ruled that the Official Bondholder's Committee could exercise
the voting rights associated with the capital stock of Marvel Holdings and
Marvel (Parent), but could not exercise the voting rights associated with the
common stock of Marvel until authorized to do so by further order of the
bankruptcy court. The incumbent board of directors of Marvel remains in office
as of April 14, 1997. See "Item 12. Security Ownership of Certain Beneficial
Owners and Management." Marvel is a party to a Stockholders' Agreement with the
Company, Avi Arad ("Arad") and Isaac Perlmutter ("Perlmutter") which provides
for Marvel's shares of Class B Common Stock to be converted into Class A Common
Stock upon a change of control of Marvel. See "Item 13. Certain Relationships
and Related Transactions - Stockholders' Agreement and Class B Voting Trusts."
On December 27, 1996, following approval by an independent committee of the
Company's board of directors (the "Independent Committee"), the Company entered
into an Agreement and Plan of Merger (the "Merger Agreement") with Andrews Group
and Andrews Acquisition Corp. ("Acquisition"), an affiliate of Andrews Group,
pursuant to which Andrews Group would acquire the entire equity interest in the
Company not otherwise acquired from Isaac Perlmutter and Avi Arad, by means of a
merger (the "Merger") of the Company with and into Acquisition. On November 20,
1996, Andrews Group entered into stock purchase agreements (the "Stock Purchase
Agreements"), which were subsequently amended on January 29, 1997, with Arad and
with Perlmutter and certain of his affiliates (collectively, the "Perlmutter
Group"), pursuant to which Andrews Group would, immediately prior to the Merger,
purchase all of the Class A Common Stock of the Company held by Arad and the
Perlmutter Group. Marvel owns all but two shares (which two shares are held in
voting trusts) of the Class B common stock, par value $.01 per share (the "Class
B Common Stock" and, together with the Class A Common Stock, the "Common
Stock"), of the Company. See "Item 3. Legal Proceedings."
Andrews Group's obligation to consummate the Merger is conditioned upon,
among other things, confirmation of the Joint Plan of Reorganization with
respect to Marvel and certain of its subsidiaries and the satisfaction or waiver
of all of the conditions to closing under the Stock Acquisition Agreement (as
defined below).
The Company, Arad and Perlmutter have each received notice from Andrews
Group that Andrews Group has terminated its Stock Acquisition Agreement with
Marvel, and accordingly a condition to the obligations of Andrews Group and
Acquisition to consummate the Merger pursuant to the Merger Agreement will not
be satisfied. Andrews Group further advised the Company, Arad and Perlmutter
that Andrews Group does not intend to waive such condition, and anticipates that
the Merger will not be consummated. While the Merger Agreement has not been
formally terminated, the Merger will not be consummated if Andrews Group does
not waive such condition. Because such condition to consummation of the Merger
will not be satisfied, the conditions to the obligations of Andrews Group to
consummate the transactions contemplated by the Stock Purchase Agreements
will not be satisfied.
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The Merger Agreement, the Stock Purchase Agreements and the Stock
Acquisition Agreement are described more specifically herein under "Item 13.
Certain Relationships and Related Transactions."
DEVELOPMENTS WITH RESPECT TO THE COMPANY'S BUSINESS DURING FISCAL YEAR 1996
During the past fiscal year, the Company continued to launch products based
on the various Marvel Character groups mentioned above. These included, among
other things, new products and product line extensions in the Company's X-Men(R)
and Spider-Man(R) ranges.
During 1996, the Company also continued its efforts to develop toys under
licenses for recognized consumer brand names and other popular characters. The
Company continued to build on its line of dolls and infant and toddler learning
toys marketed under the Gerber(R) trademark. The Company continues to develop a
line of children's toys with a camping and outdoor theme sold under the
Coleman(R) trademark. The Company also licensed from NASCAR(R) and several
well-known stock car drivers the rights to manufacture various toy products
based upon such trademarks and personalities.
During 1996, the Company also continued to manufacture and distribute
additional proprietary products in various categories including: Baby Tumbles
Surprise(TM), Baby Headstand Surprise(TM), Baby So Real(TM), Take Care of Me
Twins(TM) and multi-activity game tables.
Since completing the acquisitions of the assets of Spectra Star, Inc.
("Spectra Star(R)") and Quest Aerospace Education, Inc. ("Quest") in 1995, the
Company's specialized activity toy business has continued to grow, with Spectra
Star(R) brand kites comprising a substantial share of United States domestic
kite business, and Quest(TM) brand rockets entering the growing mass merchandise
market and specialty store distribution channels.
INDUSTRY BACKGROUND
The toy industry's highly competitive environment continues to place cost
pressures on manufacturers/distributors. Discretionary spending among potential
toy consumers is limited and the toy industry competes for such dollars along
with the makers of computers and video games. The Company believes that its
products are well made, attractively priced, and benefit from television
exposure arising from scheduled programming, media events, advertising and the
strength of recognized trademarks or brand names.
Large mass market toy retailers dominate the toy industry and feature a
large selection of toys. Continued consolidation among discount-oriented
retailers can be expected to require toy companies to keep prices low and to
implement and maintain production and inventory control methods permitting them
to respond quickly to changes in demand.
PRODUCTS
The Company has historically marketed a variety of toy products designed
for children of different age groups. The Company's current product strategy
seeks broad expansion and diversification of its product lines.
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Boys' Products
The Marvel License includes more than 3,500 Marvel Characters, all of which
are available to the Company for toy development. The segment of the Marvel
universe which has been most successfully developed by the Company is the X-
Men(R), consisting of over 300 characters. The popularity of the X-Men(R)
primarily resulted from that character group's long-standing success as a comic
book title, as well as the past success of the Fox Children's Network's animated
X-Men(R) television show. The Company's sales of the X-Men(R) product line
decreased in 1996 as that product line matured.
The Spider-Man(R) product line also capitalizes on an animated television
series which is broadcast on the Fox Children's Network. The Spider-Man(R) toy
line includes action figures, vehicles and playsets. The Company also markets
boys' toys based on characters portrayed in the Marvel-related Iron Man(R) and
Fantastic Four(TM) syndicated television programs, and is planning a launch of
Silver Surfer(TM) products based upon the Silver Surfer animated television
program (which is expected to begin broadcasting on the Fox Children's Network
in 1997).
The Company's boys' business is also comprised of non-Marvel Character
genres supported by television advertising and broadcasts. The Company
continues to market a line of action figures and playsets based on characters
portrayed in the Hercules: The Legendary Journey(TM) and Xena: Princess
Warrior(TM) syndicated television programs. The Company also markets playsets
and vehicles using well-known stock car drivers and NASCAR(R) licenses.
Many of the action figure properties have proven to be highly popular with
the Company's international customers, especially those in Europe.
Girls' Products
The Company's girls' business has continued to thrive with new
introductions and product line extensions. Baby Tumbles Surprise(TM) and Baby
Headstand Surprise(TM) continue as top-selling unit volume dolls. The Company
has also marketed Baby Looks So Real(TM), Take Care of Me Twins (TM), Bendy
Wendy(TM), and Pretty Sparkle Dancer(TM). The Company believes that it will
continue to be an important source of new girls' products for the retail toy
market.
Preschool Products
The Company continues to take advantage of the name recognition and the
goodwill associated with the Gerber(R) name with the production of its line of
dolls, as well as infant and toddler learning toys with the Gerber(R) trademark
and/or the famous trademarked Gerber(R) baby face.
Activity Toys
The Spectra Star(R) brand name accounts for a substantial share of the
United States domestic kite business, and thrives on license-driven products.
The Company's kite licenses have been granted by the licensing entities
associated with such well-known licensors as Disney, Universal and Warner Bros.
The Company's activity toy products also include the model rocketry products
associated with the business acquired from Quest and the Company's proprietary
multi-activity game tables.
FACTORS WHICH MAY AFFECT THE COMPANY'S PRODUCT STRATEGY
The success of the Company's product strategy depends in part upon consumer
acceptance of its new toy products for which there can be no assurance.
Consumer acceptance of many of the Company's products is dependent on the
popularity generated by television programs and other media events, the strength
of recognized consumer trademarks and brand names, and consumer interest in the
Company's core product categories. There
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can be no assurance that any scheduled or anticipated television program or
other media event will occur at all or will continue to be broadcast or will
otherwise result in substantial marketing value to, or sales of the Company's
toy products. Nor can there be any assurance that the goodwill associated with
recognized consumer trademarks or brand names will add marketing value to the
Company's toy products or that the Company's core products will maintain the
buying interest of consumers. The Company's new and existing products are also
subject to changing consumer preferences. Some products in the toy industry are
successfully marketed for a limited period, sometimes only one or two years.
There can be no assurance that any existing product lines will retain their
current popularity or that new products developed by the Company will meet with
the same success as the Company's current products. While it is impossible to
predict future trends in a business as fad-oriented as the toy industry, the
Company's believes its product line is sufficiently diverse to benefit from such
trends. No assurance can be given that the Company will accurately anticipate
future trends or will be able to successfully develop, produce and market
products to take advantage of market opportunities presented by such trends.
The Company believes its sales and business have been adversely affected by
concerns among retailers as to the impact of the Marvel bankruptcy. While the
Company is attempting to address these concerns, to the extent they are not
alleviated, it can be expected that they will continue to adversely affect
demand for the Company's products.
LICENSING AND RELATED RIGHTS
In carrying out its business strategy, the Company continuously monitors
existing licensed properties and pursues new licenses, where it believes such
licenses fit with the Company's core product lines, or where they may add to the
Company's core product mix.
In 1996, the Company produced a majority of its products under licenses
which it has obtained from third parties. Some of these licenses confer rights
to exploit original concepts developed by toy inventors and designers.
Character licenses, such as the Marvel License, permit the Company to
manufacture and market toys based on characters owned by others which have or
develop their own popular identity, often through exposure in various media such
as television programs, movies, cartoons and books. Other licenses, referred to
as trademark or brand name licenses, permit the Company to produce toys bearing
the recognized consumer trademark or brand name owned by the licensor. In
return for these rights (other than those under the Marvel License), the Company
pays royalties to its licensors.
A determination to acquire a character license must frequently be made
before the commercial introduction of the property in which a licensed character
appears, and such license arrangements often require the payment of non-
refundable advances or guaranteed minimum royalties. Accordingly, the success
of a character licensing program is dependent upon the ability of the Company to
accurately assess the future success and popularity of the character properties
which it is evaluating, to bid for such properties on a selective basis in
accordance with such evaluation and to capitalize on the properties for which it
has obtained licenses in an expeditious manner. The success of the trademark
licensing program depends in part on whether the strength of the licensed
trademark will produce marketing value for the toy products. There can be no
assurance that product produced under the licenses acquired by the Company will
obtain significant market acceptance.
Royalties paid by the Company to licensors and inventors are typically
based on a percentage of net sales. Most licenses have terms of one to three
years and some are renewable at the option of the Company upon payment of
minimum guaranteed payments or the attainment of certain sales levels during the
term of the license. In the future, royalty rates and minimum guaranteed
payments may increase or decrease depending upon various competitive forces in
the toy industry.
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Marvel License Agreement
In connection with the formation of the Company, Marvel granted the Company
the Marvel License, an exclusive, perpetual and royalty-free license, subject to
certain limitations, to manufacture and distribute a broad range of toys and
toy-related products based upon the Marvel Characters and properties in which it
owns copyrights, trademarks or trade names. The Marvel License covers all
characters (including the associated copyrights and trademarks) owned by Marvel
and disseminated under the Marvel Comics(R) trademark during the perpetual term
of the Marvel License. The Marvel License currently covers more than 3,500
different Marvel Characters, including: Marvel Super Heroes(TM), X-Men(R) and
X-Force(TM) (including Wolverine(R), Nightcrawler(TM), Colossus(TM), Storm(TM),
Cyclops(TM), Bishop(R) and Gambit(TM)); Spider-Man(R); Captain America(R);
Fantastic Four(TM) (including Mr. Fantastic(TM), The Human Torch(TM), Invisible
Woman(TM) and The Thing(TM)); Hulk(R); Thor(TM); The Silver Surfer(TM);
Daredevil(TM); Iron Man(R); The Punisher(R); Dr. Strange(TM); Ghost Rider(TM);
Cable(TM) and the other Marvel Characters. The Marvel License covers specified
categories of toys and toy-related products. In connection with the Marvel
bankruptcy proceedings, representatives of the Official Bondholder's Committee
have publicly stated that they could seek to reject the Marvel License as an
executory contract. The Company would vigorously oppose any such action to
reject the Marvel License and would seek any and all damages resulting from any
such action.
The Marvel License restricts Marvel, subject to the Company's prior
consent, from manufacturing, using, distributing or advertising the licensed
products and from granting other licenses to use the Marvel Characters in
connection with any licensed toy products. If the Company fails to
substantially attain performance goals for sales of any category of licensed
products, Marvel has the right to require the Company to enter into one or more
sublicenses with respect to that category of licensed products on terms and
conditions that Marvel and the Company reasonably determine. While Marvel has
never required the Company to enter into any such sublicenses, the Company
maintains an active sublicensing program, as to which it retains all revenues,
and has granted sublicenses under the Marvel License to a variety of companies
in the United States and around the world.
Master License Agreement
Mr. Arad and the Company are parties to a license agreement which amended
the licenses between Mr. Arad and the Predecessor Company outstanding at the
time of the Company's formation and which governs the licensing of new material
to the Company by Mr. Arad thereafter. The license agreement provides that Mr.
Arad is entitled to receive royalty payments on net sales of Marvel Character-
based toys and on net sales of non-Marvel based toys of which Mr. Arad is the
inventor of record. In no event, however, may the total royalties payable to
Mr. Arad during any calendar year exceed $7.5 million.
Gerber License Agreement
The Company is a party to a license agreement with the Gerber Products
Company (the "Gerber License") which grants the Company an exclusive license to
use the Gerber(R) trademark in connection with the manufacture and distribution
of dolls as well as infant and toddler learning toys. The Gerber License, which
continues until December 31, 1997, provides for a royalty on net sales of the
licensed products and contains certain minimum sales guarantees and customary
quality control and indemnification provisions. The Gerber License is
terminable immediately by Gerber if Avi Arad & Associates ceases to be involved
in the product development and marketing of the licensed products or upon a
change of ownership, control or management of the Company without Gerber's prior
approval. A change in control of Marvel in the bankruptcy proceedings may give
rise to a change in control of the Company within the meaning of the Gerber
Agreement. In such event, the Company will seek any necessary approval from
Gerber for which there can be no assurance.
Other License Agreements
The Company is a party to a license agreement (the "Coleman License") with
The Coleman Company, Inc., an affiliate of the Company and Marvel, which grants
the Company a license to utilize the Coleman(R) trademark in
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connection with the manufacture, distribution and sale of certain children's
toys in the United States and Canada. The Coleman License expires December 31,
1997, and is subject to a three year extension based upon certain conditions.
INTELLECTUAL PROPERTY RIGHTS
The Company believes that intellectual property rights, including
trademarks, patented devices and designs, and copyrighted material, owned or
licensed by it represent valuable assets in the operation of its business. The
Company generally seeks trademark, patent and copyright protection in the United
States and certain other countries for intellectual property rights used in its
business to the extent that such protection is available and meaningful. The
Company believes that all material intellectual property rights necessary for
the operation of its business are adequately protected and available to it.
DESIGN AND DEVELOPMENT; MANUFACTURING
The Company maintains a product development staff and also obtains new
product ideas from third-party inventors. The time from concept to production
of a new toy can range from six to twenty-four months, depending on product
complexity.
The Company relies on independent parties in the People's Republic of China
("China") to manufacture a substantial portion of its products. The remainder
of its products are manufactured in Mexico or the United States. As a matter of
policy, the Company uses several different manufacturers. By concentrating its
manufacturing among certain manufacturers, the Company thereby pursues a
strategy of selecting manufacturers at which the Company's product volume
qualifies the Company as a significant customer. The Company is not a party to
any long-term agreement with any manufacturer.
The principal raw materials used in the production and sale of the
Company's products are plastics and paper products. Raw materials are generally
purchased by the manufacturers who deliver completed products to the Company.
The Company believes that an adequate supply of raw materials used in the
manufacture of its products is readily available from existing and alternative
sources at reasonable prices. However, there can be no assurance that, in the
event of a disruption in raw material supplies, alternative sources of supply
could be obtained in a timely manner.
While the Company is not dependent on any single manufacturer in China to
supply it with products, the Company is subject to the risks of foreign
manufacturing, including currency exchange fluctuations, transportation delays
and interruptions, and political or economic disruptions affecting international
businesses generally. The Company's ability to obtain products from its Chinese
manufacturers is dependent upon the United States' trade relationship with
China. The "Most Favored Nation" status of China, which is reviewed annually by
the United States government, is a regular topic of political controversy. The
loss of China's "Most Favored Nation Status" would increase the cost of
importing products from China significantly, which could have a material adverse
effect on the Company. The imposition of further trade sanctions on China could
result in significant supply disruptions or higher merchandise costs to the
Company. The Company believes that alternate sources of manufacturing are
available outside China, although there can be no assurance that these alternate
sources will be available on acceptable terms.
Transactions in which the Company purchases goods from manufacturers are
mostly effected in Hong Kong dollars, and, accordingly, fluctuations in Hong
Kong monetary rates may have an impact on the cost of goods. However, in recent
years, the value of the Hong Kong dollar has been tied to the value of the
United States dollar, eliminating fluctuations between the two currencies.
There can be no assurance that the Hong Kong dollar will continue to be tied to
the United States dollar. Furthermore, appreciation of Chinese currency values
relative to the Hong Kong dollar could increase the cost to the Company of
products manufactured in China and thereby have a negative impact on the
Company.
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The Company's Spectra Star(R) products are manufactured mainly in Mexico.
Pursuant to an agreement with the former owner of Spectra Star's business, the
Company reimburses all of the operating costs incurred in the manufacture of
Spectra Star(R) products at the former owner's Mexican facility. While it
expects to maintain a consistent level of manufacturing in Mexico, due to
capacity constraints of the Mexican facility, the Company does not currently
view manufacturing in that country as an alternative to manufacturing in China.
The Company is currently constructing a new manufacturing facility in Mexico in
order to expand manufacturing capacity for the Spectra Star(R) and possibly
other product lines. See "Item 7. Management's Discussion and Analysis of
Financial Condition and Results of Operations - Liquidity and Capital
Resources."
The Company maintains a Hong Kong office from which it regularly monitors
the progress and performance of its manufacturers and subcontractors. The
Company also uses Acts Testing Labs (H.K.) Ltd., a leading independent quality-
inspection firm, to maintain close contact with its manufacturers and
subcontractors in China and to monitor quality control of the Company's
products. The Company uses an affiliate of Acts Testing Labs (H.K.) Ltd. to
provide testing services for a limited amount of product currently produced in
the United States.
CUSTOMERS, MARKETING AND DISTRIBUTION
The Company markets and distributes its products throughout the world, with
sales to customers in the United States accounting for approximately 80% of the
Company's net sales in 1996.
The following table sets forth information concerning the Company's net
sales in the United States and internationally:
<TABLE>
<CAPTION>
Year ended December 31,
------------------------
1994 1995 1996
-------- -------------- ------
(In Millions)
<S> <C> <C> <C>
Domestic Sales....... $142.7 $175.8 $176.6
International Sales.. 13.8 20.6 45.0
------ ------ ------
Total.......... 156.5 196.4 221.6
====== ====== ======
</TABLE>
Domestic Sales
Outlets for the Company's products in the United States include specialty
toy retailers, mass merchandisers, mail order companies and variety stores, as
well as independent distributors who purchase products directly from the Company
and ship them to retail outlets. The Company's five largest customers include
Toys 'R' US, Inc., Wal-Mart Stores, Inc., Kmart Corporation, Target Stores,
Inc., a division of Dayton-Hudson Corp. and Kay-Bee Toys, a division of
Consolidated Stores, Inc. which customers accounted in the aggregate for
approximately 74.8% of the Company's domestic gross sales and 59.6% of the
Company's total sales in 1996.
The Company maintains a sales and marketing staff and retains various
independent manufacturers' sales representative organizations in the United
States. The Company's senior management, coordinates and supervises the efforts
of its salesmen and its other sales representatives. The Company also directly
introduces and markets to customers new products and extensions to previously
marketed product lines by participating in the major trade shows in New York,
Hong Kong and Europe and through a showroom maintained by the Company in New
York.
The Company utilizes an independent public warehouse in the Seattle,
Washington area, for storage of its products. The Company believes that
adequate alternative storage facilities are available. Disruptions in shipments
-8-
<PAGE>
from China or from this facility could have a material adverse effect on the
Company. The Company believes foreign markets continue to represent a
significant opportunity for future expansion.
International Sales
The Company's products are sold outside the United States through
independent distributors by its Hong Kong subsidiary, under supervision of the
Company's management. The Company's international product line generally
includes products currently or previously offered in the United States, packaged
to meet local regulatory and marketing requirements.
ADVERTISING
Although a portion of the Company's advertising budget is expended for
newspaper advertising, magazine advertising, catalogs and other promotional
materials, the Company allocates a majority of its advertising budget to
television promotion. The Company advertises on national television and
purchases advertising spots on a local basis. The Company believes that
television programs underlying various Company product lines increase exposure
and awareness. The Company engages Tangible Media, Inc. ("Tangible Media"), an
affiliate of Mr. Perlmutter, to purchase all advertising for the Company. The
Company believes that its transactions with Tangible Media are on terms which
are no less favorable to the Company than those that it could obtain from
independent third parties, and the Company may engage other companies to perform
similar services at any time. The Company retains the services of a media
consulting agency for advice on matters of advertising creativity.
COMPETITION
The toy industry is highly competitive and the Company competes with many
larger toy companies in the design and development of new toys, the procurement
of licenses and for adequate retail shelf space for its products. The larger
toy companies include Hasbro, Inc., Mattel Inc., Tyco Toys, Inc., Playmates,
Inc. and Bandai, Co., Ltd., and the Company considers Just Toys, Inc., Lewis
Galoob Toys, Inc., Empire of Carolina, Inc. and Ohio Art Co. to be among its
competitors as well. The Company believes that the Marvel License, other strong
character and product licenses, the industry reputation and ability of its
senior management, the quality of its products and its overhead and operational
controls have enabled the Company to compete successfully.
SEASONALITY
The Company, like the toy industry in general, experiences a significant
seasonal pattern in sales and net income due to the heavy demand for toys during
the Christmas season. During 1994, 1995 and 1996, 70%, 69% and 64% respectively,
of the Company's domestic net sales were realized during the months of July
through December. This seasonal pattern requires significant use of working
capital mainly to build inventory during the year, prior to the Christmas
selling season. The Company expects that its business will continue to
experience a significant seasonal pattern for the foreseeable future.
GOVERNMENT REGULATIONS; INSURANCE
The Company is subject to the provisions of, among other laws, the Federal
Hazardous Substances Act and the Federal Consumer Product Safety Act. Those
laws empower the Consumer Product Safety Commission (the "CPSC") to protect
children from hazardous toys and other articles. The CPSC has the authority to
exclude from the market articles which are found to be hazardous. Similar laws
exist in some states and cities in the United States, in Canada and Europe. The
Company maintains a quality control program (including the inspection of goods
at factories and the retention of an independent quality-inspection firm) to
ensure compliance with applicable laws. The Company's business exposes it to
potential product liability risks which are inherent in the design, marketing
and sale of children's products. The Company currently maintains product
liability insurance and an umbrella liability policy. In the event of a
successful claim against the Company, a lack of sufficient insurance coverage
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<PAGE>
could have a material adverse effect on the Company's business and operations.
Moreover, though the Company maintains what it considers to be adequate
insurance, any successful claim could materially and adversely affect the
reputation and prospects of the Company.
EMPLOYEES
As of March 28, 1997, the Company had 129 employees, of whom 63 were based
at the Company's New York office, 46 were based at the Company's Arizona offices
and 20 were based at the Company's Hong Kong office. In total, 77 employees are
involved in the manufacturing or creative process, while the balance of
employees are involved in sales, marketing, finance or administrative functions.
