Exhibit 3.0
RESTATED CERTIFICATE OF INCORPORATION
OF
MATTEL, INC.
(Originally incorporated on March 6, 1968)
FIRST: The name of the corporation (hereinafter called the
"Company") is MATTEL, INC.
SECOND: The registered office of the Company in the State of
Delaware is located at Corporation Trust Center, 1209 Orange Street, in the
City of Wilmington, in the County of New Castle. The name of its
registered agent at that address is The Corporation Trust Company.
THIRD: The purpose of the Company is to engage in any lawful
act or activity for which corporations may be organized under the General
Corporation Law of Delaware.
FOURTH: The Company is authorized to issue a total of three
hundred twenty three million (323,000,000) shares of all classes of stock.
Of such total number of authorized shares of stock, three hundred million
(300,000,000) shares are Common Stock, each of which shares of Common
Stock has a par value of One Dollar ($1.00), three million (3,000,000)
shares are Preferred Stock, each of which shares of Preferred Stock has a
par value of One Dollar ($1.00), and twenty million (20,000,000) shares of
Preference Stock, each of which shares of Preference Stock has a par value
of one cent ($0.01).
A statement of the designations of the authorized classes of stock or
of any series thereof, and the powers, preferences and relative, participating,
optional or other special rights, and qualifications, limitations or
restrictions thereof, or of the authority of the Board of Directors to fix by
resolution or resolutions such designations and other terms, is as follows:
A. Preferred Stock and Preference Stock:
Shares of Preferred Stock and Preference Stock may be issued from
time to time in one or more series.
The Board of Directors is hereby authorized, within the limitations
and restrictions stated in this Article FOURTH, to fix by resolution or
resolutions the designation of each series of Preferred Stock and Preference
Stock and the powers, preferences and relative, participating, optional or
other special rights, and qualifications, limitations or restrictions thereof,
including without limiting the generality of the foregoing, such provisions as
may be desired concerning voting, redemption, dividends, dissolution or the
distribution of assets,
1
conversion or exchange, and such other subjects or
matters as may be fixed by resolution or resolutions of the Board of
Directors under the General Corporation Law of Delaware.
If any proposed amendment to the Certificate of Incorporation of the
Company would alter or change the preferences, special rights or powers
given to any one or more outstanding series of Preferred Stock or
Preference Stock so as to affect such series adversely, or would authorize
the issuance of a class or classes of stock having preferences or rights with
respect to dividends or dissolution or the distribution of assets that would
be superior to the preferences or rights of such series of Preferred Stock or
Preference Stock, then the holders of each such series of Preferred Stock
or Preference Stock so affected by the amendment shall be entitled to vote
as a series upon such amendment, and the affirmative vote of two-thirds
(2/3) of the outstanding shares of each such series shall be necessary to the
adoption thereof, in addition to such other vote as may be required by the
General Corporation Law of Delaware.
The number of authorized shares of Preferred Stock and Preference
Stock may be increased or decreased by the affirmative vote of the holders
of a majority of the stock of the Company entitled to vote, without there
being a class vote of the Preferred Stock or Preference Stock.
B. Common Stock:
Subject to all of the preferences and rights of the Preferred Stock
and the Preference Stock or a series of either that may be fixed by a
resolution or resolutions of the Board of Directors, dividends may be paid
on the Common Stock as and when declared by the Board of Directors, out
of any funds of the Company legally available for the payment of such
dividends.
Except as may otherwise be provided by a resolution or resolutions
of the Board of Directors concerning the Preferred Stock and the
Preference Stock or a series of either, or by this Certificate of Incorporation
or the General Corporation Law of Delaware, the holders of the shares of
Common Stock issued and outstanding shall have and possess the exclusive
right to notice of stockholders' meetings and the exclusive power to vote.
C. Series E Junior Participating Preference Stock:
The designated powers, preferences and relative participating,
optional or other special rights, and qualifications, limitations or
restrictions thereof, of the Series E Junior Participating Preference Stock
are as follows:
1. Designation and Amount. The shares of such series shall be
designated as "Series E Junior Participating Preference Stock" (the "Series
E Preference Stock") and the number of shares constituting the Series E
Preference Stock shall be 2,000,000. Such number of shares may be
increased or decreased by resolution of the Board of Directors;
2
provided,
that no decrease shall reduce the number of shares of Series E Preference
Stock to a number less than the number of shares then outstanding plus the
number of shares reserved for issuance upon the exercise of outstanding
options, rights or warrants or upon the conversion of any outstanding
securities issued by the Company convertible into Series E Preference
Stock.
2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of
any series of Preferred Stock, par value $1.00 per share (the
"Preferred Stock"), of the Company or Preference Stock (or
any similar stock) ranking prior and superior to the Series E
Preference Stock with respect to dividends, the holders of
shares of Series E Preference Stock, in preference to the
holders of Common Stock, par value $1.00 per share (the
"Common Stock"), of the Company, and of any other junior
stock, shall be entitled to receive, when, as and if declared by
the Board of Directors out of funds legally available for the
purpose, quarterly dividends payable in cash on the first day
of March, June, September and December in each year (each
such date being referred to herein as a "Quarterly Dividend
Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or fraction of
a share of Series E Preference Stock, in an amount per share
(rounded to the nearest cent) equal to the greater of (a) $1
or (b) subject to the provision for adjustment hereinafter set
forth, 100 times the aggregate per share amount of all cash
dividends, and 100 times the aggregate per share amount
(payable in kind) of all non-cash dividends or other
distributions, other than a dividend payable in shares of
Common Stock or a subdivision of the outstanding shares of
Common Stock (by reclassification or otherwise), declared on
the Common Stock since the immediately preceding
Quarterly Dividend Payment Date or, with respect to the first
Quarterly Dividend Payment Date, since the first issuance of
any share or fraction of a share of Series E Preference Stock.
In the event the Company shall at any time declare or pay
any dividend on the Common Stock payable in shares of
Common Stock, or effect subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise that by payment of a dividend in
shares of Common Stock) into a greater or lesser number of
shares of Common Stock, then in each such case the amount
to which holders of shares of Series E Preference Sock were
entitled immediately prior to such event under clause (b) of
the preceding sentence shall be adjusted by multiplying such
amount by fraction, the numerator of which is the number of
shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares
of Common Stock that were outstanding immediately prior to
such event.
3
(B) The Company shall declare a dividend or distribution
on the