ITEM 2. PROPERTIES
The Company's principal executive offices and showroom are located in New
York City where the Company occupies approximately 17,000 square feet of office
space pursuant to a lease that expires in April 1997. The Company has entered
into a sublease that expires in June, 2000, pursuant to which it will occupy
approximately 30,000 square feet of new office space and expects to relocate its
executive and principal offices to such premises in June 1997. Under a lease
that expires in 2004, the Company also maintains a showroom at the Toy Center
Building in New York City, where the Company leases approximately 5,200 square
feet of display and office space. The Company also leases approximately 80,000
square feet of warehouse space in Yuma, Arizona, and leases additional property
in Arizona pursuant to a lease that expires in 2006, where it manufactures the
Quest product line. The Company believes that additional office and warehouse
space is readily available and that such new space, together with the Company's
existing facilities, will be adequate and suitable for the operation of its
business for the foreseeable future.
ITEM 3. LEGAL PROCEEDINGS
On December 28, 1995 G.D.L. Management Incorporated ("GDL") commenced an
action against the Company, Mr. Perlmutter and the Predecessor Company in the
Supreme Court of the State of New York, County of New York. The amended
complaint in that action, which was served on March 19, 1996, alleges that GDL
is entitled to receive ten percent of the capital stock of the Predecessor
Company pursuant to a 1990 agreement between GDL and Mr. Perlmutter and seeks
money damages based on the value of ten percent of the Company's Class A Common
Stock beneficially owned by Mr. Perlmutter and a variety of equitable remedies,
including an order rescinding the 1993 transfer of the assets of the Predecessor
Company to the Company pursuant to the Formation and Contribution Agreement.
Mr. Perlmutter has denied all of the material allegations made in support of
GDL's claims, and pursuant to the Formation and Contribution Agreement, agreed
to indemnify the Company in respect to any liability arising from GDL's claims.
The Company does not believe that any of the claims made against it will have a
material adverse effect on its financial position because it believes that all
of the claims against it are without merit and because of the indemnity provided
to it in the Formation and Contribution Agreement.
On November 15, 1996, John A. Holl, an alleged stockholder of the
Company, filed a purported class action complaint against the Company, Marvel,
Andrews Group, Ronald O. Perelman, Joseph Ahearn, Arad and Perlmutter in the
Court of Chancery of the State of Delaware in and for New Castle County. The
complaint alleges, inter alia, that in pursuing the Merger, pursuant to which
the shares held by the Company's public stockholders will be purchased, the
defendants have breached their fiduciary duties or aided and abetted such
breaches by allegedly engaging in unfair dealing, acting in their own interests
and failing to obtain the highest possible price for the Company's stockholders.
The complaint seeks, inter alia, (i) to have the consummation of the Merger
enjoined and a committee of class members appointed to provide input into the
procedures to be followed in connection with any such transaction and (ii)
certain other declaratory relief and damages. Although plaintiff filed a motion
to expedite discovery, he has made no further attempt to have the proceedings
expedited. The Company has received notice
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<PAGE>
from Andrews Group that Andrews Group has terminated its Stock Acquisition
Agreement with Marvel and, accordingly, a condition to the obligations of
Andrews Group and Acquisition to consummate the Merger pursuant to the Merger
Agreement will not be satisfied. Andrews Group further advised the Company that
Andrews Group does not intend to waive such condition and anticipates that the
Merger will not be consummated. The Company therefore believes that the basis
of this complaint has become moot. See "Item 1. Business - Possible Change of
Control."
The Company is involved in various legal proceedings arising in the normal
course of business. The Company believes that the final outcome of these
proceedings will not have a material adverse effect on the Company's results of
operations or financial position.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matter was submitted to a vote of the Company's stockholders during the
fourth quarter of the fiscal year covered by this report.
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
The following table sets forth, for each fiscal quarter indicated, the high
and low prices for the Company's Class A Common Stock as reported in the New
York Stock Exchange Composite Transaction Tape. Regular-Way trading in the
Class A Common Stock commenced on the New York Stock Exchange on February 23,
1995.
<TABLE>
<CAPTION>
FISCAL YEAR HIGH LOW
- --------------------- -------- --------
<S> <C> <C>
1995
First Quarter $21 1/8 $18 5/8
Second Quarter $20 1/4 $16 3/8
Third Quarter $26 1/4 $18
Fourth Quarter $25 1/8 $20 1/4
1996
First Quarter $24 3/4 $17 7/8
Second Quarter $22 3/8 $17 5/8
Third Quarter $20 1/4 $14
Fourth Quarter $19 7/8 $17
</TABLE>
As of March 28, 1997, there were 85 holders of record of the Company's
Class A Common Stock.
The Company has not declared any dividends. For a description of certain
restrictions on payment of dividends, see Note 7 to the December 31, 1996
Consolidated Financial Statements included elsewhere in this Report.
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<PAGE>
ITEM 6. SELECTED FINANCIAL DATA
The following table presents selected combined or consolidated financial
data for the business of the Company and the Predecessor Company for the five
year period ended December 31, 1996 which were derived from audited financial
statements of the Company's business.
The Company has not paid dividends on its capital stock during any of
the periods presented below.
<TABLE>
<CAPTION>
Predecessor Company
-------------------
Four Eight
Year Months Months Year Ended
Ended Ended Ended ----------------------------
Dec. Apr. Dec. Dec. Dec. Dec.
31, 30, 31, 31, 31, 31,
1992 1993 1993 1994 1995 1996
------- -------- ------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
Statement of Operations
Data: (1) (2)
Net Sales........................... $57,934 $10,175 $79,569 $156,525 $196,395 $221,624
Operating income (loss)............. 2,654 ( 1,611) 6,266 32,072 47,014 27,215
Net income (loss) (3)............... 888 ( 1,110) 3,488 18,014 28,402 16,687
Net income (loss) per
common share (3)(4).............. 0.03 ( 0.04) 0.13 0.67 1.05 0.61
At December 31:
Balance Sheet Data:
Working capital..................... ( 844) 24,780 39,839 85,174 102,192
Total assets........................ 28,852 56,877 104,723 152,218 171,732
Borrowings under credit
facility......................... -- 4,500 21,500 -- --
Due to stockholders and
affiliated companies............. 13,407 15,746 16,845 -- --
Redeemable preferred
stock............................ -- -- -- 3,016 1,681
Stockholders' equity................ 2,384 16,283 38,416 111,332 137,455
</TABLE>
(1) The year ended December 31, 1992 and the four month period ended April 30,
1993 represent the combined results of the business of the Company, which
was then wholly owned by Mr. Perlmutter, and Toy Biz International Ltd., a
Hong Kong company indirectly controlled by the Predecessor Company. These
operations are referred to as the Predecessor Company results. The eight
month period ended December 31, 1993 and the years ended December 31, 1994,
1995 and 1996 represent the consolidated results of the Company. There was
no change in the carrying value of the Company's assets or liabilities as a
result of the April 30, 1993 transaction (see Note 1 of notes to audited
financial statements).
(2) The four month period ended April 30, 1993 includes the five months of
results of Toy Biz International Ltd. as a result of changing Toy Biz
International Ltd's fiscal year end from November 30 to December 31. The
sales and operating loss of Toy Biz International Ltd. for the month of
December 1992 were not significant.
(3) For the taxable periods from January 1, 1992 until April 30, 1993, the
Predecessor Company was subject to taxation under Subchapter S of the
Internal Revenue code of 1986, as amended. As a result, the Predecessor
Company was not subject to Federal and certain state income taxes as its
sole stockholder included the results of its operations in his personal
income for these tax purposes. Provision for income taxes for the
aforementioned periods reflects income
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<PAGE>
tax (expense) benefit (at an assumed effective combined tax rate of 40%) on
a pro forma basis as if the Predecessor Company had not been an S
corporation.
(4) Assumes 27,000 common and common equivalent shares outstanding for periods
prior to 1995.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
The following discussion and analysis of the financial condition and
results of operations of the Company and its subsidiaries should be read in
conjunction with the Consolidated Financial Statements and the Notes thereto,
included elsewhere in this Report.
OVERVIEW
The Company designs, markets and distributes in the United States and
internationally new and traditional toys in the boys', girls', preschool, and
activity toy categories featuring major entertainment and consumer brand name
properties. The Company also designs, markets and distributes its own line of
proprietary toys.
RESULTS OF OPERATIONS
YEARS ENDED DECEMBER 31, 1996 AND 1995
The Company's net sales increased 12.8% to approximately $221.6 million
from approximately $196.4 million in 1995.
Domestic net sales of boys' toys decreased 27% from approximately $105.5
million in 1995 to $76.5 million in 1996 due primarily to decreased sales of the
X-Men(R), Fantastic Four(TM) and Iron Man(R) product lines. International net
sales of boys' toys more than doubled from approximately $16.4 million in 1995
to approximately $39.6 million in 1996. Domestic net sales of girls' toys
increased 54% from approximately $37.7 million in 1995 to approximately $57.9
million in 1996 due mainly to the introduction of Take Care of Me Twins(TM)
doll, as well as the expansion of the Baby Tumbles Surprise(TM) category in
1996. Sales in the activity toy category increased 72% from approximately $15.5
million in domestic net sales in 1995 to approximately $26.6 million in 1996 due
to the introduction of the multi-activity game tables and the full-year effect
of kite sales from the Spectra Star(R) acquisition, which only had four months
of sales included in the 1995 year. The preschool category decreased 32% from
approximately $13.5 million in domestic net sales in 1995 to approximately $9.2
million in 1996. International net sales more than doubled from approximately
$20.6 million in 1995 to approximately $45.0 million in 1996, due to the
continued expansion of the Company's product offerings overseas. Distribution
agreement fees and sub-licensing revenues more than doubled from approximately
$5.7 million in 1995 to approximately $13.6 million in 1996.
Gross profit decreased 3% to approximately $105.2 million in 1996 from
approximately $108.0 million in 1995. Gross profit as percentage of net sales
("gross margin") decreased from approximately 55% in 1995 to approximately 47%
in 1996 due primarily to changes in the Company's product mix, additional sales
allowances and the effect of a higher percentage of international sales, which
typically have a lower gross margin than domestic sales.
Selling, general and administrative expenses increased 28% to approximately
$61.9 million (approximately 28% of net sales) in 1996 from approximately $48.2
million (approximately 25% of net sales) in 1995. The increase of approximately
$13.7 million was due to increased advertising and miscellaneous selling and
administrative expenses, which increased as a result of sales growth, and
additional salaries attributable to the Company's expanded product lines, as
well as the effect of a full year of the Spectra Star(R) operations in 1996.
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<PAGE>
Depreciation and amortization expense increased to approximately $16.1
million in 1996 from approximately $12.8 million in 1995. This increase was
primarily attributable to increased amortization of product tooling costs
resulting from increased investment in product and package design costs and
molds, tools and equipment to support the Company's expanded product line.
Depreciation and amortization expense as a percentage of net sales increased
from 6.5% in 1995 to 7.2% in 1996. This increase in depreciation expense as a
percentage of net sales was primarily attributable to a changing product mix and
decreased unit sales of boys' toys assortments.
Interest income, net of interest expense, increased 6.43% to $596,000 in
1996 from $560,000 in 1995.
As a result of the above, net income decreased 41% to approximately $16.7
million in 1996 from approximately $28.4 million in 1995.
The Company believes its sales and business were adversely affected in 1996
by concerns among retailers as to the impact of the Marvel bankruptcy. While the
Company is attempting to address these concerns, to the extent they are not
alleviated, it can be expected that they will continue to adversely affect
demand for the Company's products.
YEARS ENDED DECEMBER 31, 1995 AND 1994
The Company's net sales increased 25% to approximately $196.4 million for
1995 from approximately $156.5 million in 1994.
Domestic net sales of boys' toys decreased 4% from approximately $110.4
million in 1994 to approximately $105.5 million in 1995. International net
sales of boys' toys increased 49% from approximately $11.0 million in 1994 to
approximately $16.4 million in 1995. Domestic net sales of girls' toys nearly
tripled from approximately $12.7 million in 1994 to approximately $37.7 million
in 1995, due mainly to the introduction of Baby Tumbles Surprise(TM), Baby
Looks So Real(TM) and Pooch the Good Puppy(TM) in 1995, offset by a decrease in
sales of Jumpsie(R) and Caboodles(R) products from 1994 to 1995. The
infant/preschool category increased 85% from approximately $7.3 million in
domestic net sales in 1994 to approximately $13.5 million in 1995, due to the
continued expansion of the Company's infant/preschool line. Sales in the
activity toy category more than doubled from approximately $6.1 million in
domestic net sales in 1994 to approximately $15.5 million in 1995 due to the
introduction of the Wild & Wacky Painter(TM) and, to a lesser extent, the
initial sales of interactive CD-ROM products and kites. International net sales
increased 49% from approximately $13.8 million in 1994 to approximately $20.6
million in 1995, due to the expansion of the Company's product offerings
overseas.
Gross profit increased 30% to approximately $108.0 million in 1995 from
approximately $83.0 million in 1994. Gross profit as a percentage of net sales
increased from approximately 53% in 1994 to approximately 55% in 1995 due
primarily to additional sub-licensing revenues in 1995.
Selling, general and administrative expenses increased 26% to approximately
$48.2 million (approximately 25% of net sales) in 1995 from approximately $38.3
million (approximately 24% of net sales) in 1994. The increase of approximately
$10.0 million was due to increased advertising, royalties and miscellaneous
selling and administrative expenses, which increased as a result of sales
growth, and additional salaries and consulting expense attributable to the
Company's expanded product lines.
Depreciation and amortization expense increased to approximately $12.8
million in 1995 from approximately $8.6 million in 1994. This increase was
primarily attributable to increased amortization of product tooling costs
resulting from increased investment in product tooling to support the Company's
expanded product line.
The Company recognized approximately $4.1 million in 1994 as a non-
recurring non-cash compensation expense related to the vesting and exercise of a
compensatory stock option granted to Mr. Arad (the "Arad Stock Option") in
connection with the formation of the Company.
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<PAGE>
Interest (income) expense, net was ($560,000) for 1995 and approximately
$1.8 million for 1994. The net increase of ($2.4 million) was due primarily to
decreased borrowings and the temporary investment of cash raised in the
Company's initial public offering and generated from operating activities.
As a result of the above, net income increased 58% to approximately $28.4
million in 1995 from approximately $18.0 million in 1994.
BACKLOG
Customer open orders were approximately $6.5 million on December 31, 1995
and $7.8 million on December 31, 1996. The Company believes that this increase
in open orders resulted from several causes, including the diversification of
the Company's product base.
LIQUIDITY AND CAPITAL RESOURCES
The Company's operating activities (used) or provided net cash of
approximately ($1.5 million), $35.5 million, and ($1.2 million) in 1994, 1995
and 1996, respectively. The decline in cash flow from operating activities is
due principally to a slow down in the collection of receivables.
Cash used in investing activities in 1994, 1995 and 1996 was approximately
$17.2 million, $25.1 million, and $23.6 million, respectively and consisted of
capital expenditures for molds, tools and equipment for the production of new
products, as well as capitalized product and package design expenditures. In
1995, approximately $9.0 million cash was used for the acquisition of Spectra
Star(R) and Quest.
Cash provided by financing activities in 1994, 1995 and 1996 was
approximately $18.1 million, $8.0 million and $8.3 million, respectively. In
1994, cash provided by financing activities comprised principally of net
borrowings under the Credit Facility (defined below). In 1995, cash provided by
financing activities consisted principally of net proceeds from the initial
public offering of $44.1 million, offset by repayments of notes to the
stockholders, which totalled approximately $15.1 million, and by repayments of
funds previously borrowed under the Credit Facility with the balance used for
working capital and general corporate purposes. In 1996, cash provided by
financing activities consisted principally of approximately $9.3 million in net
proceeds from an additional public offering Class A Common Stock completed in
August 1996, offset by the redemption of preferred stock issued in connection
with the Spectra Star(R) acquisition, with the balance used for working capital
and general corporate purposes.
In March 1995, the Company entered into a three year $30 million revolving
line of credit (the "Credit Facility") with a syndicate of banks for which The
Chase Manhattan Bank (formerly named Chemical Bank) serves as administrative
agent. Substantially all of the assets of the Company were pledged to secure
borrowings under the Credit Facility. Borrowings under the Credit Facility bear
interest at either The Chase Manhattan Bank's alternate base rate or at the
Eurodollar rate plus the applicable margin. The applicable margin is 3/4 of 1%
to 1% to be determined based upon the Company's financial performance. The
Credit Facility requires the Company to pay a commitment fee of 3/8 of 1% per
annum on the average daily unused portion of the Credit Facility. The Company
had no outstanding indebtedness under the line of credit as of March 3, 1997.
The Credit Facility, as amended, contains various financial covenants, as
well as restrictions, on new indebtedness, prepaying or amending subordinated
debt, acquisitions and similar investments, the sale or transfer of assets,
capital expenditures, limitations on restricted payments, dividends, issuing
guarantees and creating liens. The Credit Facility also requires an annual
reduction, commencing January 1, 1996, of outstanding borrowings to zero for a
period of 45 consecutive days commencing during the first six months of the
calendar year. In addition, the Credit Facility also requires that (a) Marvel
continue to control the Company and (b) the toy license agreement between the
Company and Marvel remain in effect. The Credit Facility is not guaranteed by
Marvel. Proceedings in the Marvel bankruptcy could result in a change of
control in the Company which could cause the Credit Facility
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<PAGE>
to be terminated. If such an event occurred, the Company could seek a waiver of
the foregoing provisions and believes it could obtain a replacement credit
facility if a termination of the Credit Facility were to occur.
Certain indebtedness of Marvel and Marvel's direct and indirect parent
companies impose restrictions that limit the ability of Marvel and its
subsidiaries, including the Company, to incur debt, make restricted payments,
enter into transactions with affiliates and sell or transfer assets.
For a description of the Spectra Star(R) acquisition in September 1995, see
"Note 12 to the December 31, 1996 Consolidated Financial Statements included
elsewhere in this Report."
The approximately $9.1 million net proceeds to the Company from the August
1996 public offering was intended to fund the working capital of the Company and
a portion of the Company's capital commitment to Marvel Studios, the Company's
proposed joint venture with Marvel. At this time, the Company has no plans to
invest a material amount of funds in Marvel Studios in the short term, and
before the Company makes any material investment in Marvel Studios, the Company
intends to assess the developments in Marvel's bankruptcy proceeding.
The Company has commenced construction of a new manufacturing facility in
Mexico in order to expand manufacturing capacity for the Spectra Star(R) product
line, and expects that expenditures to complete such facility will amount to
approximately $3 million.
The Company has authorized the repurchase of up to three million shares of
Class A Common Stock. The repurchase program requires the consent of Marvel
Characters, Inc. a subsidiary of Marvel, which has announced that it will seek
approval of the bankruptcy court for such consent and the consent of the lenders
under the Credit Facility. See "Item 1. Business--Possible Change of Control."
The Company believes that it has sufficient funds available from cash and
cash equivalents operating activities and borrowings under the Credit Facility
to meet peak working capital needs and capital expenditure requirements. During
1996, the maximum amount outstanding under the Credit Facility was $4,000,000.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The financial statements required by this item, the report of the
independent accountants thereon and the related financial statement schedule
required by Item 14(a)(2) appear on pages F-2 to F-20. See the accompanying
Index to Financial Statements and Financial Statement Schedule on page F-1. The
supplementary financial data required by Item 302 of Regulation S-K appears in
Note 10 to the December 31, 1996 Consolidated Financial Statements.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS
ON ACCOUNTING AND FINANCIAL DISCLOSURE
Not applicable.
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<PAGE>
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
EXECUTIVE OFFICERS AND DIRECTORS
The executive officers and Directors of the Company, their ages as of March
28, 1997 and their positions with the Company are as follows:
<TABLE>
<CAPTION>
NAME AGE POSITION
- ---- --- --------
<S> <C> <C>
Joseph M. Ahearn....... 41 President, Chief Executive Officer and Director
Daniel J. Werther...... 35 Executive Vice President, Senior Legal Officer and Secretary
Andrew R. Gatto........ 48 Executive Vice President, Marketing
David J. Fremed........ 36 Chief Financial Officer and Treasurer
Alan Fine.............. 46 Chief Operating Officer
Avi Arad............... 48 Director
William C. Bevins...... 49 Director
Donald G. Drapkin...... 48 Director
James F. Halpin........ 46 Director
Bobby G. Jenkins....... 35 Director
Ronald O. Perelman..... 53 Director
Isaac Perlmutter....... 53 Director
Alfred A. Piergallini 49 Director
Terry C. Stewart....... 50 Director
Paul R. Verkuil........ 56 Director
</TABLE>
DIRECTORS
The name, principal occupation for the last five years, selected
biographical information and period of service as a director of the Company of
each director are set forth below. Pursuant to a stockholders' agreement
discussed below, Messrs. Perelman, Bevins, Drapkin, Stewart, Jenkins, Halpin,
Piergallini and Verkuil are the designees of Marvel Characters, Messrs.
Perlmutter and Ahearn are the designees of Mr. Perlmutter and Mr. Arad is the
designee of Mr. Arad. See "Item 13. Certain Relationships and Related
Transactions."
Joseph M. Ahearn has served as Chief Executive Officer and a Director of
the Company since April 1993 and as President of the Company since November
1994. From January 1990 to April 1993, Mr. Ahearn served initially as a
consultant to, and after April 1990, as an executive officer and director of the
Company's predecessor company. During such period, he served as a consultant to
other businesses affiliated with Mr. Perlmutter. From 1987 to August 1991, Mr.
Ahearn was a principal of GDL, a corporation that provides management advice and
assistance to financially distressed companies. From August 1988 to August
1991, Mr. Ahearn, in his capacity as a principal of GDL, served as Chief
Operating Officer of Coleco Industries, Inc. and as a director or officer of
various other businesses that were the subject of bankruptcy proceedings. From
1981 to 1987, Mr. Ahearn was employed by Touche Ross & Co., attaining the
position of senior manager. From 1976 to 1980, Mr. Ahearn served in both the
audit and consulting departments of Arthur Andersen & Co.
Avi Arad has served as a Director of and consultant to the Company since
April 1993. Mr. Arad has been the President and Chief Executive Officer of New
World Animation, a media production company under common control with Marvel,
since April 1993 where he has served as the Executive Producer of the X-Men(R)
and the Spider-Man(R) animated TV series currently carried on the Fox Children's
Network and the Fantastic Four(TM) and Iron
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<PAGE>
Man(R) animated syndicated programs. Mr. Arad has been a toy inventor and
designer for more than 20 years for major toy companies including Mattel Inc.,
Hasbro, Inc. and Tyco Toys, Inc. During his career, Mr. Arad has designed or
co-designed more than 160 toys. Mr. Arad is also the owner of Avi Arad &
Associates, a firm engaged in the design and development of toys and the
production and distribution of television programs and is a beneficial owner in
Classic Heroes, Inc.
William C. Bevins has been a Director of the Company since April 1993. Mr.
Bevins has been a director of Marvel since 1989 and was Chief Executive Officer
of Marvel from 1991 until 1996. Mr. Bevins has been Chief Executive Officer of
Andrews Group since 1988 and Executive Vice President of MacAndrews Holdings
since 1988. Mr. Bevins also is a director of Andrews Group, Marvel Holdings,
Marvel Parent and Marvel III. Mr. Bevins was a director and Chief Financial &
Administrative Officer of Turner Broadcasting System, Inc. for more than five
years prior to 1988. On December 27, 1996, Marvel Holdings, Marvel Parent,
Marvel III, Marvel and several of its subsidiaries filed voluntary petitions for
reorganization under Chapter 11 of the U.S. Bankruptcy Code.
Donald G. Drapkin has been a Director of the Company since April 1993. Mr.
Drapkin has been a director of Marvel since 1991. He has been Vice Chairman and
a director of MacAndrews & Forbes and Vice Chairman of various of its affiliates
since 1987. Mr. Drapkin also is a director of the following corporations which
file reports pursuant to the Exchange Act: Andrews Group, Coleman Company, Inc.
("Coleman"), Coleman Holdings Inc. ("Coleman Holdings"), Coleman Worldwide
Corporation ("Coleman Worldwide"), Consolidated Cigar Holdings, Inc.
("Consolidated Cigar"), Consolidated Cigar Corporation, Marvel, Marvel
Holdings, Marvel Parent, Marvel III, Revlon Inc. ("Revlon"), Revlon Consumer
Products Corporation ("Revlon Products"), Revlon Worldwide Corporation ("Revlon
Worldwide"), Algos Pharmaceutical Corporation and VIMRx Pharmaceuticals Inc. Mr.
Drapkin was a partner at the law firm of Skadden, Arps, Slate, Meagher & Flom
for more than five years prior to March 1987. On December 27, 1996, Marvel
Holdings, Marvel Parent, Marvel III, Marvel and several of its subsidiaries
filed voluntary petitions for reorganization under Chapter 11 of the U.S.
Bankruptcy Code.
James F. Halpin has served as a Director of the Company since March 1995.
Mr. Halpin has been President, Chief Operating Officer and a director of CompUSA
Inc., a retailer of computer hardware, software, accessories and related
products, since May 1993 and Chief Executive Officer of CompUSA, Inc. since
December 1993. From 1990 to November 1992, Mr. Halpin was President of
Homebase, a home center warehouse retailer. From 1988 to 1990, Mr. Halpin was
President of BJ's Wholesale Club, a chain of club retail stores. Mr. Halpin
also served as Executive Vice President of Waban Inc., the parent of Homebase
and BJ's Wholesale Club, from 1988 to May 1993.
Bobby G. Jenkins has served as Director of the Company since March 1995.
Mr. Jenkins served as Chief Financial Officer and Treasurer of the Company from
March, 1995 through October, 1996. Mr. Jenkins has been Executive Vice President
and Chief Financial Officer of Marvel since December 1993. From 1992 until he
joined Marvel, Mr. Jenkins was Assistant Vice President-Finance of Turner
Broadcasting System, Inc., and, for more than five years prior thereto, he was
associated with Price Waterhouse, where he last served as Senior Audit Manager.
On December 27, 1996, Marvel and several of its subsidiaries filed voluntary
petitions for reorganization under Chapter 11 of the U.S. Bankruptcy Code.
Ronald O. Perelman has been a Director of the Company since March 1995, and
he served as Chairman of the Board of Directors until March, 1997. Mr. Perelman
has been Chairman of the Board and Chief Executive Officer of MacAndrews &
Forbes and various affiliates since 1980. Mr. Perelman is Chairman of the Board
of Andrews Group, Consolidated Cigar, Mafco Consolidated Group Inc. ("Mafco
Consolidated"), Meridian Sports Incorporated ("Meridian"), and Power Control
Technologies Inc. ("PCT") and is Chairman of the Executive Committee of Coleman,
Revlon, Revlon Products and Marvel. Mr. Perelman is a director of the following
corporations which file reports pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act"): Andrews Group, Coleman, Coleman Holdings,
Coleman Worldwide, Consolidated Cigar,
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<PAGE>
Consolidated Cigar Corporation ("Cigar Corp."), California Federal Bank, A
Federal Savings Bank, First Nationwide Holdings Inc., First Nationwide (Parent)
Holdings Inc., Marvel, Marvel Holdings, Marvel Parent, Marvel III, Meridian,
PCT, Preumo Abex Corporation, Revlon, Revlon Products and Revlon Worldwide. On
December 27, 1996, Marvel Holdings, Marvel Parent, Marvel III, Marvel and
several of its subsidiaries filed voluntary petitions for reorganization under
Chapter 11 of the U.S. Bankruptcy Code.
Isaac Perlmutter has served as a Director of the Company since April 1993
and he served as Chairman of the Board of Directors until March 1995. Mr.
Perlmutter purchased the Company's predecessor company from Charan Industries,
Inc. in January 1990. Mr. Perlmutter is actively involved in the management of
the affairs of the Company and has been an independent financial investor for
more than the past five years. As an independent investor Mr. Perlmutter
currently has, or has had within the past five years, controlling ownership
interests in Remington Products Company, Westwood Industries, Inc., a
manufacturer and distributor of table and floor lamps, Job Lot Incorporated (and
its predecessor Job Lot Associates L.P.) ("Job Lot"), a discount oriented retail
chain, Tangible Media, Inc. ("Tangible Media"), a media buying and barter
advertising agency, and REC Sound Incorporated, a distributor of licensed
novelty electronics, and is also the majority stockholder of Classic Heroes,
Inc., a distributor of apparel manufactured under licenses from Marvel and
others.
Alfred A. Piergallini has served as a Director of the Company since March
1995. Mr. Piergallini has been a director of Gerber since 1989, Chairman of the
Board and Chief Executive Officer of Gerber since January 1990 and President of
Gerber since January 1993. Mr. Piergallini also served as President of Gerber
from January 1990 to May 1992. Mr. Piergallini is also a director of Comerica,
Incorporated, a financial services holding company. From February 1986 to April
1989, Mr. Piergallini was a Senior Vice President of The Carnation Company.
Terry C. Stewart has been a Director of the Company since April 1993. Mr.
Stewart has been a Director of Marvel since 1991 and an Executive Vice President
of Marvel since March 1996. Mr. Stewart joined Marvel in 1989 as Executive Vice
President, Development and served as President and Chief Operating Officer from
September 1990 to July 1994, Vice Chairman from March 1995 to December 1995 and
President and Chief Operating Officer, Marvel Comics from July 1994 until March
1996. From 1984 to 1989, Mr. Stewart was Vice President-Business Development at
Combustion Engineering. On December 27, 1996, Marvel and several of its
subsidiaries filed voluntary petitions for reorganization under Chapter 11 of
the U.S. Bankruptcy Code.
Paul R. Verkuil is an attorney-at-law and Dean of the Cardozo Law School,
Yeshiva University. Mr. Verkuil served as President of the College of William
and Mary from 1985 to 1992. He has been on the faculty of the Columbia Law
School as an Adjunct Professor and on the faculty of the University of
Pennsylvania as a Visiting Professor from January 1995 to December 1995. Mr.
Verkuil served as Dean of Tulane Law School from 1978 to 1985. Mr. Verkuil also
served as the President and Chief Executive officer of the American Automobile
Association from January 1992 to December 1994. Mr. Verkuil is a director of
Universal Health Services, Inc. and previously served as a director of
NationsBank of Florida from 1992 to 1995 and of Florida Progress Corporation
from 1993 to 1995.
EXECUTIVE OFFICERS
The following sets forth the positions held with the Company and selected
biographical information for the executive officers of the Company who are not
Directors.
Daniel J. Werther (35) has served as Executive Vice President, Senior Legal
Officer and Secretary of the Company since April 1993. Mr. Werther has also
served as Senior Vice President of Andrews Group since February 1993. From
April 1991 to February 1993, Mr. Werther was a senior associate in the law firm
of Klehr, Harrison, Harvey, Branzburg & Ellers in Philadelphia, Pennsylvania.
Prior to that time, Mr. Werther was an associate in the law firm of Obermayer,
Rebmann, Maxwell & Hippel in Philadelphia, Pennsylvania.
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<PAGE>
Andrew R. Gatto (49) has served as Executive Vice President - Marketing
since July 1995. Prior to joining the Company, Mr. Gatto served as the
President of the Buddy-L Toys Division of SLM Inc. from December 1994 through
July 1995, having been hired as work out specialist while such firm was the
subject of bankruptcy proceedings. From June 1990 through November 1994, he
served as a consultant to and later as President of Play-Tech, Inc., a
manufacturer of learning aid toys. Prior thereto, Mr. Gatto served as Executive
Vice President of Universal Match Box Group, Ltd., a toy manufacturer.
Alan Fine (46) has served as the Chief Operating Officer of the Company
since September 1996. From June 1996 to September 1996, Mr. Fine was the
President and Chief Operating Officer of Toy Biz International Ltd. From May
1995 to May 1996, Mr. Fine was the President and Chief Operating Officer of Kay-
Bee Toys, a national toy retailer, and from December 1989 to May 1995, he was
the Senior Vice President General Merchandise Manager of Kay-Bee Toys.
David J. Fremed (36) has served as the Chief Financial Officer and
Treasurer of the Company since October 1996 and Vice President/Controller of the
Company since 1990.
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<PAGE>
ITEM 11. EXECUTIVE COMPENSATION
The following table sets forth information for the years indicated
concerning the compensation awarded to, earned by or paid to the Chief Executive
Officer of the Company and the four most highly paid executive officers earning
over $100,000, other than the Chief Executive Officer, who served as executive
officers of the Company as of December 31, 1996 (the "Named Executive
Officers"), for services rendered in all capacities to the Company and its
subsidiaries during such period.
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
LONG TERM
ANNUAL COMPENSATION COMPENSATION
- ------------------------------------------------------------------------------------------
SECURITIES UNDERLYING
NAME AND PRINCIPAL POSITION YEAR SALARY($) BONUS($) OPTIONS(#)
- --------------------------- ---- --------- -------- ---------------------
<S> <C> <C> <C> <C>
Joseph M. Ahearn 1996 $350,000 $150,000 --
President and Chief Executive 1995 350,000 -- 280,000(1)
Officer 1994 300,000 -- --
Daniel J. Werther 1996 300,000 25,000 --
Executive Vice President and 1995 252,000 25,000 75,000
Senior Legal Officer 1994 220,830 25,000 --
Andrew R. Gatto(2) 1996 275,000 50,000 --
Executive Vice President - 1995 126,923 30,000 30,000
Marketing -- -- -- --
Alan Fine(3) 1996 253,846 117,858 30,000
Chief Operating Officer -- -- -- --
-- -- -- --
David J. Fremed 1996 140,000 25,000 --
Chief Financial Officer -- -- -- --
-- -- -- --
</TABLE>
_____________________________
(1) Includes options for 250,000 shares granted in March 1995 after
consummation of the Company's IPO and options for 30,000 shares granted in
December 1995 in lieu of $150,000 non-discretionary cash bonus payable
pursuant to the terms of Mr. Ahearn's employment agreement with the
Company.
(2) Mr. Gatto commenced employment with the Company in July 1995.
(3) Mr. Fine commenced employment with the Company in May 1996.
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<PAGE>
STOCK OPTION PLAN
The following table sets forth stock options issued in 1996 to the
executive officers named in the Summary Compensation Table. The table also sets
forth the hypothetical gains that would exist for the stock options at the end
of their ten year terms, assuming compound rates of appreciation of 5% and 10%.
The actual future value of the options will depend on the market value of the
Company's Class A Common Stock.
OPTION/SAR GRANTS IN LAST FISCAL YEAR
<TABLE>
<CAPTION>
Potential Realizable Value at
Assumed Annual Rates of
Stock Price Appreciation for
Individual Grants Option Term(2)
- ------------------------------------------------------------------- ------------------------------
(a) (b) (c) (d) (e) (f) (g)
Number of
Securities
Underlying % of Total
Options/ Option/SARs Exercise
SARs Granted to or Base
Granted Employees in Price Expiration
Name (#)(1) Fiscal Year ($/Sh) Date 5% ($) 10% ($)
- ----------- ---------- ------------ -------- ---------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
Alan Fine 30,000 15.4% 15.00 8/16/06 $283,003 $717,184
</TABLE>
- ---------------
1/ Represents shares underlying stock options; none of the executive officers
were granted SARs. One-third of the options become exercisable on the date
of grant and the balance becomes exercisable in equal increments on the
first and second anniversaries of the date of grant.
2/ The amounts of potential realizable value, which are based on assumed
appreciation rates of 5% and 10% prescribed by Securities and Exchange
Commission ("SEC") rules, are not intended to forecast possible future
appreciation, if any, of the Company's stock price. The amounts of
potential value with respect to the options do not account for expiration
of the options upon termination of employment or the phased-in exercise
schedule. Future compensation resulting from the options is based solely
on the actual performance of the Company's stock price in the trading
market.
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<PAGE>
The following chart shows the 1996 year-end value of the stock options held
by the Named Executive Officers. None of the Named Executive Officers exercised
stock options during 1996.
YEAR END 1996 OPTION/SAR VALUES
<TABLE>
<CAPTION>
Number of Securities Value of Unexercised
Underlying Unexercised In-the-
Options/SARs at Year Money Options/SARs at
End #(1) Year End (2)
-------------------------- ----------------------------
Name Exercisable Unexercisable Exercisable Unexercisable
- ---- ----------- ------------- ------------ --------------
<S> <C> <C> <C> <C>
Joseph M. Ahearn 186,666 93,334 $249,999 $125,001
Daniel J. Werther 50,000 25,000 75,000 37,500
Andrew R. Gatto 20,000 10,000 20,000 10,000
Alan Fine 10,000 20,000 45,000 90,000
David J. Fremed 20,000 10,000 30,000 15,000
</TABLE>
- -------------
(1) Represents shares underlying stock options; none of the executive officers
hold SARs.
(2) Amounts shown represent the market value of the underlying Class A Common
Stock at year end calculated using the December 31, 1996, New York Stock
Exchange (the "NYSE") closing price per share of Class A Common Stock of
$19.50 minus the exercise price of the stock option. The actual value, if
any, an executive may realize is dependent upon the amount by which the
market price of Common Stock exceeds the exercise price when the stock
options are exercised. The actual value realized may be greater or less
than the value shown in the table.
EMPLOYMENT AGREEMENTS
The Company is a party to an employment agreement with each of Joseph M.
Ahearn, Andrew R. Gatto and Alan Fine which govern, respectively, Mr. Ahearn's
employment as President and Chief Executive Officer, Mr. Gatto's employment as
Executive Vice President - Marketing and Mr. Fine's employment as Chief
Operating Officer.
Pursuant to the employment agreements, Messrs. Ahearn and Gatto have agreed
to render their exclusive and full-time services to the Company for terms of
employment expiring on December 31, 1997 and Mr. Fine has agreed to render his
exclusive and full time services to the Company for a term of employment
expiring on December 31, 1999. However, Mr. Ahearn may from time to time
participate in business activities not competitive with the Company, provided
such activities do not involve more than 60 hours in any twelve month period.
Under their agreements, Messrs. Ahearn, Gatto and Fine earn base salaries,
subject to discretionary increases, of $350,000, $275,000 and $400,000,
respectively. Messrs Ahearn and Gatto are entitled to annual non-discretionary
bonuses of $150,000 and $50,000, respectively. Mr. Fine is entitled to an
annual non-discretionary bonus based on a formula for FOB sales. The employment
agreements further provide for the payment of discretionary bonuses and
participation in the Company's Stock Option Plan as determined by the Board of
Directors. Messrs. Ahearn,
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<PAGE>
Gatto and Fine also receive $1,000 monthly automobile allowances and are
entitled to participate in employee benefit plans generally available to the
Company's employees.
Each of the employment agreements provides that, in the event of
termination other than for cause, the employee is entitled to his salary and car
allowance earned through the date of termination and thereafter for a period up
to twelve months. All three officers are also entitled to the pro rata portion
of their annual bonuses earned through the date of termination.
Each of the employment agreements prohibits disclosure of proprietary and
confidential information regarding the Company and its business to anyone
outside the Company both during and subsequent to employment and otherwise
provides that all inventions made by the employees during their employment
belong to the Company. In addition, the employees have agreed during their
employment, and for one year thereafter, not to engage in any competitive
business activity.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information, as of March 28, 1997,
with respect to the shares of Common Stock beneficially owned by (a) each person
known by the Company to be the beneficial owner of 5% or more of the outstanding
Common Stock, (b) each Director of the Company and (c) all Directors and
executive officers of the Company as a group, and as adjusted at that date to
reflect the sale of the shares of Common Stock offered hereby:
<TABLE>
<CAPTION>
Class A Common Stock Class B Common Stock
------------------------- --------------------------
Number of Shares Number of Shares
Beneficially Owned Beneficially Owned
Five Percent Stockholders, ------------------------- -------------------------- Percent of
Directors and Percent of Percent of Total Voting
Executive Officers Number Class Number Class Power
- ---------------------------------- ---------- ----------- -------------- ---------- -----------
<S> <C> <C> <C> <C> <C>
Marvel Characters, Inc.(1)......... 7,394,000 26.6% 7,394,000(2) 100% 78.4%
c/o Marvel Entertainment
Group, Inc.
387 Park Avenue South
New York, New York 10016
Avi Arad (3)....................... 4,150,000 20.4% 1(4) 4.4%
1698 Post Road East
Westport, Connecticut 06880
Isaac Perlmutter (5)............... 9,506,000 46.7% 1(6) 10.1%
P.O. Box 1028
Lake Worth, Florida 33460-1028
Joseph M. Ahearn (7)............... 270,100 * 0 *
David J. Fremed (8)................ 30,000 * 0 *
William C. Bevins.................. 10,000 * 0 *
Donald G. Drapkin (9).............. 12,000 * 0 *
Terry C. Stewart................... 1,000 * 0 *
Bobby G. Jenkins (8)............... 50,000 * 0 *
James F. Halpin.................... 5,000 * 0 *
Alfred A. Piergallini.............. 4,000 * 0 *
Paul R. Verkuil.................... 2,000 * 0 *
Andrew R. Gatto (8)................ 20,000 * 0 *
Daniel J. Werther (8).............. 75,000 * 0 *
</TABLE>
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<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C>
Alan Fine (8)...................... 10,000 * 0 *
All executive officers and
Directors as a group
(15 persons)(10)................. 21,539,100 * 7,394,000(8) 93.0%*
</TABLE>
- --------------------------
* Less than 1%.
(1) Represents shares of Class A Common Stock issuable upon the conversion of
Class B Common Stock owned by Marvel Characters, Inc., a wholly owned
subsidiary of Marvel Entertainment Group, Inc. Does not include 13,656,000
shares which Andrews Group has the right to acquire pursuant to the Stock
Purchase Agreements. See "Item 13. Certain Relationships and Related
Transactions - the Stock Purchase Agreements." At December 31, 1996,
Marvel had 101,809,657 shares of common stock outstanding, of which
82,628,392 shares were owned of record by Marvel Holdings and Marvel
(Parent) and certain other indirect, wholly owned subsidiaries of Mafco
Holdings, which is wholly owned of record by Ronald O. Perelman. At
December 31, 1996, 77,302,326 shares of common stock of Marvel held by
Marvel Holdings and Marvel (Parent) were pledged to secure the debt
obligations under the secured notes issued by Marvel Holdings, Marvel
(Parent) and Marvel III and an additional approximately 2.9 million shares
of Marvel common stock are subject to a negative pledge under the secured
notes issued by Marvel Holdings. The capital stock of Marvel Holdings and
Marvel (Parent) is also pledged to secure the debt obligations under the
secured notes issued by Marvel Holdings, Marvel (Parent) and Marvel III.
The right to vote the pledged shares of Marvel, Marvel Holdings and Marvel
(Parent) is the subject of proceedings in bankruptcy actions relating
to those entities. See "Item 1. Business -- Possible Change of Control."
(2) Includes two shares of Class B Common Stock held in voting trusts. Marvel
is the sole beneficiary of each voting trust.
(3) Mr. Arad is a Director and principal Stockholder of the Company.
(4) Includes one share of Class B Common Stock held by a voting trust of which
Mr. Arad is the sole trustee.
(5) Represents Class A Common Stock owned by Zib, formerly Toy Biz, Inc., a
Delaware corporation incorporated in 1990, which is owned entirely by the
Isaac Perlmutter T.A., a revocable trust established by Mr. Perlmutter.
Mr. Perlmutter is the sole beneficiary of the trust during his lifetime and
may revoke the trust at any time. Mr. Perlmutter and his wife serve as the
trustees of such trust.
(6) Includes one share of Class B Common Stock held by a voting trust of which
Mr. Perlmutter is the sole trustee.
(7) Includes 270,000 shares of Class A Common Stock subject to employee options
granted pursuant to the Stock Option Plan which are immediately exercisable
or exercisable within 60 days.
(8) Represents shares of Class A Common Stock subject to employee options
granted pursuant to the Stock Option Plan which are immediately exercisable
or exercisable within 60 days.
(9) Represents shares held in trusts for the benefit of Mr. Drapkin's children
for which Mr. Drapkin disclaims beneficial ownership.
(10) Includes 455,000 shares of Class A Common Stock subject to employee options
granted pursuant to the Stock Option Plan.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Because Marvel and various of its affiliates are the subject of actions for
reorganization under Chapter 11, agreements described below to which Marvel or
those affiliates are parties which are determined by the bankruptcy court to be
executory contracts may be subject to rejection in those actions.
THE MERGER AGREEMENT AND RELATED AGREEMENTS
The Company, Arad and Perlmutter have each received notice from Andrews
Group that Andrews Group has terminated its Stock Acquisition Agreement with
Marvel, and accordingly a condition to the obligations of Andrews Group and
Acquisition to consummate the Merger pursuant to the Merger Agreement will not
be satisfied. Andrews Group further advised the Company, Arad and Perlmutter
that Andrews Group does not intend to waive such condition, and anticipates that
the Merger will not be consummated. While the Merger Agreement has not been
formally terminated, the Merger will not be consummated if Andrews Group does
not waive such condition. Because Andrews Group does not intend to waive that
condition to consummation of the Merger, the conditions to the obligations of
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<PAGE>
Andrews Group to consummate the transactions contemplated by the Stock Purchase
Agreements discussed herein will not be satisfied. In addition, certain
performance bonus agreements and the consulting agreements between the Company
and each of Arad and Perlmutter (or, in the case of Arad, the amendment and
restatement of his existing consulting agreement with the Company) discussed
herein will not become effective because the Merger will not be consummated.
See "Item 1. Business - Possible Change of Control."
The Merger Agreement
On December 27, 1996, following approval by the Independent Committee, the
Company entered into the Merger Agreement. The following is a summary of
certain provisions of the Merger Agreement and is qualified in its entirety by
reference to the Merger Agreement, a copy of which is filed (by means of
incorporation by reference) as an exhibit hereto.
Pursuant to the Merger Agreement, Acquisition would have been merged with
and into the Company. Following the Merger, the Company would have continued as
the surviving corporation and the separate existence of Acquisition would have
ceased. In the Merger, each of the outstanding shares of Class A Common Stock
and each of the outstanding shares of Class B Common Stock would have been
converted into the right to receive $22.50 per share (the "Merger
Consideration"), and each of the outstanding shares of Preferred Stock of the
Company would have been converted into the right to receive an amount per share
equal to the then applicable redemption price, payable to the holder thereof,
without interest (the "Preferred Merger Consideration"). Holders of outstanding
options to purchase shares of Common Stock granted under the Company's 1995
Stock Option Plan would have received an amount in respect thereof equal to the
product of (A) the excess, if any, of the Merger Consideration over the exercise
price of such employee options and (B) the number of shares represented by such
employee options.
The Merger Agreement provides that the obligations of Andrews Group to
consummate the Merger are conditioned upon, among other things, the confirmation
of the Joint Plan of Reorganization of Marvel (with such changes as Andrews
Group may have approved) (the "Plan Condition") and that all conditions to
closing under the Stock Acquisition Agreement (excluding the condition that all
conditions to the closing of the Merger Agreement be satisfied) shall have been
satisfied or waived. As discussed above, the Company, Arad and Perlmutter have
each received notice from Andrews Group that Andrews Group has terminated its
Stock Acquisition Agreement with Marvel, and accordingly a condition to the
obligations of Andrews Group and Acquisition to consummate the Merger pursuant
to the Merger Agreement will not be satisfied. Andrews Group further advised
the Company, Arad and Perlmutter that Andrews Group does not intend to waive
such condition and anticipates that the Merger will not be consummated. While
the Merger Agreement has not been formally terminated, the Merger will not be
consummated if Andrews Group does not waive such condition.
The Stock Purchase Agreements
The Stock Purchase Agreements, each dated as of November 20, 1996 as
amended as of January 29, 1997, are, respectively, between Andrews Group and
Arad and between Andrews Group and the Perlmutter Group, and both contain
substantially similar provisions. Each provides for the purchase by Andrews
Group of all the shares of the Company owned by Arad and the Perlmutter Group
upon the terms and the satisfaction or waiver of certain conditions contained
therein. The Stock Purchase Agreements provide that the obligations of Andrews
Group to consummate such stock purchases are conditioned upon, among other
things, the consummation of the Merger. While the Merger Agreement has not been
formally terminated, as discussed above, the Company, Arad and Perlmutter have
each received notice from Andrews Group indicating that the Merger will not be
consummated. Accordingly, the transactions contemplated by the Stock Purchase
Agreements will not be consummated.
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<PAGE>
Pursuant to the Stock Purchase Agreements, the Perlmutter Group and Arad
would have sold 9,506,000 and 4,150,000 shares of Class A Common Stock,
respectively, to Andrews Group on the closing dates set forth in such agreements
(the "Stock Closings"). The aggregate purchase price for the shares sold by the
Perlmutter Group and Arad would have been $171,184,000 in cash and $20 million
in debt of Andrews Group. In addition, the Perlmutter Group and Arad would have
been entitled to additional payments based upon the earnings of the Company for
the 12 month period ended December 31, 1997. The Perlmutter Group and Arad also
would have been entitled to additional payments if Andrews Group and its
affiliates were to sell or otherwise transfer for value, including by way of
merger, substantially all of the stock or assets of the Company within one year
after the Stock Closings.
Consulting and Bonus Agreements with Arad and Perlmutter
Arad is a party to a consulting agreement with the Company that would have
been amended and restated, and Perlmutter has entered into a consulting
agreement with the Company (in both cases pursuant to the Stock Purchase
Agreements), each of which would have become effective upon the consummation of
the Merger. While the Merger Agreement has not been formally terminated, as
discussed above, the Company, Arad and Perlmutter have each received notice from
Andrews Group indicating that the Merger is unlikely to be consummated.
Accordingly, it is unlikely that either the amendment and restatement of Arad's
consulting agreement, or the consulting agreement between Perlmutter and the
Company, will become effective.
Arad's amended and restated consulting agreement would have provided for
Arad to be engaged exclusively in the business of the Company, except for
certain pre-existing commitments, work performed under an employment contract
with New World Animation Ltd. (which has been assigned to Marvel Studios) and
work performed under a letter agreement with Marvel for the Marvel Films
division of Marvel. Arad currently receives, and would have received under his
amended and restated consulting agreement, $375,000 annually and reimbursement
of reasonable out-of-pocket expenses incurred in performance of his duties, in
addition to certain other benefits. Arad currently receives under his contract
with New World Animation Ltd., and will receive under his contract with Marvel
Studios, $375,000 annually in addition to certain other employee benefits. Arad
is also entitled to receive a fee ranging from $7,500 to $10,000 per episode for
television projects and from $100,000 to $250,000 for made-for-television movies
based on Marvel's characters. Arad's consulting agreement has, and his amended
and restated consulting agreement would have had, provisions that restrict
Arad's ability to compete with the Company for one year after he ceases to be
engaged by the Company if the termination results from a breach by Arad of his
consulting, employment or other agreements with the Company.
Perlmutter's consulting agreement would have provided for Perlmutter to
provide consulting services for the Company at the request of the current Chief
Executive Officer of the Company.
Arad and Perlmutter are parties to performance bonus agreements with the
Company, and Joseph Ahearn, the President and Chief Executive Officer of the
Company, is a party to a performance bonus arrangement with the Company, each of
which would have become effective upon consummation of the Merger. While the
Merger Agreement has not been formally terminated, as discussed above, the
Company, Arad and Perlmutter have each received notice from Andrews Group
indicating that the Merger is unlikely to be consummated. Accordingly, it is
unlikely that either of the performance bonus agreements (or, in the case of
Joseph Ahearn, the performance bonus arrangement) will become effective.
Pursuant to the performance bonus agreements (or, in the case of
Joseph Ahearn, the performance bonus arrangement), each of Arad, Perlmutter and
Joseph Ahearn would have been entitled to receive payments, subject to certain
conditions, based upon the increase in value of the Company over a fixed time
period. In the case of Joseph Ahearn, his eligibility to receive such bonus
would have been subject to the approval by shareholders of Marvel of his
performance bonus arrangement. If Arad's, Perlmutter's or Joseph Ahearn's
services to the Company ceased by reason of death or disability, then the
Company would have paid a prorated portion (based on the portion of the
performance period prior to cessation of service) of the performance bonus to
such individual (or his estate)
-27-
<PAGE>
at the time the bonus would have otherwise have been payable. In such
circumstances, the forfeited portion of the performance bonus would have been
used to augment the performance bonuses payable to the other individuals.
MARVEL LICENSE AGREEMENTS
In connection with the formation of the Company, Marvel granted the Company
the Marvel License, an exclusive, perpetual and royalty-free license to
manufacture and distribute a broad range of toys based upon characters owned by
Marvel and properties in which it owns copyrights, trademarks or tradenames.
The Marvel License covers all characters (including the associated copyrights
and trademarks) owned by Marvel and disseminated under the Marvel Comics
trademark.
The Marvel License restricts Marvel, subject to the Company's prior
consent, from manufacturing, using, distributing or advertising the licensed
products and from granting other licenses to use the Marvel Characters in
connection with the licensed products.
The Company and Marvel have entered into an exclusive license agreement
pursuant to which Marvel may use the Toy Biz trademark on online services and
electronic networks, including the Internet. The license is limited to Marvel-
related products of the Company. Marvel paid the Company $500,000 for such
license.
The Company also distributes certain products through a wholly owned
subsidiary of Marvel engaged in the distribution of products to certain comic
book retailers. During the years ended December 31, 1995 and 1996, the
Company's sales to that subsidiary totalled $1,616,000 and $324,000,
respectively.
LICENSE WITH AVI ARAD
Avi Arad & Associates ("Associates"), of which Avi Arad is the sole
proprietor, and the Company are parties to a license agreement which amended the
licenses between Associates and the Predecessor Company outstanding at the time
of the Company's formation and which governs the licensing of new material to
the Company by Associates thereafter. The license agreement provides that
Associates is entitled to receive royalty payments on net sales of Marvel
character-based toys and on net sales of non-Marvel based toys of which Arad is
the inventor of record. In no event, however, may the total royalties payable
to Associates during any calendar year exceed $7.5 million. If the Stock
Purchase Agreement between the Company and Arad was consummated, the license
agreement between the Company and Associates would have been amended to reduce
the maximum royalties payable during any calendar year to $2.5 million. Arad
has agreed that he is not entitled to receive royalties based on sales in 1996
of certain Marvel character-based toys which were developed independently of
Arad in 1996. Arad agreed to pay the Company approximately $500,000, for certain
advertising expenses related to the Company's Battle Builder product in 1996.
MARVEL SERVICES ARRANGEMENT
In connection with the IPO in March 1995, the Company and Marvel entered
into a services agreement (the "Services Agreement") governing the provision by
Marvel of services to the Company. Under the Services Agreement, upon request
by the Company and acceptance by Marvel, Marvel provides certain management,
consulting and administrative services and certain services purchased from third
party providers, including legal and accounting services. The Company is
obligated to reimburse Marvel for the costs of such services. The Services
Agreement has a term of one year and will be automatically renewed for
successive one-year terms unless terminated upon 120 days' notice. Marvel is
under no obligation to provide services under the Services Agreement. The
Company accrued or reimbursed to Marvel approximately $306,000 and $262,000 for
1995 and 1996, respectively.
STOCKHOLDERS' AGREEMENT AND CLASS B VOTING TRUSTS
-28-
<PAGE>
In connection with the initial public offering of the Company in March
1995, Marvel, the Perlmutter Group, Arad and the Company entered into a
stockholders' agreement (the "Stockholders' Agreement") which provides, among
other things, that Marvel and its permitted transferees (generally entities
which are affiliates of Marvel) ("Permitted Transferees"), if any, Perlmutter
and Arad will vote their respective shares of common stock of the Company to
elect as directors of the Company (i) eight persons designated by Marvel, (ii)
two persons designated by Perlmutter and (iii) one person designated by Arad.
The Stockholders' Agreement also permits certain pledges of Class B Common Stock
owned by Marvel and its Permitted Transferees.
The Stockholders' Agreement provides that, upon a change of control of
Marvel, Marvel is obligated to convert its shares of Class B Common Stock into
Class A Common Stock, unless Perlmutter and Arad consent to such shares
remaining Class B Common Stock. The Stockholders' Agreement terminates upon,
among other events, the mutual agreement of the parties thereto, upon the sale
of all or substantially all of the assets of the Company or upon the conversion
into Class A Common Stock of the Class B Common Stock held by Marvel and its
Permitted Transferees pursuant to a change in control of Marvel and also will
terminate as to any holder owning Class B Common Stock (other than pursuant to
the Voting Trusts (as defined below)) when such holder no longer beneficially
owns or holds such Class B Common Stock. Arad and the Perlmutter Group have
agreed, in the Stock Purchase Agreements, that prior to closing of the Stock
Purchase Agreements they will not, without the consent of Andrews Group, grant
any consent that would prevent the shares of Class B Common Stock from being
converted into Class A Common Stock following a change of control of Marvel.
See "- Stock Purchase Agreements."
Each of Arad and Perlmutter is the sole trustee of a Class B voting trust
in which Marvel deposited one share of Class B Common Stock (the "Voting
Trusts"). Marvel is the sole beneficiary of each of the Voting Trusts. Each of
Messrs. Perlmutter and Arad has the right to vote the share of Class B Common
Stock held by his respective Voting Trust in his absolute discretion, subject to
certain exceptions, until the termination of such trust.
The rights and obligations of the Perlmutter Group and Arad under the
Stockholders' Agreement cease, and the Voting Trusts of which Perlmutter and
Arad are the trustees will terminate and the shares of Class B Common Stock held
by the Voting Trusts will be distributed to Marvel, upon the occurrence of
certain events, including a reduction in the holdings of Class A Common Stock by
Perlmutter and Arad below specified amounts. In addition, each Voting Trust
terminates if either Perlmutter or Arad attempts to transfer or dispose of his
respective right to vote the Class B Common Stock subject to the Voting Trust of
which he is trustee or any interest therein. It is a condition to the closing
of the Stock Purchase Agreements that the respective Voting Trust agreements of
Arad and Perlmutter have terminated.
COMPANY REGISTRATION RIGHTS AGREEMENT
The Company is a party to a registration rights agreement (the "Company
Registration Rights Agreement") with Marvel, Arad and Perlmutter, pursuant to
which they and certain of their transferees each have the right, subject to
certain conditions, to require the Company to register under the Securities Act,
all or any portion of the shares of Class A Common Stock held by them or, in the
case of Marvel, issuable upon conversion of its Class B Common Stock on two
occasions. In addition, Marvel, Arad, Perlmutter and certain of their
transferees have certain rights to participate in such registrations and in
other registrations by the Company of its Class A Common Stock. The Company is
obligated to pay any expenses incurred in connection with such registrations,
except for underwriting discounts and commissions attributable to the shares of
Class A Common Stock sold by stockholders pursuant to such registrations.
TANGIBLE MEDIA ADVERTISING SERVICES
Tangible Media, a corporation which is wholly owned by Perlmutter, acts as
the Company's media consultant in placing the Company's advertising and, in
connection therewith, receives certain fees and commission based on the cost of
the placement of such advertising. Tangible Media is compensated solely as a
consultant on an event-by-event basis with no written arrangements in place. It
is expected that Tangible Media, upon request,
-29-
<PAGE>
will continue to arrange for the placement for the Company's advertising. The
Company retains the services of a non-affiliated media consulting agency on
matters of advertising creativity. Tangible Media received payments of fees and
commissions totalling approximately $970,000 and $965,000 in 1995 and 1996,
respectively.
EMPLOYEE, OFFICE SPACE AND OVERHEAD COST SHARING ARRANGEMENTS
Under expense sharing arrangements with Tangible Media, Classic Heroes, REC
Sound and Marvel Software, affiliated companies owned by Perlmutter in the case
of Tangible Media, Classic Heroes and REC Sound, or owned equally by Marvel and
the Company in the case of Marvel Software (collectively, the "Affiliates"), the
Company and the Affiliates have shared certain space at the Company's principal
executive offices and related overhead expenses. Since 1994, Tangible Media and
the Company have been, and until the end of 1995 Classic Heroes and REC Sound
were, parties to an employee, office space and overhead cost sharing agreement
governing the Company's sharing of employees, office space and overhead expenses
(the "Cost Sharing Agreement"). Under the Cost Sharing Agreement, any party
thereto may through its employees provide services to another party, upon
request, whereupon the party receiving services shall be obligated to reimburse
the providing party for the cost of such employees' salaries and benefits
accrued for the time devoted by such employees to providing services. Under
this agreement, Tangible Media is currently obligated to reimburse the Company
for 15% of the rent paid under the sublease for the space, which obligations
reflect the approximate percentage of floor space occupied by Tangible Media.
The agreement also requires Tangible Media to reimburse the Company for any
related overhead expenses comprised of commercial rent tax, repair and
maintenance costs and telephone and facsimile services, in proportion to its
percentage occupancy. The Cost Sharing Agreement is coterminous with the term
of the Company's lease for its executive offices. The Company received net
reimbursements from one of the Affiliates of approximately $245,000 for 1996 for
rent and other matters.
SHOWROOM SHARING ARRANGEMENT
Under an expense sharing arrangement with Marvel, Classic Heroes and REC
Sound (the "Showroom Affiliates"), the Company and the Showroom Affiliates have
shared showroom space and related overhead expenses. Since 1995, Marvel and the
Company have been, and until the end of 1995 Classic Heroes and REC Sound were,
parties to a showroom space sharing agreement (the "Showroom Sharing
Agreement"). Under the Showroom Sharing Agreement, Marvel is currently
obligated to reimburse the Company for 30% of the rent paid under the lease for
the showroom space, which obligations reflect the percentage of floor space
occupied by Marvel. The agreement also requires Marvel to reimburse the Company
for any related overhead expenses comprised of commercial rent tax, repair and
maintenance costs and telephone and facsimile service, in proportion to their
percentage occupancy, except that overhead expenses which inure to the benefit
of a single party shall be reimbursed entirely by such party. The agreement has
a term which is coterminous with the term of the Company's lease for the
showroom space. The Company was reimbursed approximately $47,000 in 1996 under
the Showroom Sharing Agreement.
MARVEL STUDIOS
The Company and Marvel formed Marvel Studios with the objective of
facilitating the release of live action and animated motion pictures and
television programming and other media based on the Marvel Characters in order
to create greater consumer interests in these characters and related
merchandise. The Company believes that any feature film or television
programming, theatrical productions or other media and any advertising and
promotion associated with such media will create consumer interest in the Marvel
Characters and revenue opportunities for Marvel's businesses and the Company's
licensing and toy businesses. The Company believes that Marvel Studios will
facilitate the release of feature films, television programming and other media.
The Company and Marvel expect Marvel Studios to utilize the experience that the
Company and Marvel have developed in licensing the Marvel Characters for
television and film projects and capitalizing on related toy sales. Arad, an
executive producer of the X-Men(R) and Spider-Man(R) Saturday morning television
shows, is to be the President, Chief Executive Officer and creative head of
Marvel Studios for film projects and co-creative head for animated
-30-
<PAGE>
projects and an executive producer of all film and television projects of Marvel
Studios. The rights to produce certain feature films based on certain of the
Marvel Characters are currently licensed to third parties. A portion of the
approximately $9.1 million net proceeds to the Company form the 1996 public
offering was intended to fund the Company's capital commitment to Marvel
Studios. At this time, the Company has no plans to invest a material amount of
funds in Marvel Studios in the short term, and before the Company makes any
material investment in Marvel Studios, the Company intends to assess the
developments in Marvel's bankruptcy proceeding.
OTHER AGREEMENTS WITH AFFILIATES
The Company is a party to a license agreement entered into in September
1994 with Coleman, an affiliate of the Company, pursuant to which the Company
licenses certain Coleman trademarks.
The Company is a party to a license agreement entered into in July 1995
with Revlon Consumer Products Corporation, an affiliate of the Company, pursuant
to which the Company licenses certain Revlon Consumer Products Trademarks.
The Company believes that the terms of the foregoing transactions are no
less favorable than could be obtained by the Company from unrelated parties on
an arm's-length basis.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES,
AND REPORTS ON FORM 8-K
(a) Documents Filed with this Report
1. Financial Statements
--------------------
See the accompanying Index to Financial Statements and Financial
Statement Schedule on page F-1.
2. Financial Statement Schedule
----------------------------
See the accompanying Index to Financial Statements and Financial
Statement Schedule on page F-1.
3. Exhibits
--------
See the accompanying Exhibit Index appearing on page 32.
(b) Reports on Form 8-K.
1. The Registrant filed a Current Report on Form 8-K, dated as of
December 27, 1996 and filed on January 2, 1997.
-31-
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO.
- -----------
<C> <S>
2.1 Agreement and Plan of Merger, dated as of December 27, 1996, by and among
Andrews Group Incorporated ("Andrews Group"), Andrews Acquisition Corp.
("Acquisition") and the Company (Incorporated by reference to Exhibit (c)(1) to the
Transaction Statement on Schedule 13E-3 filed by Andrews Group and Acquisition on
January 30, 1997.
2.2 Amended and Restated Asset Purchase Agreement, dated August 17, 1995, between
the Company and Spectra Star, Inc., as amended by the First, Second, Third, Fourth
and Fifth Amendments thereto. (Incorporated by reference to Exhibits 2.1, 2.2, 2.3
2.4 and 2.5 to the Company's Current Report on Form 8-K, filed with the
Commission on September 26, 1995.)
3.1 Restated Certificate of Incorporation. (Incorporated by reference to Exhibit 3.1 to the
Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1995.)
3.2 Certificate of Designation of Series A Preferred Stock of Toy Biz, Inc. (Incorporated
by reference to Exhibit 3.1 to the Company's Current Report on Form 8-K, filed with
the Commission on September 26, 1995.)
3.3 Bylaws (as restated and amended). (Incorporated by reference to Exhibit 3.2 to the
Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1995.)
4.1 Specimen Copy of Stock Certificate for shares of Class A Common Stock.
(Incorporated by reference to Exhibit 4.1 to the Company's Registration Statement on
Form S-1, File No. 33-87268.)
9.1 Voting Trust Agreement, dated as of March 2, 1995, by and among Marvel
Entertainment Group, Inc., Avi Arad and the Company. (Incorporated by reference
to Exhibit 9.1 to the Company's Registration Statement on Form S-1, File No. 33-
87268.)
9.2 Voting Trust Agreement, dated as of March 2, 1995, by and among Marvel
Entertainment Group, Inc., Isaac Perlmutter and the Company. (Incorporated by
reference to Exhibit 9.2 to the Company's Registration Statement on Form S-1, File
No. 33-87268.)
10.1 Stockholders Agreement, dated as of March 2, 1995, by and among the Company,
Isaac Perlmutter T.A., Marvel Entertainment Group, Inc., Avi Arad and Zib Inc.
(Incorporated by reference to Exhibit 10.1 to the Company's Quarterly Report on
Form 10-Q for the quarter ended March 31, 1995.)
10.2 Registration Rights Agreement, dated as of March 2, 1995, by and among the
Company, Marvel Entertainment Group, Inc., and Isaac Perlmutter and Avi Arad.
(Incorporated by reference to Exhibit 10.2 to the Company's Quarterly Report on
Form 10-Q for the quarter ended March 31, 1995.)
</TABLE>
-32-
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO.
- -----------
<C> <S>
10.3 Assignment and Assumption of Sublease by and between Job Lot of West 45th St.,
Inc. and the Company, as amended by First Amendment of Sublease, dated May 26,
1994, by and between Kallir, Philips, Ross, Inc. and the Company; Agreement of
Sublease, dated May 6, 1991, by and between Kallir, Philips, Ross, Inc. and Job Lot
of West 45th St., Inc.; Agreement of Sublease, dated January 1989, by and between
673 First Realty Company and Kallir, Philips, Ross, Inc. (Incorporated by reference
to Exhibit 10.3 to the Company's Registration Statement on Form S-1, File No.
33-87268.)
10.4 Lease, dated December 3, 1993, by and between 200 Fifth Avenue Associates and the
Company. (Incorporated by reference to Exhibit 10.4 to the Company's Registration
Statement on Form S-1, File No. 33-87268.)
10.5 Sublease, dated December 19, 1996, by and between Gruner & Jahr USA Publishing
and the Company.
10.6 Letter Agreement, effective March 1, 1994, by and between Regal West Warehouse
Trucking and the Company. (Incorporated by reference to Exhibit 10.5 to the
Company's Registration Statement on Form S-1, File No. 33-87268.)
10.7 Credit Agreement, dated as of February 22, 1995 among the Company, the Banks (as
defined therein) and Chemical Bank as administrative agent for the Banks, as
amended by First Amendment and Consent Number 1, dated as of August 29, 1995.
(Incorporated by reference to Exhibit 10.3 to the Company's Quarterly Report on
Form 10-Q for the quarter ended March 31, 1995 and Exhibit 10.7 to the Company's
Current Report on Form 8-K filed on September 26, 1995.)
10.8 License Agreement, dated April 30, 1993, by and between the Company and Marvel
Entertainment Group, Inc., as amended by Amendments thereto, dated December 1,
1994, and February 22, 1995. (Incorporated by reference to Exhibits 10.9 and 10-
9(b) to the Company's Registration Statement on Form S-1, File No. 33-87268 and to
Exhibit 10.4 to the Company's Quarterly Report on Form 10-Q for the Quarter ended
March 31, 1995).
10.9 License Agreement, dated July 1, 1994, between Marvel Entertainment Group, Inc.
and the Company. (Incorporated by reference to Exhibit 10.12 to the Company's
Registration Statement on Form S-1, File No. 33-87268.)
10.10 License Agreement, dated March 1, 1993, by and between the Company and Gerber
Products Company as amended by Amendment thereto, dated April 5, 1995.
(Incorporated by reference to Exhibit 10.13 to the Company's Registration Statement
on Form S-1, File No. 33-87268 and Exhibit 10.6 to the Company's Quarterly Report
on Form 10-Q for the quarter ended June 30, 1995.), (Confidential treatment has
been requested for a portion of this exhibit).
10.11 Distribution Agreement, dated July 29, 1993, by and between the Company and Tyco
Industries, Inc. (Incorporated by reference to Exhibit 10.17 to the Company's
Registration Statement on Form S-1, File No. 33-87268).
10.12 Services Agreement, dated as of March 2, 1995, by and between the Company
and Marvel Entertainment Group, Inc. (Incorporated by reference to Exhibit 10.18 to
the Company's Registration Statement on Form S-1, File No. 33-87268.)
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO.
- -----------
<C> <S>
10.13 Showroom Sharing Agreement, dated as of March 2, 1995, by and among the
Company, Marvel Entertainment Group, Inc., Classic Heroes, Inc. and REC Sound
Incorporated. (Incorporated by reference to Exhibit 10.20 to the Company's
Registration Statement on Form S-1, File No. 33-87268.)
10.14 Master License Agreement, dated as of April 30, 1993, between Avi Arad &
Associates and the Company. (Incorporated by reference to Exhibit 10.21 to the
Company's Registration Statement on Form S-1, File No. 33-87268.)
10.15 Amended and Restated Consulting Agreement by and between the Company and Avi
Arad, as amended and restated as of March 2, 1995. (Incorporated by reference to
Exhibit 10.22 to the Company's Registration Statement on Form S-1, File No. 33-
87268.)*
10.16 Amended and Restated Employment Agreement between New World Animation, Ltd.
and Avi Arad. (Incorporated by reference to Exhibit 10.23 to the Company's
Registration Statement on Form S-1, File No. 33-87268.)
10.17 Stock Option Agreement, dated as of April 30, 1993, between the Company and Avi
Arad as amended. (Incorporated by reference to Exhibits 10.25, 10.26 and 10.26(b)
to the Company's Registration Statement on Form S-1, File No. 33-87268.)
10.18 Employment Agreement, by and between Joseph M. Ahearn and the Company.
(Incorporated by reference to Exhibit 10.27 to the Company's Registration Statement
on Form S-1, File No. 33-87268.)*
10.19 Employment Agreement, by and between Andrew R. Gatto and the Company.
(Incorporated by reference to Exhibit 10.18 to the Company's Annual Report on Form
10-K, filed on April 1, 1995.)*
10.20 Employment Agreement, by and between Alan Fine and the Company.*
10.21 1995 Stock Option Plan. (Incorporated by reference to Exhibit 10.30 to the
Company's Registration Statement on Form S-1, File No. 33-87268.)*
10.22 Registration Rights Agreement, dated September 11, 1995, by and between the
Company and Spectra Star, Inc. (Incorporated by reference to Exhibit 10.8 to the
Company's Current Report on Form 8-K, filed on September 26, 1995.)
10.23 Option Agreement, dated September 11, 1995, by and between the Company and
Spectra Star, Inc. (Incorporated by reference to Exhibit 10.9 to the Company's
Current Report on Form 8-K, filed on September 26, 1995.)
10.24 Purchase and Option Agreement, dated September 11, 1995, by and between the
Company, Frank Alonso, Jr. and Estrella Maquiladoras, S.A. DE C.V.
(Incorporated by reference to Exhibit 10.10 to the Company's Current Report on
Form 8-K, filed on September 26, 1995.)
10.25 Maquila and Technical Assistance Agreement, dated September 11, 1995, by and
between the Company and Estrella Maquiladoras, S.A. DE C.V. (Incorporated by
reference to Exhibit 10.11 to the Company's Current Report on Form 8-K, filed on
September 26, 1995.)
</TABLE>
-34-
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO.
- -----------
<C> <S>
10.26 Stock Purchase Agreement, dated as of November 20, 1996, between Andrews and
Avi Arad (Incorporated by reference to Exhibit A to Amendment No. 1 to the
Schedule 13D filed by Andrews Group and Mafco Holdings, Inc. with respect to the
Company), as amended by the Amendment to the Stock Purchase Agreement, dated
as of January 29, 1997 (Incorporated by reference to Exhibit (c)(10) to the
Transaction Statement on Schedule 13E-3 filed by Andrews Group and Acquisition on
January 30, 1997).
10.27 Stock Purchase Agreement, dated as of November 20, 1996, between Andrews Group
and Isaac Perlmutter, Isaac Perlmutter, T.A. and Zib, Inc. (Incorporated by reference
to Exhibit B to Amendment No. 1 to the Schedule 13D filed by Andrews Group and
Mafco Holdings, Inc. with respect to the Company), as amended by the Amendment
to the Stock Purchase Agreement, dated as of January 29, 1997 (Incorporated by
reference to Exhibit (c)(11) to the Transaction Statement on Schedule 13E-3 filed by
Andrews Group and Acquisition on January 30, 1997).
10.28 Stock Purchase Agreement, dated as of December 27, 1996, by and between Andrews
Group and Marvel Entertainment Group, Inc. (Incorporated by reference to Exhibit C
to Amendment No. 3 to the Schedule 13D filed by Andrews Group and Mafco
Holdings, Inc. with respect to the Company).
10.29 Letter Agreement, February 14, 1997, between the Company and Avi Arad amending
the Master License Agreement, dated as of April 20, 1993, between Avi Arad
Associates and the Company.
21.1 Subsidiaries of the Company.
23 Consent of Accountants.
24 Power of Attorney.
27 Financial Data Schedule.
</TABLE>
* Management contract or compensatory plan or arrangement.
-35-
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
TOY BIZ, INC.
By: /s/ Joseph M. Ahearn
---------------------------------------
Joseph M. Ahearn
President and Chief Executive Officer
Date: April 7, 1997
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
* Director April 7, 1997
- -------------------------
Ronald O. Perelman
/s/ Joseph M. Ahearn President, Chief Executive Officer April 7, 1997
- ------------------------- and Director (principal executive
Joseph M. Ahearn officer)
/s/ David J. Fremed Chief Financial Officer and April 7, 1997
- ------------------------- Treasurer (principal financial and
David J. Fremed accounting officer)
/s/ Avi Arad Director April 7, 1997
- -------------------------
Avi Arad
/s/ William C. Bevins Director April 7, 1997
- -------------------------
William C. Bevins
/s/ Donald G. Drapkin Director April 7, 1997
- -------------------------
Donald G. Drapkin
/s/ Bobby G. Jenkins Director April 7, 1997
- -------------------------
Bobby G. Jenkins
</TABLE>
-36-
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ James F. Halpin Director April 7, 1997
- -------------------------
James F. Halpin
/s/ Isaac Perlmutter Director April 7, 1997
- -------------------------
Isaac Perlmutter
/s/ Alfred A. Piergallini Director April 7, 1997
- -------------------------
Alfred A. Piergallini
/s/ Paul R. Verkuil Director April 7, 1997
- -------------------------
Paul R. Verkuil
/s/ Terry C. Stewart Director April 7, 1997
- -------------------------
Terry C. Stewart
*By: /s/ Daniel J. Werther
-------------------------
Daniel J. Werther
Attorney-in-Fact
</TABLE>
-37-
<PAGE>
INDEX TO FINANCIAL STATEMENTS
AND FINANCIAL STATEMENT SCHEDULE
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Report of Independent Auditors....................................... F-2
Consolidated Balance Sheets as of December 31, 1995
and December 31, 1996............................................... F-3
Consolidated Statements of Income for the Years Ended
December 31, 1994, 1995 and 1996.................................... F-4
Consolidated Statements of Stockholders' Equity for the Years Ended
December 31, 1994, 1995 and 1996.................................... F-5
Consolidated Statements of Cash Flows for the Years Ended
December 31, 1994, 1995 and 1996.................................... F-6
Notes to Consolidated Financial Statements........................... F-7
FINANCIAL STATEMENT SCHEDULES
Schedule II - Valuation of Qualifying Accounts...................... F-22
</TABLE>
All other schedules prescribed by the accounting regulations of the
Commission are not required or are inapplicable and therefore have been
omitted.
F-1
<PAGE>
REPORT OF INDEPENDENT AUDITORS
THE STOCKHOLDERS OF TOY BIZ, INC.
We have audited the accompanying consolidated balance sheets of Toy Biz, Inc.
and subsidiary as of December 31, 1995 and 1996 and the related consolidated
statements of income, stockholders' equity and cash flows for each of the three
years in the period ended December 31, 1996. Our audits also included the
financial statement schedule listed in the index at item 14(a). The financial
statements and schedule are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements and
schedule based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audits to
obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant estimates
made by management, as well as evaluating the overall financial statement
presentation. We believe that our audits provide a reasonable basis for our
opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the consolidated financial position of Toy Biz, Inc., and
subsidiary at December 31, 1995 and 1996 and the consolidated results of their
operations and their cash flows for each of the three years in the period ended
December 31, 1996 in conformity with generally accepted accounting principles.
Also, in our opinion, based upon our audits, the financial statement schedule
referred to above, when considered in relation to the basic financial statements
taken as a whole, presents fairly in all material respects the information set
forth therein.
ERNST & YOUNG LLP
New York, New York
March 25, 1997
F-2
<PAGE>
TOY BIZ, INC.
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
DECEMBER 31, DECEMBER 31,
1995 1996
------------- --------------
(In thousands, except per share data)
<S> <C> <C>
ASSETS
Current Assets:
Cash and cash equivalents.................................... $ 22,484 $ 6,022
Accounts receivable, net (Note 3)............................ 74,748 95,591
Inventories, net (Note 3).................................... 17,195 20,935
Deferred income taxes (Notes 1 and 6)........................ 4,141 6,173
Prepaid expenses and other................................... 4,476 6,067
----------- -----------
Total current assets...................................... 123,044 134,788
Molds, tools and equipment, net (Note 3)....................... 12,102 17,680
Product and package design costs, net (Note 3)................. 6,971 9,283
Goodwill and other intangibles, net (Note 3)................... 10,101 9,981
----------- -----------
Total assets.............................................. $152,218 $171,732
=========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable............................................. $ 8,830 $ 10,237
Accrued expenses and other (Note 3).......................... 29,040 22,359
----------- -----------
Total current liabilities................................. 37,870 32,596
----------- -----------
Redeemable preferred stock..................................... 3,016 1,681
----------- -----------
Stockholders' equity (Note 8, 9 and 10)
Preferred Stock, $.01 par value, 25,000,000 shares
authorized, none issued).................................... -- --
Class A common stock, $.01 par value, 100,000,000 shares
authorized, 17,126,130 issued and outstanding at 12/31/95
and 20,348,794 issued and outstanding at 12/31/96......... 171 203
Class B common stock, $.01 par value, 20,000,000 shares
authorized, 9,894,000 issued and outstanding at 12/31/95
and 7,394,000 issued and outstanding at 12/31/96.......... 99 74
Additional paid-in capital................................... 61,158 70,587
Retained earnings............................................ 49,904 66,591
----------- -----------
Total stockholders' equity......................... 111,332 137,455
----------- -----------
Total liabilities and stockholders' equity......... $152,218 $171,732
=========== ===========
</TABLE>
See Notes to Consolidated Financial Statements.
F-3
<PAGE>
TOY BIZ, INC.
CONSOLIDATED STATEMENTS OF INCOME
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
1994 1995 1996
---------------------------------------
(In thousands, except per share data)
<S> <C> <C> <C>
Net sales.................................... $156,525 $196,395 $221,624
Cost of sales................................ 73,490 88,397 116,455
-------- -------- --------
Gross profit............................ 83,035 107,998 105,169
Operating expenses:
Selling, general and administrative........ 38,263 48,234 61,876
Depreciation and amortization.............. 8,609 12,750 16,078
Compensatory stock option.................. 4,091 - -
-------- -------- --------
Total expenses.......................... 50,963 60,984 77,954
-------- -------- --------
Operating income............................. 32,072 47,014 27,215
Interest expense............................. (1,862) (490) (112)
Other income, net............................ 65 1,050 708
-------- -------- --------
Income before income taxes................. 30,275 47,574 27,811
Income taxes (Note 6)...................... 12,261 19,172 11,124
-------- -------- --------
Net income.............................. $ 18,014 $ 28,402 $ 16,687
======== ======== ========
Net income per share......................... $0.67 $1.05 $0.61
Weighted average number of common and
common equivalent shares outstanding (in
thousands) (assumes 27,000 shares
outstanding for periods prior to 1995).... 27,000 27,115 27,366
</TABLE>
See Notes to Consolidated Financial Statements.
F-4
<PAGE>
TOY BIZ, INC.
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
<TABLE>
<CAPTION>
ADDITIONAL
COMMON PAID-IN RETAINED
STOCK CAPITAL EARNINGS TOTAL
------ ----------- -------- ---------
(In thousands)
<S> <C> <C> <C> <C>
Balance at December 31, 1993............. -- $12,795 $ 3,488 $ 16,283
Compensatory stock option................ -- 4,091 -- 4,091
Exercise of stock option (Note 10)....... -- 28 -- 28
Net income for 1994...................... -- -- 18,014 18,014
------ ------- ------- --------
Balance at December 31, 1994............. -- 16,914 21,502 38,416
Proceeds from initial public offering.... $270 43,875 -- 44,145
Exercise of stock option................. -- 411 -- 411
Accretion of redeemable preferred stock.. -- (42) -- (42)
Net income for 1995...................... -- -- 28,402 28,402
------ ------- ------- --------
Balance at December 31, 1995............. 270 61,158 49,904 111,332
Proceeds from secondary offering......... 7 9,096 -- 9,103
Exercise of stock option................. -- 438 -- 438
Accretion of redeemable preferred stock.. -- (105) -- (105)
Net income for 1996...................... -- -- 16,687 16,687
------ ------- ------- --------
Balance at December 31, 1996............. $277 $70,587 $66,591 $137,455
====== ======= ======= ========
</TABLE>
See Notes to Consolidated Financial Statements.
F-5
<PAGE>
TOY BIZ, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
1994 1995 1996
--------------------------------
(In thousands)
<S> <C> <C> <C>
Net income............................................ $ 18,014 $ 28,402 $ 16,687
Adjustments to reconcile net income to net cash
provided by operating activities:
Depreciation and amortization..................... 8,609 12,750 16,078
Provision for deferred income taxes............... 2,811 696 (2,032)
Compensatory stock option......................... 4,091 -- --
Changes in operating assets and liabilities:
Accounts receivable............................. (34,571) (11,260) (20,843)
Inventories..................................... (9,913) 1,130 (3,740)
Prepaid expenses and other...................... 1,431 (2,378) (1,591)
Other assets.................................... 449 (17) (283)
Accounts payable................................ 2,399 3,656 1,407
Accrued expenses and other...................... 5,215 2,028 (6,838)
Due to affiliates............................... -- 517 --
-------- -------- --------
Net cash (used in) provided by operating activities... (1,465) 35,524 (1,155)
-------- -------- --------
Cash flow from investing activities:
Purchases of molds, tools and equipment............. (10,862) (9,591) (15,352)
Expenditures for product and package
design costs...................................... (6,369) (6,545) (8,213)
Acquisition of Spectra Star & Quest................. -- (9,004) --
-------- -------- --------
Net cash used in investing activities............... (17,231) (25,140) (23,565)
-------- -------- --------
Cash flow from financing activities:
Payment of notes to stockholder..................... -- (15,119) --
Exercise of stock option............................ 28 411 438
Net borrowings under credit agreement............... 17,000 (21,500) --
Borrowings from stockholder and affiliates.......... 1,099 -- --
Redemption of Preferred Stock....................... -- -- (1,440)
Proceeds from initial public offering............... -- 44,166 --
Proceeds from additional public offering............ -- -- 9,260
-------- -------- --------
Net cash provided by financing activities............. 18,127 7,958 8,258
-------- -------- --------
Net (decrease) increase in cash and cash equivalents.. (569) 18,342 (16,462)
Cash and cash equivalents at beginning of year........ 4,711 4,142 22,484
-------- -------- --------
Cash and cash equivalents at end of year.............. $ 4,142 $ 22,484 $ 6,022
======== ======== ========
Supplemental disclosure of cash flow information:
Interest paid during the period..................... $ 624 $ 2,335 $ 149
Income taxes paid during the period................. 5,878 16,410 16,156
Other non-cash transactions:
Issuance of preferred stock for Spectra Star,
including accretion of preferred dividend of $42
for 1995 and $105 for 1996 (See Note 12)............ -- 3,016 --
</TABLE>
See Notes to Consolidated Financial Statements.
F-6
<PAGE>
TOY BIZ, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1996
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Description of Business
Toy Biz, Inc. ("Toy Biz" or the "Company") was formed on April 30, 1993
pursuant to a Formation and Contribution Agreement ("Formation Agreement"),
entered into by the Predecessor Company, Mr. Isaac Perlmutter (the sole
stockholder of the Predecessor Company), Marvel Entertainment Group, Inc.
("Marvel") and Avi Arad ("Mr. Arad"). The Predecessor Company had been Marvel's
largest toy licensee. Toy Biz designs, markets and distributes boys', girls',
infant/preschool and activity toys based on popular entertainment properties and
consumer brand names. The Company also designs, markets and distributes its own
line of proprietary toys. The Predecessor Company was incorporated in 1990,
pursuant to an asset purchase agreement with Charan Industries, Inc.
In accordance with the Formation Agreement, the Predecessor Company
contributed all of its and an affiliate's assets ($23,335,000) and certain
specified liabilities ($21,949,000) to the Company for 44% of Toy Biz's capital
stock. Such specified liabilities included approximately $15,363,000 due to Mr.
Perlmutter and other affiliated companies of the Predecessor Company. A portion
of the assumed liabilities due to Mr. Perlmutter was paid in cash ($8,752,000)
and the remainder of the assumed liabilities due to Mr. Perlmutter was converted
into a promissory note ($6,611,000). Marvel made a capital contribution of
$500,000 for 46% of the Company's capital stock and a loan, in the form of a
note, of $8,507,000. In addition, Marvel granted the Company an exclusive,
perpetual and royalty-free license to design and distribute toys based on Marvel
characters. Pursuant to the Formation Agreement, in exchange for the
contribution to the Company of his interests in certain license agreements with
the Company and cash, Mr. Arad received 10% of the Company's capital stock. In
addition, the Company granted Mr. Arad the Arad Stock Option (the "Option") to
acquire an additional 10% of the Company's capital stock (see Note 10 regarding
the Option and its subsequent exercise). Mr. Arad also agreed to enter into the
Arad Consulting Agreement and the Master License Agreement.
Basis of Presentation
The consolidated financial statements include the accounts of the Company
and its subsidiary in Hong Kong. Upon consolidation, all significant
intercompany accounts and transactions are eliminated.
Use of Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. The principal areas of judgement relate to provisions for
returns and other sales allowances, and doubtful accounts, and the realizability
of inventories, molds, tools and equipment, and product and package design
costs. Actual results could differ from those estimates.
F-7
<PAGE>
TOY BIZ, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
DECEMBER 31, 1996
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES--(CONTINUED)
Cash Equivalents
The Company considers all highly liquid investments with a maturity of
three months or less when purchased to be cash equivalents.
Inventories
Inventories are valued at the lower of cost (first-in, first-out method) or
market.
Molds, Tools, and Equipment
Molds, tools and equipment are stated at cost less accumulated depreciation
and amortization. The Company owns the molds and tools used in production of
the Company's products by third-party manufacturers. At December 31, 1996,
certain of these costs related to products that were not yet in production or
were not yet being sold by the Company. For financial reporting purposes,
depreciation and amortization is computed by the straight-line method over a
three year period (the estimated life) for molds and tooling costs and over the
useful life for furniture and fixtures and office equipment. On an ongoing
basis the Company reviews the lives and carrying value of molds and tools based
on the sales and operating results of the related products. If the facts and
circumstances suggest a change in useful lives or an impairment in the carrying
value, the useful lives are adjusted and unamortized costs are written off
accordingly. Write-offs, in excess of normal amortization, which are included
in depreciation and amortization on the accompanying Consolidated Statements of
Income for the years ended December 31, 1994, 1995 and 1996 were approximately
$461,000, $636,000 and $364,000, respectively.
Product and Package Design Costs
The Company capitalizes costs related to product and package design when
such products are determined to be commercially acceptable. Product design
costs include costs relating to the preparation of precise detailed mechanical
drawings and the production of sculptings and other handcrafted models from
which molds and dies are made. Package design costs include costs relating to
art work, modeling and printing separations used in the production of packaging.
At December 31, 1996, certain of these costs related to products that were not
yet in production or were not yet being sold by the Company. For financial
reporting purposes, depreciation and amortization of product and package design
is computed by the straight-line method over a three year period (the estimated
life). On an ongoing basis the Company reviews the useful lives and carrying
value of product and package design costs based on the sales and operating
results of the related products. If the facts and circumstances suggest a
change in useful lives or an impairment in the carrying value, the useful lives
are adjusted and unamortized costs are written off accordingly. Write-offs, in
excess of normal amortization, which are included in depreciation and
amortization on the accompanying Consolidated Statements of Income, for the
years ended December 31, 1994, 1995 and 1996 were approximately $807,000,
$1,276,000 and $1,164,000, respectively.
Goodwill and Other Intangibles
Goodwill is amortized over 40 years and other intangibles are amortized
over 3 years. For the years ended December 31, 1994, 1995 and 1996,
amortization of goodwill was $0, $68,000 and $245,000, respectively.
F-8
<PAGE>
TOY BIZ, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
DECEMBER 31, 1996
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES--(CONTINUED)
Research and Development
Research and development ("R&D") costs are charged to operations as
incurred. For the years ended December 31, 1994, 1995 and 1996, R&D expenses
were $2,829,000, $4,980,000 and $5,298,000, respectively.
Revenue Recognition
Sales are recorded upon shipment of merchandise and a provision for future
returns and other sales allowances is established based upon historical
experience and management estimates. Income from distribution fees and sub-
licensing of characters owned by the Company are recorded in accordance with the
distribution agreement and at the time characters are available to the licensee
and collection is reasonably assured. For the years ended December 31, 1994,
1995 and 1996, distribution fees and sub-licensing revenues were $782,000,
$5,730,000 and $13,637,000, respectively.
Advertising Costs
Advertising production costs are expensed when the advertisement is first
run. Media advertising costs are expensed on the projected unit of sales method
during interim periods. For the years ended December 31, 1994, 1995 and 1996,
advertising expenses were $15,667,000, $18,864,000 and $25,471,000,
respectively. At December 31, 1995 and 1996, the Company had incurred $474,000,
and $433,000, respectively, of prepaid advertising costs, principally related to
production of advertisement that will arise in fiscal 1996 and 1997,
respectively.
Royalties
Minimum guaranteed royalties, as well as royalties in excess of minimum
guarantees, are expensed based on sales of related products. The realizability
of minimum guarantees paid is evaluated by the Company based on the projected
sales of the related products.
Income Taxes
The Company uses the liability method of accounting for income taxes as
required by Statement of Financial Accounting Standards No. 109, "Accounting for
Income Taxes". Under this method, deferred tax assets and liabilities are
determined based on differences between financial reporting and the tax bases of
assets and liabilities and are measured using tax rates and laws that are
scheduled to be in effect when the differences are scheduled to reverse.
Income tax expense includes U.S. and foreign income taxes, including U.S.
Federal taxes on undistributed earnings of foreign subsidiaries to the extent
that such earnings are planned to be remitted.
F-9
<PAGE>
TOY BIZ, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
DECEMBER 31, 1996
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES--(CONTINUED)
Foreign Currency Translation
The financial position and results of operations of the Company's Hong Kong
subsidiary are measured using the U.S. dollar as the functional currency.
Assets and liabilities are translated at the exchange rate in effect at year-
end. Income statement accounts and cash flows are translated at the average
rate of exchange prevailing during the period. Translations adjustments, which
were not material, arising from the use of differing exchange rates are included
in the results of operations.
Income Per Share
Net income per common share is computed by dividing net income, less the
amount applicable to preferred dividends, by the weighted average common and
common equivalent shares outstanding during the year. When diluted, common
stock equivalents are included as stock equivalents using the treasury method.
Long-Lived Assets
In accordance with Financial Accounting Standards Board ("FASB") Statement
No. 121, "Accounting for the Impairment of Long-Lived Assets and for Long-Lived
Assets to be Disposed of", the Company records impairment losses on long-lived
assets used in operations, including intangible assets, when events and
circumstances indicate that the assets might be impaired and the undiscounted
cash flows estimated to be generated by those assets are less than the carrying
amounts of those assets.
2. SALES TO MAJOR CUSTOMERS AND INTERNATIONAL OPERATIONS
The Company primarily sells its merchandise to major retailers, principally
throughout the United States. Credit is extended based on an evaluation of the
customer's financial condition, and, generally, collateral is not required.
Credit losses are provided for in the financial statements and consistently have
been within management's expectation.
During the year ended December 31, 1994, three customers accounted for
approximately 31%, 18% and 13% of total net sales. During the year ended
December 31, 1995, three customers accounted for approximately 29%, 19% and 12%
of total net sales. During the year ended December 31, 1996, two customers
accounted for approximately 23% and 18% of total net sales.
The Company's Hong Kong subsidiary supervises the manufacturing of the
Company's products in China and sells such products internationally. All sales
are made F.O.B. Hong Kong against letters of credit. During the years ended
December 31, 1994, 1995 and 1996, international sales were approximately 9%,
11% and 20%, respectively, of total net sales. During those periods, the Hong
Kong operations reported operating income of approximately $3,009,000,
$6,642,000, and $18,880,000 and income before income taxes of $3,003,000,
$6,721,000 and $19,079,000, respectively. At December 31, 1995 and 1996 the
Company had assets in Hong Kong of approximately $13,915,000 and $29,342,000,
respectively, and the Hong Kong subsidiary represents $9,277,000 and
$24,785,000, respectively, of the Company's consolidated retained earnings.
F-10
<PAGE>
TOY BIZ, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
DECEMBER 31, 1996
<TABLE>
<CAPTION>
3. DETAILS OF CERTAIN BALANCE SHEET ACCOUNTS
(IN THOUSANDS)
DECEMBER 31
1995 1996
------------ --------
<S> <C> <C>
Accounts receivable, net, consists of the following:
Accounts receivable.............................................. $86,019 $110,932
Less allowances for:
Doubtful accounts.............................................. (516) (485)
Advertising, markdowns, returns, volume discounts
and other.................................................... (10,755) (14,856)
-------- --------
Total........................................................ $74,748 $95,591
========= ========
Inventories, net, consist of the following:
Finished goods................................................... $13,504 $16,918
Component parts, raw materials and
work-in-process................................................ 3,691 4,017
-------- --------
Total........................................................ $17,195 $20,935
======== ========
Molds, tools and equipment, net, consists of the following:
Molds, tools and equipment....................................... $20,921 $23,055
Office equipment and other....................................... 1,628 4,092
Less accumulated depreciation and amortization................... (10,447) (9,467)
----------- --------
Total........................................................ $12,102 $17,680
=====================
Product and package design costs, net, consists of the following:
Product design costs............................................. $9,854 $10,047
Package design costs............................................. 3,675 3,612
Less accumulated amortization.................................... (6,558) (4,376)
-------- --------
Total........................................................ $6,971 $9,283
======== ========
Goodwill and other intangibles, net, consists of the following:
Goodwill......................................................... $9,815 $9,815
Patents and other intangibles.................................... 409 692
Less accumulated amortization.................................... (123) (526)
-------- --------
Total........................................................ $10,101 $9,981
======== ========
Accrued expenses and other consists of the following:
Accrued advertising costs........................................ $9,459 $7,330
Accrued royalties................................................ 3,956 180
Income taxes payable............................................. 7,374 4,343
Deferred income.................................................. 179 134
Other accrued expenses........................................... 8,072 10,372
-------- --------
Total........................................................ $29,040 $22,359
======== ========
</TABLE>
F-11
<PAGE>
TOY BIZ, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
DECEMBER 31, 1996
4. RELATED PARTY TRANSACTIONS
The notes payable--stockholders were paid with proceeds from the Initial
Public Offering (as defined below) in March, 1995. Interest accrued at the
prime rate, as defined, and was payable at maturity. Interest expense on the
notes amounted to approximately $1,099,000 and $235,000 for the years ended
December 31, 1994 and 1995, respectively, and was added to the notes.
Marvel provides significant support to the Company relating to licensing
agreements, promotion, legal and financial matters. The cost for these support
services has been included in selling, general and administrative expenses, and
amounted to $498,000, $306,000 and $262,000 for the years ended December 31,
1994, 1995 and 1996, respectively. At December 31, 1996, the Company had a
receivable from Marvel of $165,000.
The Company and Marvel have entered into an exclusive license agreement
pursuant to which Marvel may use the Toy Biz trademark on online services and
electronic networks, including the Internet. The license is limited to Marvel-
related products of the Company. Marvel paid the Company $500,000 for such
license.
An affiliate of the Company, which is wholly-owned by Mr. Perlmutter, acts
as the Company's media consultant in placing the Company's advertising and, in
connection therewith, receives certain fees and commissions based on the cost of
the placement of such advertising. During the years ended December 31, 1994,
1995 and 1996 the Company paid fees and commissions to the affiliate totalling
approximately $859,000, $970,000 and $965,000, respectively, relating to such
advertisements.
The Company sold merchandise to a subsidiary of Marvel totalling $429,000,
$1,616,000 and $324,000 for the years ended December 31 1994, 1995 and 1996,
respectively. Related receivables were $945,000 and $207,000 as of December 31,
1995 and 1996, respectively. These amounts were subsequently collected.
During the years ended December 31, 1994, 1995 and 1996, the Company
accrued royalties to Mr. Arad for toys he invented or designed of $6,541,000,
$5,734,000 and $1,848,000, respectively. At December 31, 1996 the Company had a
receivable from Mr. Arad for $505,000 related to reimbursement of expenses.
The Company shares office space and certain general and administrative
costs with affiliated entities. The Company paid rent to the affiliated entity;
however, this was not subject to a formal sublease agreement. In 1994, the
lease was amended and the Company become the lessee. Rent paid to the
affiliated entity amounted to approximately $128,000 for the year ended December
31, 1994. Rent received from affiliates was $155,000, $172,000 and $109,000 for
the years ended December 31, 1994, 1995 and 1996. While certain costs are not
allocated among the entities, the Company believes that it bears its
proportionate share of these costs.
F-12
<PAGE>
TOY BIZ, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
DECEMBER 31, 1996
5. COMMITMENTS AND CONTINGENCIES
Leases: The Company is a party to various noncancelable operating leases
involving office and warehouse space expiring on various dates from February 28,
1997 through March 31, 2006. The leases are subject to escalations based on
cost of living adjustments and tax allocations. Minimum future obligations on
these leases are as follows:
<TABLE>
<S> <C>
1997 $ 347,000
1998 156,000
1999 172,000
2000 172,000
2001 172,000
Thereafter 440,000
----------
$1,459,000
==========
</TABLE>
Rent expense amounted to approximately $406,000, $522,000 and $788,000 for
the years ended December 31, 1994, 1995 and 1996, respectively. See Note 4
regarding sublease income.
The Company is a party to various royalty agreements with future guaranteed
payments through 1999. Minimum future obligations are as follows:
<TABLE>
<S> <C>
1997 $1,757,000
1998 1,569,000
1999 325,000
----------
$3,651,000
==========
</TABLE>
Legal Matters: On December 28, 1995 G.D.L. Management Incorporated ("GDL")
commenced an action against the Company, Mr. Perlmutter and the Predecessor
Company in the Supreme Court of the State of New York, County of New York. The
amended complaint in that action, which was served on March 19, 1996, alleges
that GDL is entitled to receive ten percent of the capital stock of the
Predecessor Company pursuant to a 1990 agreement between GDL and Mr. Perlmutter
and seeks money damages based on the value of ten percent of the Company's Class
A Common Stock beneficially owned by Mr. Perlmutter and a variety of equitable
remedies, including an order rescinding the 1993 transfer of the assets of the
Predecessor Company to the Company pursuant to the Formation and Contribution
Agreement. Mr. Perlmutter has denied all of the material allegations made in
support of GDL's claims, and pursuant to the Formation and Contribution
Agreement, agreed to indemnify the Company in respect to any liability arising
from GDL's claims. The Company does not believe that any of the claims made
against it will have a material adverse effect on its financial position because
it believes that all of the claims against it are without merit and because of
the indemnity provided to it in the Formation and Contribution Agreement.
The Company is also involved in various legal proceedings arising in
the normal course of business. Management believes that the final outcome of
these proceedings will not have a significant adverse effect on the Company's
results of operations or financial position.
F-13
<PAGE>
TOY BIZ, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
DECEMBER 31, 1996
6. INCOME TAXES
The provision (benefit) for income taxes for the years ended December 31,
1994, 1995 and 1996 is summarized as follows:
<TABLE>
<CAPTION>
1994 1995 1996
----------- ----------- --------------
<S> <C> <C> <C>
CURRENT:
Federal $ 7,222,000 $15,429,000 $ 8,474,000
State 2,225,000 1,923,000 1,943,000
Foreign 3,000 1,124,000 2,739,000
----------- ----------- -------------
$ 9,450,000 $18,476,000 $ 13,156,000
DEFERRED:
Federal $ 2,192,000 $ 543,000 ($ 1,586,000)
State 619,000 153,000 (446,000)
----------- ----------- -------------
2,811,000 696,000 (2,032,000)
----------- ----------- -------------
PROVISION FOR INCOME TAXES: $12,261,000 $19,172,000 $ 11,124,000
=========== =========== =============
</TABLE>
The differences between statutory Federal income tax rate and the effective
tax rate for the years ended December 31, 1994, 1995 and 1996 are attributable
to the following:
<TABLE>
<CAPTION>
1994 1995 1996
----- ----- -----
<S> <C> <C> <C>
Federal income tax provision
computed at the statutory rate 35.0% 35.0% 35.0%
State taxes, net of Federal income
tax effect 5.5% 5.3% 5.0%
----- ----- -----
40.5% 40.3% 40.0%
===== ===== =====
</TABLE>
Deferred income taxes reflect the net tax effects of temporary differences
between the carrying amounts of assets and liabilities for financial reporting
purposes and the amounts used for income tax purposes. Significant components
of the Company's deferred tax assets at December 31, 1995 and 1996 are as
follows:
<TABLE>
<CAPTION>
1995 1996
----------- -----------
<S> <C> <C>
Allowance for future returns, other sales
allowances and doubtful accounts and
other allowances $1,377,000 $1,620,000
Inventory valuation 1,842,000 2,861,000
Depreciation 983,000 1,762,000
Amortization (61,000) (70,000)
------------ ----------
$4,141,000 $6,173,000
============ ==========
</TABLE>
F-14
<PAGE>
TOY BIZ, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
DECEMBER 31, 1996
7. CREDIT FACILITY
The Company has a $30,000,000 revolving credit facility (the "Credit
Facility") with a syndicate of banks with The Chase Manhattan Bank (formerly
named Chemical Bank) as administrative agent. The Credit Facility matures on
February 21, 1998; however, the Company may voluntarily reduce the commitment
from time to time with appropriate notice to the administrative agent for the
syndicate of banks. Borrowings under the Credit Facility are collateralized by
substantially all Company assets. Borrowings under the Credit Facility bear
interest at either The Chase Manhattan Bank's alternate base rate or at the
Eurodollar rate plus the applicable margin (as defined).
The Credit Facility contains various financial covenants, as well as
restrictions, on new indebtedness, prepaying or amending subordinated debt,
acquisitions and similar investments, the sale or transfer of assets, capital
expenditures, limitations on restricted payments, dividends, issuing guarantees
and creating liens. The Credit Facility also requires an annual reduction,
commencing January 1, 1996, of outstanding borrowings to zero for a period of 45
consecutive days, commencing during the first six months of each calendar year.
In addition, the Credit Facility also requires that (a) Marvel continue to
control the Company and (b) the toy license agreement between the Company and
Marvel remain in effect. The Credit Facility is not guaranteed by Marvel.
Certain indebtedness of Marvel and Marvel's direct and indirect parent
companies impose restrictions that limit the ability of Marvel and its
subsidiaries, including the Company, to incur debt, make restricted payments,
enter into transactions with affiliates and sell or transfer assets.
The interest rate for borrowing as of December 31, 1995 and 1996 was 8.5%
and 8.25%, respectively and the weighted average interest rate for 1995 and 1996
was 8.8% and 8.27%, respectively. The maximum amounts outstanding during 1995
and 1996 were $21,500,000 and $4,000,000, respectively. The amount available
under the Credit Facility at December 31, 1996 was $30,000,000. The Credit
Facility requires the Company to pay a commitment fee of 3/8 of 1% per annum on
the unused portion.
8. CAPITAL STOCK STRUCTURE
In addition to Class A and Class B common stock shown on the accompanying
balance sheet, the Company has authorized 2,500 shares of preferred stock, par
value $.01.
Two shares of Class B Common Stock are owned of record by voting trusts of
which Messrs. Perlmutter and Arad are trustees and Marvel is the sole
beneficiary. Each of Messrs. Perlmutter and Arad will have the right to vote
the share of Class B Common Stock held by voting trust in his absolute
discretion until the termination of such trust. Certain fundamental
transactions will require the unanimous consent of the holders of Class B Common
Stock voting as a class.
The Class B Common Stock has ten votes for each share outstanding for most
matters brought to a vote of the stockholders; whereas, the Class A Common Stock
has only one vote per share on such matters.
On March 2, 1995, the Company completed an initial public offering
(the "Offering") by issuing 2,750,000 new shares of its Class A Common Stock at
$18.00 per share. The net proceeds of the Offering to the Company ($44,145,000)
were used to repay notes payable to the principal shareholders and to increase
working capital. As part of the Offering, Mr. Arad sold 700,000 shares of Class
A Common Stock owned by him to pay taxes due in connection with the exercise of
a stock option. See Note 10.
F-15
<PAGE>
TOY BIZ, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
DECEMBER 31, 1996
8. CAPITAL STOCK STRUCTURE--(CONTINUED)
On August 13, 1996, the Company completed an additional public offering by
issuing 700,000 new shares of Class A Common Stock at $15.00 per share. As part
of such offering, Marvel Entertainment Group, Inc. ("Marvel"), a principal
stockholder, also sold 2,500,000 shares of Class A Common Stock. The Company
intends to use the net proceeds from the sale of the new shares of Class A
Common Stock, of approximately $9.1 million, after deducting estimated fees and
expenses, to fund a portion of its capital commitment to Marvel Studios ("Marvel
Studios"), an entity to be formed with Marvel to facilitate the development of
television programming, feature films and other media and theatrical productions
based on Marvel characters. It is anticipated that the structure of Marvel
Studios may change. Pending such use, the net proceeds are being used for
working capital and general corporate purposes.
9. STOCK OPTIONS
The Company's 1995 Stock Option Plan (the "Plan") provides for the issuance
of Stock Options ("Options") and Stock Appreciation Rights ("SAR's") for up to
1,350,000 shares of the Company's Class A Common Stock at fair market value at
the time of grant. One-third of the Options become exercisable at the date of
the grant (the "Grant Date"), and the balance of the Options become exercisable
in equal increments on the first and second anniversaries of the Grant Date. No
SAR's have been granted and Options with respect to 186,321 shares are available
for future grants.
The Company has adopted the disclosure-only provisions of Statement of
Financial Accounting Standards No. 123 "Accounting for Stock Based Compensation"
(FAS 123). Accordingly, no compensation expense has been recognized for the
stock option plans. For purposes of FAS 123 pro forma disclosures, the
estimated fair value of the options is amortized to expense over the options'
vesting period. The Company's pro forma information follows:
<TABLE>
<CAPTION>
1995 1996
------- -------
<S> <C> <C>
Pro forma net income............ $25,433 $15,195
Pro forma net income per share.. $ 0.94 $ 0.55
==================================================
</TABLE>
The fair value for each option grant was estimated at the date of grant
using a Black Scholes option pricing model with the following weighted-average
assumptions for the various grants made during 1995 and 1996: risk free interest
rates from 5.26% to 7.19%; no dividend yield; expected volatility of .354 and
expected lives of three to five years.
F-16
<PAGE>
TOY BIZ, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
DECEMBER 31, 1996
9. STOCK OPTIONS --(CONTINUED)
The Black Scholes option valuation model was developed for use in
estimating the fair value of traded options which have no vesting restrictions
and are fully transferable. In addition, option valuation models require the
input of highly subjective assumptions including the expected stock price
volatility. Because the Company's employee stock options have characteristics
significantly different from those traded options, and because changes in the
subjective input assumptions can materially affect the fair value estimate in
management's opinion, the existing models do not necessarily provide a reliable
single measure of the fair value of its employee stock options.
<TABLE>
<CAPTION>
1995 1996
--------------------------- -------------------------
WEIGHTED-AVG. WEIGHTED-AVG.
OPTIONS EXERCISE PRICE OPTIONS EXERCISE PRICE
--------- -------------- --------- --------------
<S> <C> <C> <C> <C>
Outstanding at
beginning of year................ 0 995,602 18.183
Granted.......................... 1,049,000 18.173 195,250 17.111
Exercised........................ 20,130 18.000 22,664 18.000
Forfeited........................ 33,268 18.000 47,303 18.119
Outstanding at end of year....... 995,602 18.183 1,120,885 18.002
Exercisable at end of year....... 329,187 18.184 691,211 18.089
Weighted-average fair value of
options granted during the year.. 6.85 6.15
- ---------------------------------------------------------------------------------------
</TABLE>
Exercise prices for options outstanding as of December 31, 1996 ranged from
$15.00 to $22.625.
10. ARAD OPTION AGREEMENT
Pursuant to the Formation Agreement executed by the Company, Mr. Arad
received the Option to acquire an additional 278 shares of the Company's Class C
common stock at $100 per share, subsequently converted to 2,696,600 shares of
Class A common stock. The Option, which expires April 30, 1998, was exercisable
contingent upon the Company achieving certain operating results, as defined. At
the end of 1993, it became evident that the operating results necessary for the
Option to become exercisable would, in all likelihood, be achieved sometime in
1994. Therefore, the Company amended the Option so that it became exercisable
March 31, 1994. Based on an independent appraisal of the value of the Option,
the Company charged operations for the last quarter of 1993 $10,909,000 for this
compensatory stock option and operations for the three month period ended March
31, 1994 with the remainder of the value of the Option ($4,091,000). The
appraisal of the value of the Option, performed in April, 1994, determined the
value of the shares issuable on exercise of the Option to be $6.19 per share.
The appraisal applied market multiples of 1994 earnings estimates of publicly
traded companies considered to be comparable to the Company to the Company's
1994 projected earnings and considered the Company dependence on Mr. Arad and
the illiquid nature of the shares subject to the Option.
F-17
<PAGE>
TOY BIZ, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
DECEMBER 31, 1996
10. ARAD OPTION AGREEMENT--(CONTINUED)
On June 30, 1994, Mr. Arad exercised the stock option described above. In
connection with that exercise, the Company agreed to loan Mr. Arad (the "Option
Loan") an amount necessary to allow Mr. Arad to pay the incremental Federal,
state and local income tax liability that he incurred as a result of the vesting
and exercise of the Option. The Company advanced Mr. Arad $10,000 in 1994 under
the Option Loan. Mr. Arad repaid the $10,000 advance under the Option Loan upon
the consummation of the initial public offering and the pledge was released at
that time. See Note 8.
F-18
<PAGE>
TOY BIZ, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
DECEMBER 31, 1996
11. QUARTERLY FINANCIAL DATA (UNAUDITED)
Summarized quarterly financial information for the years ended December 31, 1995
and 1996 is as follows (dollars in thousands, except per share data):
<TABLE>
<CAPTION>
1995 1996
----------------------------------------------- --------------------------------------------
QUARTER ENDED MARCH 31 JUNE 30 SEPTEMBER 30 DECEMBER 31 MARCH 31 JUNE 30 SEPTEMBER 30 DECEMBER 31
----------------------------------------------- --------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Net Sales $27,888 $30,435 $58,687 $79,385 $38,369 $45,814 $83,437 $54,004
Gross Profit 14,490 18,420 32,227 42,861 18,636 22,875 42,988 20,670
Operating income (loss) 5,078 6,981 15,789 19,166 5,123 7,472 18,884 (4,264)
Net income (loss) 2,859 4,323 9,480 11,740 3,173 4,594 11,417 (2,497)
Net income (loss) per share $0.11 $ 0.16 $ 0.35 $ 0.43 $0.12 $ 0.17 $ 0.42 ($0.09)
Weighted average number
of common and common
equivalent shares out-
standing (in thousands) 27,000 27,000 27,193 27,199 27,201 27,134 27,398 27,761
</TABLE>
The income (loss) per common share computation for each quarter and the year are
separate calculations. Accordingly, the sum of the quarterly income (loss) per
common share amounts may not equal the income per common share for the year. The
fourth quarter includes pretax adjustments of $1,600,000 related to prior
quarter matters.
F-19
<PAGE>
TOY BIZ, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
DECEMBER 31, 1996
12. ACQUISITION
On September 11, 1995, pursuant to an Asset Purchase Agreement dated as of
August 17, 1995, as amended, between the Company and Spectra Star, Inc.
("Spectra Star"), the Company acquired certain assets and assumed certain
liabilities of Spectra Star (the "Acquisition"). Spectra Star is the leading
U.S. manufacturer and marketer of children's and performance kites. They also
manufacture other toy and recreation products, many of which feature popular
children's entertainment characters. The purchase price, including estimated
fees related to the Acquisition, totaled approximately $13.6 million, consisting
of approximately $10.6 million of cash and assumed liabilities and a maximum of
130,303 shares of Series A Preferred Stock (the "Preferred Stock") with a
maximum redemption value of $4.3 million. The Preferred Stock is convertible at
any time after March 10, 1996 at the option of the holders into 130,303 shares
of Class A Common Stock or cash at the then present value of the Preferred
Stock. During the year ended December 31, 1996, 53,030 shares of the Preferred
Stock were redeemed for cash at an aggregate present value of approximately $1.4
million. The present value of the Preferred Stock issued was approximately $1.7
million as of December 31, 1996. The Company utilized available cash to finance
the Acquisition and to redeem the Preferred Stock.
The Acquisition was accounted for using the purchase method of accounting. The
fair value of the assets acquired is summarized below.
<TABLE>
<CAPTION>
<S> <C>
Current assets...... $ 3,470
Non-current assets.. $ 521
Intangibles......... $ 9,566
-------
$13,557
=======
</TABLE>
The following unaudited pro forma consolidated financial information gives
effect to the Acquisition as if it occurred at the beginning of the periods
presented. These pro forma results include certain adjustments, such as
increased amortization, decreased interest expense and the elimination of a
discontinued product line, and are not necessarily indicative of what results
would have been had the Acquisition occurred at the beginning of the respective
periods.
<TABLE>
<CAPTION>
FOR THE YEAR
ENDED FOR THE YEAR ENDED
DECEMBER, 1994 DECEMBER, 1995
---------------- ------------------
<S> <C> <C>
Net Sales.......... $173,548 $210,762
Net Income......... $ 16,500 $ 27,680
Earning Per Share.. $ .60 $ 1.01
</TABLE>
F-20
<PAGE>
TOY BIZ, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(CONTINUED)
DECEMBER 31, 1996
13. OFFER TO ACQUIRE THE COMPANY
On October 17, 1996, Andrews Group Incorporated ("Andrews Group"), an
indirect parent of Marvel, announced that it had reached agreement with each of
Isaac Perlmutter and Avi Arad to purchase approximately 67% of the outstanding
Class A Common Stock for debt of Andrews Group and cash. Andrews Acquisition
Corp. ("Acquisition"), an affiliate of Andrews Group, made a subsequent proposal
to the Company's board of directors to acquire all remaining shares of Class A
Common Stock and, as part of such transaction, the Company would become a
wholly owned subsidiary of Marvel. On December 27, 1996, following approval by
an independent committee of the Company's board of directors (the "Independent
Committee"), the Company entered into an Agreement and Plan of Merger (the
"Merger Agreement") with Andrews Group and Acquisition, pursuant to which
Andrews Group would acquire the entire equity interest in the Company not
otherwise acquired from Isaac Perlmutter and Avi Arad, by means of a merger (the
"Merger") of the Company with and into Acquisition. The Andrews Group agreements
with each of Messrs. Perlmutter and Arad are subject to a number of significant
conditions, including the consummation of Andrews Group's investment in Marvel
pursuant to a Stock Purchase Agreement between Andrews Group and Marvel dated as
of December 27, 1996 (the "Stock Acquisition Agreement").
Andrews Group has since terminated the Stock Acquisition Agreement.
Accordingly, a condition to the obligations of Andrews Group and Acquisition to
consummate the Merger pursuant to the Merger Agreement will not be satisfied.
Andrews Group has further advised that Andrews Group does not intend to waive
such condition, and anticipates that the Merger will not be consummated. Because
such condition to consummation of the Merger will not be satisfied, the
conditions to the obligations of Andrews Group to consummate the transactions
contemplated by the agreements with Messrs. Perlmutter and Arad will not be
satisfied.
On December 27, 1996, Marvel and its subsidiaries filed a voluntary
position for reorganization under Chapter 11 of the U.S. Bankruptcy Code. All of
the Company Class B Common Stock (7,394,000 shares) is owned by Marvel. The
Class B Common Stock has ten votes for each share outstanding while such shares
are owned by Marvel, which effectively gives Marvel voting control for most
matters brought to a vote of the stockholders. See Note 8. While the Company was
not a participant of Marvel's bankruptcy filing, the final resolution of
Marvel's bankruptcy filing could result in change in control of the Company.
This could cause the Company's Credit Facility to be terminated. See Note 7. The
Company believes it could obtain a replacement credit facility if a termination
of the Credit Facility were to occur.
14. SUBSEQUENT EVENT
On March 25, 1997, the Company acquired Colorforms, Inc., a manufacturer of
vinyl stick-ons and other toy products. The purchase price was approximately
$5.0 million, excluding fees and expenses, consisting of approximately $2.9
million in cash paid at the closing and the assumption of approximately $2.1
million of the acquired company's accounts payable and accrued liabilities at
the closing date. The transaction will be accounted for as a purchase.
F-21
<PAGE>
TOY BIZ, INC.
SCHEDULE II
VALUATION AND QUALIFYING ACCOUNTS
<TABLE>
<CAPTION>
BALANCE CHARGED TO SALES CHARGED TO BALANCE
AT BEGINNING OR COSTS AND OTHER AT END
DESCRIPTION OF PERIOD EXPENSES ACCOUNTS DEDUCTIONS OF PERIOD
- ----------- ------------ ----------------- ---------- ----------- -----------
<S> <C> <C> <C> <C> <C>
Year Ended December 31, 1994,
Allowances included in Accounts
Receivable, Net:
Doubtful accounts $ 991,000 $ 30,000 (1) -- $ 505,000 $ 516,000
Advertising, markdowns, 8,530,000 15,493,000 (2) -- 14,270,000 9,753,000
returns, volume discounts,
and other
Year Ended December 31, 1995,
Allowances included in Accounts
Receivable, Net:
Doubtful accounts 516,000 443,000 (1) -- 443,000 516,000
Advertising, markdowns, 9,753,000 21,682,000 (2) -- 20,680,000 10,755,000
returns, volume discounts,
and other
Year Ended December 31, 1996,
Allowances included in Accounts
Receivable, Net:
Doubtful accounts 516,000 -- -- 31,000 485,000
Advertising, markdowns, 10,755,000 39,317,000 (2) -- 35,216,000 14,856,000
returns, volume discounts,
and other
</TABLE>
- --------------------------------------
(1) Charged to costs and expenses.
(2) Charged to sales.
F-22
<PAGE>
EXHIBIT 10.5
SUBLEASE
Sublease, dated as of December 19, 1996 between Gruner + Jahr USA
Publishing ("Sublessor"), having addresses at 685 Third Avenue, New York, New
York 10017 and 110 Fifth Avenue, New York, New York 10011, and Toy Biz, Inc.
("Sublessee"), having an address at 333 East 38th Street, 4th floor, New York,
New York 10016.
W I T N E S S E T H:
WHEREAS, American Home Products Corporation, predecessor-ininterest to
Leucadia National Corporation ("Overlandlord") entered into that certain lease
with Sublessor's predecessor-ininterest, Parents Magazine, as tenant thereunder,
dated March 21, 1980, as amended September 26, 1986 and January 12, 1990
(collectively, the "Lease Agreement"), a copy of which Lease Agreement is
annexed hereto as Exhibit A, covering, inter alia, 37,137 rentable square feet
of space on the 28th floor, 29th floor and 30th floor (entire floors) (the
"Premises") in the building located at 685 Third Avenue, New York, New York
10017 (the "Building"). (All capitalized terms not otherwise defined herein
shall have the meanings given them in the Lease Agreement.); and
WHEREAS, Sublessee desires to sublease the Premises from Sublessor and
Sublessor desires to sublease same to Sublessee upon the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties agree as follows:
1. Demise and Term.
(a) For and during the term established below, Sublessor
leases to Sublessee the Premises, as well as all of Sublessor's furniture,
fixtures, including, without limitation, file cabinets, and telephone equipment
therein.
(b) The term of this Sublease shall commence on the
Commencement Date (as hereinafter defined) and expire at midnight on June 29,
2000 (the "Expiration Date"), unless sooner canceled or otherwise terminated as
provided in the Lease Agreement (the "Term").
(c) The Commencement Date shall be the later to occur of (i)
May 1, 1997; (ii) the date upon which the consent of Overlandlord, pursuant to
Paragraph 2 below, is obtained; and (iii) the date upon which Sublessor has
vacated the Premises.
<PAGE>
(d) In the event that Sublessor has not delivered the Premises
to Sublessee on or before May 21, 1997, Sublessor shall pay to Sublessee, in
cash and upon written demand, a penalty of $2,300 for each day after May 21,
1997 that Sublessor has not delivered the Premises.
2. Consent of Overlandlord.
(a) Notwithstanding anything to the contrary set forth herein,
this Sublease shall be of no effect unless and until Overlandlord shall have
consented to this Sublease in accordance with the provisions of Paragraph 11 of
the Lease Agreement (the "Consent"). Sublessee shall promptly furnish such
references, financial and other information with respect to Sublessee and
Sublessee's principals as Overlandlord or Sublessor shall reasonably request.
(b) Sublessor shall not be obligated to obtain the Consent, or
to take any action to obtain the Consent, other than to apply to Overlandlord
for it. If, for any reason whatsoever, Overlandlord shall fail to deliver the
Consent within twenty (20) days of the complete execution and delivery of this
Sublease, then either of the parties hereto may terminate this Sublease on ten
(10) days' written notice given after the expiration of such twenty (20) day
period, but before the Consent has been delivered, and the parties shall be
released from all further obligations and liabilities hereunder. All amounts
theretofore paid by Sublessee on account of this Sublease, including, without
limitation, the Security (as hereinafter defined), shall be promptly returned to
Sublessee.
3. Use. Sublessee may use the Premises as general
administrative offices for its operations and for any other
purpose permitted by the Lease Agreement.
4. Rent.
(a) Sublessee shall pay to Sublessor an annual base rent of
$492,065.25, pro-rated for partial calendar years as set forth below ("Annual
Base Rent") in the equal monthly installments set forth below (the "Monthly Base
Rent"):
Year 1: May 1, 1997* to December 31, 1997,
$328,042.00* - ($41,005.25 per month);
Year 2: January 1, 1998 - December 31, 1998
$492,065.25 per year - ($41,005.25 per month);
- --------
* Assuming Commencement Date of May 1, 1997.
3
<PAGE>
Year 3: January 1, 1999 to December 31, 1999
$492,065.25 per year - ($41,005.25 per month);
Year 4: January 1, 2000 to June 29, 2000
$246,032.64 - ($41,005.25 per month)
(b) Sublessee shall not be responsible or liable for any
Additional Rent (including, without limitation, Taxes (except for New York City
Occupancy Taxes) on the Rent, or Operating Expenses) as contemplated in the
Lease Agreement, nor shall Sublessee be required to pay any additional sums for
the provision of the cleaning services set forth on Rider 2 to the Lease
Agreement or the security system presently used by Sublessor in the Premises, it
being the intention of the parties that the Annual Base Rent shall constitute
the only required payments and obligations (unless specifically provided to the
contrary elsewhere herein) from Sublessee to Sublessor.
(c) Contemporaneously with the signing of this Sublease,
Sublessee shall issue to Sublessor a Letter of Credit reasonably acceptable to
Sublessor, in an amount equal to one (1) years' Rent hereunder. Provided that
Sublessee is not in default of this Sublease and further provided that Sublessee
has paid Rent in an accurate and timely manner, then one-half of the Letter of
Credit shall be released to Sublessee after the payment of one year's Rent
("Security Deposit"). The Monthly Base Rent, payable commencing on the
Commencement Date, shall be paid in advance at least three (3) business days
prior to the date on which same is due and payable under the Lease Agreement.
All Rent shall be paid to Sublessor without setoff or deduction. Unpaid Rent
shall bear interest at the then prime lending rate published in the New York
Times on the immediately preceding Sunday, plus one percent (1%) from the date
due until paid. Sublessee's covenant to pay Rent shall be independent of every
other covenant in this Sublease. Annual Base Rent and Monthly Base Rent are
sometimes hereinafter collectively as "Rent".
(d) Notwithstanding anything to the contrary contained herein
or in the Lease Agreement, Sublessee shall be solely responsible for its
electricity expenses incurred in connection with the Premises. Sublessor
represents and warrants that electricity provided to the Premises is submetered
and that Sublessee shall pay Sublessor's actual costs for consumption beginning
on the Commencement Date, without markup, upcharge or service fee of any kind.
(e) There shall be no allowance to Sublessee for a diminution
of rental value and no liability on Sublessor's part by reason of inconvenience,
annoyance or injury to business arising from Overlandlord, Sublessor or others
making any changes, alterations, additions or improvements required by law or as
permitted by the Lease Agreement or any repairs or
4
<PAGE>
replacements in the Building or the Premises, or in or to fixtures,
appurtenances or equipment thereof; provided, however, if Sublessor shall
receive any such allowance under the Lease Agreement with respect to the
Premises, Sublessee shall receive such allowance.
(f) There shall be no additional charge for the use of
Sublessor's furniture, fixtures, including, without limitation, file cabinets,
telephone equipment and computer wiring, which computer wiring shall not be
removed by Sublessor from the Premises (collectively, the "Furniture") located
in or servicing the Premises. Sublessor makes no representations and/or
warranties with regard to the condition of the Furniture, all of which are
leased to Sublessee in AS IS condition. Sublessee shall be responsible to
maintain the Furniture in repair and in good working order equivalent to the
condition in which it was leased to Sublessee, normal wear and tear excepted.
(g) It is specifically understood and agreed that Sublessee
shall not assume any of Sublessor's obligations under the Security and Mail
Delivery Letter Agreements between Parents Magazine Enterprises and Brucarla
Building Corporation dated May 1, 1982, as amended October 13, 1995 (the
"Security and Mail Delivery Agreements"), it being the intention of Sublessor to
terminate the Security and Mail Delivery Agreements (to the extent applicable to
the Premises) in accordance with the provisions thereof.
5. Sublease Subject to Lease Agreement
(a) This Sublease is subject and subordinate to all of the
terms, covenants and conditions of the Lease Agreement. Sublessee shall not do,
or permit to be done, anything that would constitute a breach or violation of
any term, covenant, or condition of the Lease Agreement, whether or not it would
be otherwise permitted under this Sublease. Notwithstanding anything to the
contrary contained in this Sublease, Sublessee does not have any rights in
respect of the Premises greater than Sublessor's rights under the Lease
Agreement. A copy of the Lease Agreement has been delivered to and examined by
Sublessee.
(b) If for any reason, the term of the Lease Agreement shall
end prior to the Expiration Date of this Sublease, then Sublessee shall make
full and complete attornment to Overlandlord for the balance of the term of this
Sublease, at the option of Overlandlord at any time during the Sublessee's
occupancy of the Premises, which attornment shall be evidenced by an agreement
in form and substance reasonably satisfactory to Overlandlord, which Sublessee
agrees to execute and deliver at any time within five (5) days after request of
Overlandlord, its successors and assigns, and Sublessee waives the provisions of
any law now or hereafter in effect which may give Sublessee any right of
5
<PAGE>
election to terminate the Sublease or to surrender possession of the Premises in
the event any proceeding is brought by Overlandlord under the Lease Agreement to
terminate the Lease Agreement. Notwithstanding the foregoing, such attornment
agreement shall under no circumstances require Sublessee to assume any accrued
or future liabilities of Sublessor to Overlandlord.
6. Incorporation by Reference. All of the terms, covenants and
conditions contained in the Lease Agreement are incorporated by reference into
this Sublease, except where inconsistent with or modified by the terms of this
Sublease, and are also subject, without limiting such general exception, to the
following specific exceptions and/or modifications:
(a) Wherever used in the Lease Agreement, the words "Landlord"
and "Tenant", or words of similar import, shall be construed to mean,
respectively, "Sublessor" and "Sublessee"; the words "Lease", or words of
similar import, shall be construed to mean "Sublease"; the word "Rent", or words
of similar import, shall be construed to mean rent payable under this Sublease;
and the words "Term", "Commencement Date", and "Expiration Date", or words of
similar import, shall be construed to mean, respectively, the term and the dates
set for the beginning and the end of the term of this Sublease.
(b) To the extent possible, the provisions of the Lease
Agreement incorporated by reference into this Sublease shall be construed as
consistent with and complementary to the other provisions of this Sublease, but
in the event of any inconsistency, the provisions of this Sublease shall
control.
(c) Sublessee will look solely to Sublessor for performance of
the services and obligations specified in the Lease Agreement to be provided by
Overlandlord thereunder, including, without limitation, heat, ventilating and
air conditioning, repairs, restoration, alterations, reimbursement, cleaning,
elevator service, hot and cold water and light bulb replacement. To the best of
Sublessor's knowledge, all systems or service to the Premises are in good
working order and repair, and the existing heat, ventilating and air
conditioning systems, along with the electrical capacity, have been sufficient
to service the Premises for uses consistent with the provisions hereof. If
Overlandlord shall default or delay in the performance or observance of any of
its agreements or obligations under the Lease Agreement (including, but not
limited to, any obligation for the payment of money or to perform or furnish any
work, services or utilities at or to the Premises or the Building), Sublessor
shall have no obligation, liability or responsibility therefor to Sublessee and
Sublessor shall be excused from the performance or observance of the
corresponding obligation, if any, which may be owed by Sublessor to Sublessee
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under this Sublease. Notwithstanding the foregoing, under such circumstances,
Sublessor shall use reasonable efforts to provide, or cause Overlandlord to
provide, performance or observance of the obligation or obligations. Any
condition resulting from such default or delay by Overlandlord shall not
constitute an eviction, actual or constructive, of Sublessee, unless Sublessor
would be able to claim the same in the Lease Agreement. No such default or delay
shall excuse Sublessee from the performance or observance of any of its
obligations to be performed or observed under this Sublease or shall entitle
Sublessee to terminate this Sublease or to any reduction in or abatement of the
Rent or other charges provided for in this Sublease, unless Sublessor would be
able to claim the same in the Lease Agreement. In furtherance of the foregoing,
Sublessee does, to the extent permitted by law, and except for the negligence of
Sublessor, hereby waive any cause of action and any right to bring an action
against Sublessor by reason of any act or omission of Overlandlord under the
Lease Agreement. The foregoing waiver does not, and is not intended to, relieve
Sublessor of its obligation to demand from Overlandlord all service obligations
owed to Sublessor, as tenant, under the Lease Agreement. Sublessor shall appoint
a contact person for purposes of communicating issues concerning this Sublease.
(d) If Overlandlord shall default in the performances of any
of its obligations to Sublessor with respect to the Premises, and provided
Sublessee has knowledge of the same, Sublessee shall notify Sublessor in writing
of the nature of the default in question and request that Sublessor enforce its
rights against Overlandlord, but Sublessor shall have no obligation to bring any
action or proceeding to enforce Sublessor's rights against Overlandlord. If,
after written notice from Sublessee, Sublessor shall fail or refuse to take
appropriate action for the enforcement of Sublessor's rights against
Overlandlord with respect to the Premises within a reasonable time considering
the nature of Overlandlord's default, Sublessee shall have the right, at
Sublessee's sole cost and expense, to assert Sublessor's rights against
Overlandlord, but only if Sublessee (1) shall not then be in default under this
Sublease, (2) shall give notice to Sublessor before asserting any such rights
against Overlandlord and (3) shall defend, indemnify and hold Sublessor harmless
from and against any and all claims, actions, liabilities, losses, damages,
costs and expenses (including, but not limited to, court costs and reasonable
attorneys' fees) which Sublessor may incur by reason of such assertion of rights
by Sublessee against Overlandlord.
(e) In order to facilitate the coordination of the provisions
of this Sublease with those of the Lease Agreement, unless otherwise stated
herein, the time periods contained in provisions of the Lease Agreement that are
incorporated by reference into this Sublease and for which the same action must
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be or has been taken under the Lease Agreement (such as, for example and without
limitation, the time limit for the curing of a default under this Sublease that
is also a default under the Lease Agreement), are changed for the purpose of
incorporation by reference by shortening or lengthening that period in each
instance by three (3) business days so that in each instance Sublessee shall
have that much less time to observe or perform hereunder than Sublessor has as
the tenant under the Lease Agreement and Sublessor shall have that much more
time to observe, perform, consent, approve, or otherwise act hereunder than the
Overlandlord has under the Lease Agreement. Notwithstanding anything contained
in this subparagraph to the contrary, if the time period enumerated in the Lease
Agreement is three (3) days or less, the time for observance or performance
hereunder shall be reduced by one day. In instances in which the same action is
not required under both the Lease Agreement and this Sublease, the time periods
contained in provisions of the Lease Agreement that are incorporated by
reference are not changed.
(f) All notices, requests, approvals, waivers, consents,
deliveries, or other communications that either party is required or desires to
send to the other in connection with this Sublease shall be in writing, duly
executed by the party sending the notice, and sent by express, registered or
certified mail, return receipt requested, securely wrapped and with postage
prepaid, or by personal delivery, addressed as follows: (a) if to Sublessee, (i)
prior to the date on which Sublessee takes occupancy (the "Sublessee's Occupancy
Date"), to Sublessee's other address as Sublessee shall then have designated for
that purpose by notice to Sublessor and (ii) after the Sublessee's Occupancy
Date, to its address at the Premises, and (b) if to Sublessor, to Sublessor's
address set forth at the beginning of this Sublease. Notices shall be deemed
delivered when received or, if delivery is made and refused, when such delivery
is made. A notice given by counsel for Sublessor or Sublessee shall be deemed a
valid notice if addressed and sent in accordance with the provisions of this
subparagraph. Either party may designate, by similar written notice to the other
party, any other person or address for such purposes. Each of the parties hereto
waives personal or any other service other than as provided for in this
subparagraph. Notwithstanding the foregoing, either party hereto may give the
other party telegraphic notice of the need to make emergency repairs. Sublessor
shall provide courtesy copies to Sublessee of all notices received from
Overlandlord, both during the Term and prior to Sublessee's Occupancy Date.
(g) Whenever the approval or consent of Sublessor is
required under any provision of the Lease Agreement or this
Sublease, Sublessee shall first be required to obtain and furnish
to Sublessor the written approval or consent of Overlandlord and
then to obtain like approval or consent of Sublessor. Whenever
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Sublessor has agreed that a required approval or consent shall not be
unreasonably withheld or delayed (whether in this Sublease or pursuant to any
provision of the Lease Agreement incorporated herein), Sublessor may withhold
its approval or consent and/or it shall be deemed reasonable for Sublessor to
withhold or delay its approval or consent if Overlandlord shall have delayed or
refused to give any approval or consent which may be requested of it.
7. Condition of Premises
(a) Sublessee is leasing and accepts the Premises "AS IS",
reasonable wear and tear, natural deterioration, and casualty damage excepted.
Without limiting the generality of the foregoing, Sublessor shall have no
obligation to make, supply or perform any alterations, services, material,
fixtures, equipment, or decorations to the Premises, except that Sublessor has
agreed to shampoo the carpeting in the Premises prior to the Sublessee's
Occupancy Date. In entering into this Sublease, Sublessee has relied solely on
such investigations, examinations, and inspections as Sublessee has chosen to
make and Sublessee acknowledges that Sublessor has afforded Sublessee the
opportunity for full and complete investigations, examinations, and inspections.
(b) To the extent Sublessor has any rights under the Lease
Agreement to require Overlandlord to paint the Premises, at Sublessee's request,
Sublessor, on behalf of Sublessee, shall require such painting by Overlandlord
in accordance with the terms of the Lease Agreement.
8. Fire, Casualty or Condemnation. If any part of the Premises shall be
rendered untenantable by fire or other casualty, or shall be lawfully condemned,
the Annual Base Rent paid under this Sublease shall be reduced, in the same
proportion, if any, and for the same period, in which the Annual Base Rent under
the Lease Agreement shall be reduced. Sublessor shall not be responsible for
restoration nor for any inconvenience or annoyance to Sublessee or injury to
Sublessee's business resulting in any way from such damage or the repair or
restoration or for such condemnation. This Sublease will continue in full force
and effect, subject to the foregoing provisions and subject to Sublessor's
rights and the rights of Overlandlord to terminate the Lease Agreement as
provided in Paragraphs 9 and 10 thereof. Sublessor hereby extends to Sublessee
Sublessor's right to terminate that portion of the Lease Agreement applicable to
the Premises, under such circumstances in accordance with the following
procedure: Sublessee shall notify Sublessor that the circumstances pursuant to
which Sublessor has the right to terminate that portion of the Lease Agreement
applicable to the Premises in accordance with Paragraphs 9 and 10 thereof have
been satisfied. Sublessor shall, to the extent possible, inspect the Premises to
confirm
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Sublessee's determination. Upon such confirmation, Sublessor shall promptly
terminate that portion of the Lease Agreement applicable to the Premises.
9. Assignment and Subletting. Sublessee shall not assign, sell,
mortgage, pledge, or in any manner transfer this Sublease or any interest
therein, or permit any of the foregoing to occur involuntarily, by operation of
law, or otherwise, or sublet the Premises or any part or parts thereof, grant
any concession or license, or otherwise permit occupancy of all or any part of
the Premises by any person other than Sublessee.
10. No Waiver. The failure of Sublessor to insist upon the strict
performance or observance of any obligation of Sublessee under this Sublease or
to exercise any right or other remedy under or with respect to this Sublease
shall not be construed as a waiver or relinquishment for the future of that
obligation, right or other remedy of Sublessor. Sublessor's receipt and
acceptance of any Rent, or acceptance of performance by Sublessor of any
obligation, with knowledge of Sublessee's breach or default under this Sublease,
shall not be construed as a waiver of that breach or default. No waiver by
Sublessor of any provision of this Sublease shall be deemed to have been made
unless specifically expressed in a writing signed by Sublessor.
11. Brokers. Sublessor and Sublessee each represent to the other that
in the negotiation of this Sublease it dealt with no broker or brokers, other
than Heyden Panzer & Company and Newmark & Company Real Estate, Inc.,
respectively (collectively, the "Brokers"). Sublessor shall be solely
responsible for commissions due to the Brokers pursuant to a separate agreement.
Sublessee and Sublessor each hereby agrees to indemnify, defend, and hold each
other harmless from and against any and all claims, liabilities, suits, costs
and expenses including reasonable attorneys' fees and disbursements arising out
of any inaccuracy or alleged inaccuracy of the above representation. The
provisions of this Paragraph shall survive the expiration or sooner termination
of this Lease.
12. Changes. This Sublease cannot be changed, modified or
terminated in any manner other than by a written agreement
executed by both parties.
13. Successors and Assigns. Except as may be otherwise
specifically provided in this Sublease, the provisions of this
Sublease shall extend to, bind and inure to the benefit of the
parties hereto and their respective personal representatives,
heir, successors and permitted assigns.
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14. Interpretation.
(a) This Sublease shall be governed by and construed
in accordance with the laws of the State of New York.
(b) If any provision of this Sublease or the application
thereof to any person or circumstance shall, for any reason and to any extent,
be invalid or unenforceable, the remainder of this Sublease and the application
of that provision to other persons or circumstances shall not be affected but
rather shall be enforced to the extent permitted by law.
(c) The captions, headings and titles contained in
this Sublease, if any, are solely for convenience of reference
and shall not affect its interpretation.
(d) This Sublease shall be construed without regard to any
presumption or other rule requiring construction against the party causing this
Sublease to be drafted.
15. Execution and Delivery. The submission to Sublessee of this
Sublease shall not constitute an option or offer for the subleasing of the
Premises, and the execution and/or delivery of this Sublease by Sublessee shall
have no binding force or effect on Sublessor unless and until Sublessor shall
have executed this Sublease and a fully-executed counterpart thereof shall have
been delivered to Sublessee and the Consent shall have been delivered.
16. Representations and Warranties.
(a) Sublessee hereby represents and warrants to Sublessor that
as of the date hereof: (i) Sublessee has all necessary authorizations and
approvals, and full power and authority (1) to carry out its business as
presently conducted and as contemplated hereby to be conducted and (2) to
execute and deliver this Sublease and perform any actions in connection
therewith; (ii) the actions taken by Sublessee in connection with the execution
and delivery of this Sublease have been duly authorized by all necessary action
on the part of Sublessee; and (iii) the execution, delivery and performance of
this Sublease by Sublessee and the consummation of the transaction contemplated
hereby will not result in default under any term of any judgment, decree, order,
law, statute, rule, regulation, ordinance, certificate, permit or the like
applicable to Sublessee or its assets or any part thereof or by which Sublessee
or its assets are bound or affected.
(b) Sublessor hereby represents and warrants to Sublessee that
as of the date hereof: (i) Sublessor has all necessary authorizations and
approvals, and full power and authority (1) to carry out its business as
presently conducted and as contemplated hereby to be conducted and (2) to
execute and
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deliver this Sublease and perform any actions in connection therewith; (ii) the
actions taken by Sublessor in connection with the execution and delivery of this
Sublease have been duly authorized by all necessary action on the part of
Sublessor; and, (iii) the execution, delivery and performance of this Sublease
by Sublessor and the consummation of the transaction contemplated hereby will
not result in default under any term of any judgment, decree, order, law,
statute, rule, regulation, ordinance, certificate, permit or the like applicable
to Sublessor or its assets or any part thereof or by which Sublessor or its
assets are bound or affected.
17. Signage. Subject to applicable provisions of the Lease Agreement,
Sublessee may, at its sole cost and expense, remove Sublessor's existing
signage, if any, and replace same with Sublessee's signage, the design and
location of which shall be subject to Sublessor's prior reasonable approval.
18. Telephone/Facsimile Transmission Lines. Sublessee may install its
own telephone and facsimile transmission lines (the "T/Fax Lines") in the
Premises by making the necessary arrangements with the appropriate utilities.
Sublessee shall make its own arrangements with the local utility company
servicing same and pay all use and service charges therefor directly to such
company. Sublessor shall have no liability of any kind to Sublessee or any other
person or entity for damages, including consequential damages, or expenses
arising from or relating to any malfunction or other lack or interruption of
service, of the T/Fax Lines.
19. Sublessee's Additional Covenants. Sublessee also
covenants as follows:
(a) Sublessee hereby assumes and agrees to perform and comply
with all of the terms, covenants and conditions of the Lease Agreement on the
part of the tenant thereunder to be performed and observed, other than as
expressly set forth in this Sublease.
(b) Sublessee will not do or cause to be done or suffer or
permit any act or thing to be done or suffered which would or might constitute a
default under the Lease Agreement or cause the Lease Agreement or the rights of
Sublessor, as tenant thereunder, to be terminated or which would or might cause
Sublessor to become liable for any damages, costs, claims or penalties or would
or might increase the Base Rent, Adjusted Base Rent or Additional Rent or other
charges or obligations of Sublessor, as tenant under the Lease Agreement, or
would or might adversely affect or reduce any of Sublessor's rights or benefits
under the Lease Agreement.
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(c) Sublessee shall defend, indemnify and hold Sublessor
harmless from and against any and all claims, actions, liabilities, losses,
damages, costs and expenses (including, but not limited to, court costs and
reasonable attorneys' fees) arising from the negligent use or occupancy by
Sublessee of the Premises or the Building or from any work or thing done or any
condition created by or any other act or omission of Sublessee or its employees,
agents, contractors, visitors or licensees, in or about the Premises or any
other part of the Building or from a termination of the Lease Agreement
resulting from a default by Sublessee under this Sublease. The provisions of
this subparagraph 19(c) shall survive the expiration or earlier termination of
this Sublease.
20. Termination of Lease Agreement.
(a) In the event of and upon the termination or cancellation
of the Lease Agreement pursuant to any of the provisions thereof, whether or not
the Commencement Date of this Sublease shall have occurred, this Sublease shall
automatically expire and terminate and shall be of no further force and effect,
and Sublessee shall have no claim against Sublessor of any kind whatsoever,
except for a refund of any Security Deposit that may be due to it hereunder.
Under such circumstances, and upon the normal expiration or termination of this
Sublease, Sublessee shall have no liability or obligation whatsoever to remove
any of Sublessor's improvements or alterations to the Premises, nor to restore
any part or all of the Premises, to the extent not disturbed by Sublessee from
the Premises's condition.
(b) Sublessor will not intentionally commit an event of
default that would result in the termination of the Lease Agreement by
Overlandlord. To the best of Sublessor's knowledge, it is not in default of any
provisions of the Lease Agreement and will not be on the Commencement Date.
IN WITNESS WHEREOF, Sublessor and Sublessee have executed and delivered
this Sublease as of the date first above written.
Sublessee: Sublessor:
TOY BIZ, INC. GRUNER + JAHR USA PUBLISHING
By: By:
--------------------------- ----------------------------
Authorized Signatory Authorized Signatory
Name: Name:
------------------------- ---------------------------
Title: Title:
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EXHIBIT A
Lease Agreement
<PAGE>
PROFESSIONAL DATA MANAGEMENT, INC.
d/b/a 685 Third Avenue Co.
315 Park Avenue South
New York, New York 10010
January 9, 1997
Gruner + Jahr USA Publishing
685 Third Avenue
New York, New York 10017
Gentlemen:
Professional Data Management, Inc. d/b/a 685 Third Avenue Co., successor in
interest to American Home Products Corporation as Landlord under than certain
Lease dated as of March 21, 1980 with Parents Magazine, predecessor in interest
to Gruner + Jahr USA Publishing ("Tenant"), as amended, extended and modified,
hereby consents to the proposed Sublease by and between Tenant, as Sublandlord
and Toy Biz, Inc., as Subtenant, in respect of the 28th, 29th and 30th floors in
the Building located at 685 Third Avenue, New York, New York, upon the terms and
conditions contained in the form of Sublease annexed hereto, as modified by the
form of Modification of Sublease, also annexed.
Landlord's consent to the annexed Sublease does not constitute a consent to any
further subletting or assignment of the Premises subject to the Lease, which
consent must be obtained in each and any proposed instance.
Sincerely,
PROFESSIONAL DATA MANAGEMENT, INC.
By:
-----------------------------------
Mark Hornstein
Vice President and Treasurer
<PAGE>
EXHIBIT 10.20
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of May 7, 1996, between Toy Biz,
International, Ltd. (the "Company") and Alan Fine (the "Executive").
The Company wishes to employ the Executive, and the Executive wishes
to accept such employment, on the terms and conditions set forth in this
Agreement.
Accordingly, the Company and the Executive hereby agree as follows:
1. Employment, Duties and Acceptance.
1.1 Employment, Duties. The Company hereby employs the Executive for
the Term (as defined in Section 2.1), to render exclusive and full-time services
to the Company as President -Toy Biz International, Ltd. (reporting directly to
the Chief Executive Officer of the Company's parent company) or in such other
executive position as may be mutually agreed upon by the Company and the
Executive, and to perform such other duties consistent with such position as may
be assigned to the Executive by the Board of Directors or the Chief Executive
Officer.
1.2 Acceptance. The Executive hereby accepts such employment and
agrees to render the services described above. During the Term, the Executive
agrees to serve the Company faithfully and to the best of the Executive's
ability, to devote the Executive's entire business time, energy and skill to
such employment, and to use the Executive's best efforts, skill and ability to
promote the Company's interests. The Executive further agrees to accept
election, and to serve during all or any part of the Term, as an officer or
director of the Company and of any subsidiary or affiliate of the Company,
without any compensation therefor other than that specified in this Agreement,
if elected to any such position by the shareholders or by the Board of Directors
of the Company or of any subsidiary or affiliate, as the case may be.
1.3 Location. The duties to be performed by the Executive hereunder
shall be performed primarily at the office of the Company or in an office to be
established in the Lenox, Massachusetts area, subject to reasonable travel
requirements on behalf of the Company.
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2. Term of Employment.
2.1 The Term. The term of the Executive's employment under this
Agreement (the "Term") shall commence on May 7, 1996 and shall end on December
31, 1999 or such later date to which the Term is extended pursuant to Section
2.2.
2.2 Special Curtailment. The Term shall end earlier than the original
December 31, 1999 termination date provided in Section 2.1, if sooner terminated
pursuant to Section 4. Nonextension of the Term shall not be deemed to be a
wrongful termination of the Term or this Agreement by the Company pursuant to
Section 4.
3. Compensation; Benefits.
3.1 Salary. As compensation for all services to be rendered pursuant
to this Agreement, the Company agrees to pay the Executive during the Term a
base salary, payable bi-weekly in arrears, at the annual rate of not less than
$400,000, less such deductions or amounts to be withheld as required by
applicable law and regulations (the "Base Salary"). In the event that the
Company, in its sole discretion, from time to time determines to increase the
Base Salary, such increased amount shall, from and after the effective date of
the increase, constitute "Base Salary" for purposes of this Agreement. A Bonus
Pool (the "Bonus") will be established, as follows:
2% of F.O.B.-Hong Kong sales of TBI up to $25,000,000, plus 1% of
F.O.B.-Hong Kong sales of TBI over $25,000,000.
The Executive will make awards from the Bonus to himself and other Company
employees working directly for or with the Executive. Bonuses awarded will be
paid within ninety (90) days of calendar year-end and all awards will be subject
to the approval of the Company's management and auditors. The Bonus calculation
will start anew from the first dollar of the Company's F.O.B.-Hong Kong based
sales beginning on the commencement of the Term, and thereafter on each January
1 of the Term beginning January 1, 1997.
3.2 Bonus. In addition to the amounts to be paid to the Executive
pursuant to Section 3.1, the Executive will be eligible, upon the decision of
the Board of Directors and in the Board's sole discretion, to receive a
discretionary bonus with respect to each year of the Term in such amount as the
Board in its sole discretion may determine.
3.3 Business Expenses. The Company shall pay or
reimburse the Executive for all reasonable expenses actually
incurred or paid by the Executive during the Term in the
performance of the Executive's services under this Agreement,
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upon presentation of expense statements or vouchers or such other supporting
information as the Company customarily may require of its officers provided,
however, that the maximum amount available for such expenses during any period
may be fixed in advance.
3.4 Vacation. During the Term, the Executive shall be entitled to a
vacation period or periods taken in accordance with the vacation policy of the
Company during each year of the Term. Vacation time not used by the end of a
year shall be forfeited.
3.5 Fringe Benefits. During the Term, the Executive shall be entitled
to all benefits for which the Executive shall be eligible under any qualified
pension plan, 401(k) plan, group insurance or other so-called "fringe" benefit
plan which the Company provides to its employees generally, together with
executive medical benefits for the Executive, as from time to time in effect for
executives of the Company generally.
3.6 Additional Benefits. During the Term, the Executive shall be
entitled to such other benefits as are specified in Appendix I to this
Agreement.
4. Termination.
4.1 Death. If the Executive shall die during the Term, or if during
the Term the Executive shall become physically or mentally disabled, whether
totally or partially, such that the Executive is unable to perform the
Executive's services hereunder for a period aggregating one (1) month, the Term
shall terminate and no further amounts or benefits shall be payable hereunder.
4.2 Cause. In the event of gross neglect by the Executive of the
Executive's duties hereunder, conviction of the Executive of any felony,
conviction of the Executive of any lesser crime or offense involving the
property of the Company or any of its subsidiaries or affiliates, willful
misconduct by the Executive in connection with the performance of any material
portion of the Executive's duties hereunder, breach by the Executive of any
material provision of this Agreement, the Company may at any time by written
notice to the Executive terminate the Term and, upon such termination, this
Agreement shall terminate and the Executive shall be entitled to receive no
further amounts or benefits hereunder, except any as shall have been earned to
the date of such termination.
4.3 Severance. The Company may at any time give notice of
termination of Executive's services hereunder as of a date (not earlier than ten
(10) days from such notice) to be specified in such notice, and this Agreement
shall terminate on the date so specified; provided that, unless such notice is
given pursuant to Section 4.2, the Executive shall be entitled to receive his
salary and car allowance at the rates provided in
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Sections 3.1 and 3.6 hereof to the date on which termination shall take effect;
his salary and other benefits at the rates provided in Sections 3.1 and 3.6,
paid at the Company's option, in bi-weekly or monthly installments for a period
of (I) eighteen (18) months in the event such termination occurs during the one
(1) year period following commencement of the Term; and (II) twelve (12) months
in the event such termination occurs following the first anniversary and before
the expiration of the Term. In addition, the Executive shall receive a pro rata
portion of the Bonus for the year in which such termination occurs, which shall
be calculated by multiplying the F.O.B. sales value of accepted orders by the
Company as of the date of termination by the appropriate percentages as per
Paragraph 3.1 (the "Pro Rata Bonus"). Notwithstanding the foregoing, both
severance obligations and the Pro Rata Bonus shall be paid in the event of
termination as a result of a change of control involving the Company (which
shall be defined as a transaction, the resulting entity of which is not
controlled by the Company or its shareholders on the date hereof). Within ten
days of such termination, the Company shall pay Executive the Pro Rata Bonus.
All severance payments shall cease upon Executive beginning work as an employee
or consultant for any other entity, regardless of whether the Executive is
terminated for cause or otherwise.
5. Protection of Confidential Information; Non-Competition.
5.1 In view of the fact that the Executive's work for the Company will
bring the Executive into close contact with many confidential affairs of the
Company and its affiliates not readily available to the public, and plans for
future developments, the Executive agrees:
5.1.1 To keep and retain in the strictest confidence all confidential
matters of the Company and its affiliates, including, without limitation, "know
how", trade secrets, customer lists, pricing policies, operational methods,
technical processes, formulae, inventions and research projects, and other
business affairs of the Company and its affiliates, learned by the Executive
heretofore or hereafter, and not to disclose them to anyone outside of the
Company, either during or after the Executive's employment with the Company,
except in the course of performing the Executive's duties hereunder or with the
Company's express written consent; and
5.1.2 To deliver promptly to the Company on termination of the
Executive's employment by the Company, or at any time the Company may so
request, all memoranda, notes, records, reports, manuals, drawings, blueprints
and other documents (and all copies thereof) relating to the Company's or its
affiliates' businesses and all property associated therewith,
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which the Executive may then possess or have under the Executive's control.
5.2 During the Term, and for a period of one (1) year after he ceases
to be employed by the Company under this Agreement or otherwise, if such
cessation arises as a result of a circumstance described in Section 4.2, the
Executive shall not, directly or indirectly, enter the employ of, or render any
services to, any person, firm or corporation engaged in any business competitive
with the business of the Company or of any of its subsidiaries or affiliates;
the Executive shall not engage in such business on the Executive's own account;
and the Executive shall not become interested in any such business, directly or
indirectly, as an individual, partner, shareholder, director, officer,
principal, agent, employee, trustee, consultant, or in any other relationship or
capacity provided, however, that nothing contained in this Section 5.2 shall be
deemed to prohibit the Executive from acquiring, solely as an investment, up to
five percent (5%) of the outstanding shares of capital stock of any public
corporation, or during such one (1) year period, taking a position with a
business the main business of which is the sale of retail products to customers.
5.3 If the Executive commits a breach, or threatens to commit a
breach, of any of the provisions of Sections 5.1 or 5.2 hereof, the Company
shall have the following rights and remedies:
5.3.1 The right and remedy to have the provisions of this Agreement
specifically enforced by any court having equity jurisdiction, it being
acknowledged and agreed that any such breach or threatened breach will cause
irreparable injury to the Company and that money damages will not provide an
adequate remedy to the Company; and
5.3.2 The right and remedy to require the Executive to account for and
pay over to the Company all compensation, profits, monies, accruals, increments
or other benefits (collectively "Benefits") derived or received by the Executive
as the result of any transactions constituting a breach of any of the provisions
of the preceding paragraph, and the Executive hereby agrees to account for and
pay over such Benefits to the Company. Each of the rights and remedies
enumerated above shall be independent of the other, and shall be severally
enforceable, and all of such rights and remedies shall be in addition to, and
not in lieu of, any other rights and remedies available to the Company under law
or in equity.
5.4 If any of the covenants contained in Sections 5.1 or 5.2, or any
part thereof, hereafter are construed to be invalid or unenforceable, the same
shall not affect the remainder of the covenant or covenants, which shall be
given full effect, without regard to the invalid portions.
5
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5.5 If any of the covenants contained in Sections 5.1 or 5.2, or any
part thereof, are held to be unenforceable because of the duration of such
provision or the area covered thereby, the parties agree that the court making
such determination shall have the power to reduce the duration and/or area of
such provision and, in its reduced form, said provision shall then be
enforceable.
5.6 The parties hereto intend to and hereby confer jurisdiction to
enforce the covenants contained in Sections 5.1 and 5.2 upon the courts of any
state within the geographical scope of such covenants. In the event that the
courts of any one or more of such states shall hold such covenants wholly
unenforceable by reason of the breadth of such covenants or otherwise, it is the
intention of the parties hereto that such determination not bar or in any way
affect the Company's right to the relief provided above in the courts of any
other states within the geographical scope of such covenants as to breaches of
such covenants in such other respective jurisdictions, the above covenants as
they relate to each state being for this purpose severable into diverse and
independent covenants.
5.7 In the event that any action, suit or other proceeding in law or
in equity is brought to enforce the covenants contained in Sections 5.1 and 5.2
or to obtain money damages for the breach thereof, and such action results in
the award of a judgment for money damages or in the granting of any injunction
in favor of the Company, all expenses (including reasonable attorneys' fees) of
the Company in such action, suit or other proceeding shall (on demand of the
Company) be paid by the Executive. In the event the Company fails to obtain a
judgment for money damages or an injunction in favor of the Company, all
expenses (including reasonable attorneys' fees) of the Executive in such action,
suit or other proceeding shall (on demand of the Executive) be paid by the
Company.
6. Inventions and Patents.
6.1 The Executive agrees that all processes, technologies and
inventions (collectively, "Inventions"), including new contributions,
improvements, ideas and discoveries, whether patentable or not, conceived,
developed, Invented or made by him during the Term shall belong to the Company,
provided that such Inventions grew out of the Executive's work with the Company
or any of Its subsidiaries or affiliates, are related in any manner to the
business (commercial or experimental) of the Company or any of its subsidiaries
or affiliates or are conceived or made on the Company's time or with the use of
the Company's facilities or materials. The Executive shall further: (a) promptly
disclose such Inventions to the Company; (b) assign to the Company, without
additional compensation, all patent and other rights to such Inventions for the
United States and foreign
6
<PAGE>
countries; (c) sign all papers necessary to carry out the foregoing; and (d)
give testimony in support of the Executive's inventorship.
6.2 If any Invention is described in a patent application or is
disclosed to third parties, directly or indirectly, by the Executive within one
(1) year after the termination of the Executive's employment by the Company, if
is to be presumed that the Invention was conceived or made during the Term.
6.3 The Executive agrees that the Executive will not assert any rights
to any Invention as having been made or acquired by the Executive prior to the
date of this Agreement, except for Inventions, if any, disclosed to the Company
in writing prior to the date hereof.
7. Intellectual Property.
The Company shall be the sole owner of all the products and proceeds
of the Executive's services hereunder, including, but not limited to, all
materials, ideas, concepts, formats, suggestions, developments, arrangements,
packages, programs and other intellectual properties that the Executive may
acquire, obtain, develop or create in connection with and during the Term, free
and clear of any claims by the Executive (or anyone claiming under the
Executive) of any kind or character whatsoever (other than the Executive's right
to receive payments hereunder). The Executive shall, at the request of the
Company, execute such assignments, certificates or other instruments as the
Company may from time to time deem necessary or desirable to evidence,
establish, maintain, perfect, protect, enforce or defend its right, title or
interest in or to any such properties.
8. Indemnification.
The Company will indemnify the Executive, to the maximum extent
permitted by applicable law, against all costs, charges and expenses incurred or
sustained by the Executive in connection with any action, suit or proceeding to
which the Executive may be made a party by reason of the Executive being an
officer, director or employee of the Company or of any subsidiary or affiliate
of the Company.
9. Notices.
All notices, requests, consents and other communications required or
permitted to be given hereunder shall be in writing and shall be deemed to have
been duly given if delivered personally, sent by overnight courier or mailed
first class, postage prepaid, by registered or certified mail (notices mailed
shall be deemed to have been given on the date mailed), as
7
<PAGE>
follows (or to such other address as either party shall designate by notice in
writing to the other in accordance herewith):
If to the Company, to:
Toy Biz, Inc.
333 East 38th Street
New York, New York 10016
Attention: President
If to the Executive, to:
Alan Fine
9 Cliffwood Street
Lenox, MA 01240
10. General.
10.1 This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York applicable to agreements made
and to be performed entirely in New York.
10.2 The section headings contained herein are for reference purposes
only and shall not in any way affect the meaning or interpretation of this
Agreement.
10.3 This Agreement sets forth the entire agreement and understanding
of the parties relating to the subject matter hereof and supersedes all prior
agreements, arrangements and understandings, written or oral, relating to the
subject matter hereof. No representation, promise or inducement has been made by
either party that is not embodied in this Agreement, and neither party shall be
bound by or liable for any alleged representation, promise or inducement not so
set forth.
10.4 This Agreement, and the Executive's rights and obligations
hereunder, may not be assigned by the Executive. The Company may assign its
rights, together with its obligations, hereunder (i) to any affiliate or (ii) to
third parties in connection with any sale, transfer or other disposition of all
or substantially all of its business or assets; in any event the obligations of
the Company hereunder shall be binding on its successors or assigns, whether by
merger, consolidation or acquisition of all or substantially all of its business
or assets.
10.5 This Agreement may be amended, modified, superseded, canceled,
renewed or extended and the terms or covenants hereof may be waived, only by a
written instrument executed by both of the parties hereto, or in the case of a
waiver, by the party waiving compliance. The failure of either
8
<PAGE>
party at any time or times to require performance of any provision hereof shall
in no manner affect the right at a later time to enforce the same. No waiver by
either party of the breach of any term or covenant contained in this Agreement,
whether by conduct or otherwise, in any one or more instances, shall be deemed
to be, or construed as, a further or continuing waiver of any such breach, or a
waiver of the breach of any other term or covenant contained in this Agreement.
11. Subsidiaries and Affiliates.
11.1 As used herein, the term "subsidiary" shall mean any corporation
or other business entity controlled directly or indirectly by the corporation or
other business entity in question, and the term "affiliate" shall mean and
include any corporation or other business entity directly or indirectly
controlling, controlled by or under common control with the corporation or other
business entity in question.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
TOY BIZ INTERNATIONAL, LTD.
By: _______________________________________
Executive:
_____________________________________(SEAL)
Alan Fine
9
<PAGE>
APPENDIX I
Additional Benefits:
1. The Executive shall be entitled to an automobile allowance of
________________________________ ($____________) per month, payable in
accordance with the Company's regular policy.
2. The Executive shall be entitled to stock options commensurate with
the Executive's position, but in no event less than thirty thousand (30,000)
stock options. The exercise price for such options shall be the closing price of
the stock on the date of the grant, but in no event less than $18.00 per share.
3. Within thirty (30) days following the commencement of the term,
Executive shall be paid a one time only signing bonus of Seventy-Five Thousand
Dollars ($75,000), subject to normal and customary tax withholding.
4. Provided that a closing occurs prior to the expiration or
termination of the term of this Agreement, and upon submission of sufficient
proof (as hereafter described), Executive shall be paid a one time bonus of up
to, but not exceeding, One Hundred Eighty Thousand Dollars ($180,000),
reflecting loss upon a sale of Executive's primary residence located in Lenox,
Massachusetts. Sufficient proof of loss shall be defined as that amount
determined to be loss upon sale of such principal residence and indicated or to
be indicated on Executive's federal income tax return for the tax year in which
such transaction occurs.
10
<PAGE>
EXHIBIT 10.29
February 14, 1997
Mr. Avi Arad
Arad & Associates
1698 Post Road East
Westport, CT 06880
Dear Avi:
In order to insure that there are no misunderstandings regarding the
royalty stream to Avi Arad & Associates it is in everyone's best interest to
clarify what I believe to be our existing understanding as well as the impact of
the contemplated Marvel transaction.
First, as has been our practice, we will continue to document those items
which the company deeply discounts or "closes out." We have never accrued or
paid royalties on these items.
Second, there are several Marvel items in the 1996 line which were
developed internally and for which no royalties are due. As we have previously
discussed, while the company saved the royalty component on these sales by
developing them internally, the items were not as exciting or successful as we
would hope. I have asked you and, in fact you have, become closely involved in
the development of the 1997 Marvel line. Subject to further review on both our
parts and except in very limited circumstances, it is the company's
understanding that you are due royalties on the 1997 Marvel line since you are
the primary developer/inventor.
Third, we have adjusted the royalty rate on all Marvel items on which you
are due a royalty to 4% on a worldwide basis. As you are aware, our agreement to
this rate was apparently not communicated to our Accounting Department but all
adjustments have been properly recorded. Obviously, for non-Marvel items we will
continue to negotiate each item on a "stand alone", item by item basis.
<PAGE>
Finally, I believe we are in agreement regarding the Battle Builder's
royalty adjustment. I realize how difficult this was for you because I know how
much you believe in this product, while I believe you are right, as you have
seen with our on-going negotiation with Warner Brothers in trying to get them to
participate in the support of the Batman Ride-On product on some financial basis
(tooling/advertising support or substantially reduced royalty) sometimes
licensors must participate in these marketing programs. I agree that your
support of Battle Builders will be no more than the $500,000 that you
participated in for 1996.
As far as the future is concerned, we must document, under separate cover,
exactly what your new arrangement will be after the Marvel acquisition. I
understand your "cap" amount will change and therefore we should better define
the terms of your new deal. In order to confirm your agreement with all of the
above, please sign and return a copy of this letter for our files.
Very truly yours,
Joseph M. Ahearn
President and
Chief Executive Officer
AGREED TO:
- ------------------------------
DATE:_________________________
<PAGE>
EXHIBIT 21.1
Subsidiaries of the Company
Toy Biz International, Ltd., a Hong Kong corporation.
<PAGE>
Exhibit 23
CONSENT OF ERNST & YOUNG LLP
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 33-92094) pertaining to the 1995 Stock Option Plan of Toy Biz, Inc. of
our report dated March 25, 1997, with respect to the consolidated financial
statements and schedule of Toy Biz, Inc. included in Toy Biz, Inc.'s Annual
Report (Form 10-K) for the year ended December 31, 1996.
/s/ Ernst & Young LLP
New York, New York
April 11, 1997
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby constitutes
and appoints each of Joseph M. Ahearn, David Fremed and Daniel J. Werther or any
of them, each acting alone, his true and lawful attorney-in-fact and agent, with
full power of substitution, for him and in his name, place and stead, in any and
all capacities, in connection with the TOY BIZ, INC. (the "Corporation") Annual
Report on Form 10-K for the year ended December 31, 1996 under the Securities
Exchange Act of 1934, as amended, including, without limiting the generality of
the foregoing, to sign the Form 10-K in the name and on behalf of the
Corporation or on behalf of the undersigned as a director or officer of the
Corporation, and any amendments to the Form 10-K and any instrument, contract,
document or other writing, of or in connection with the Form 10-K or amendments
thereto, and to file the same, with all exhibits thereto, and other documents in
connection therewith, including this power of attorney, with the Securities and
Exchange Commission and any applicable securities exchange or securities self-
regulatory body, granting unto said attorneys-in-fact and agents, each acting
alone, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, each acting alone, or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has signed these presents this
14th day of April 1997.
/s/ Ronald O. Perelman
-----------------------------
RONALD O. PERELMAN
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THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM TOY BIZ,
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QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
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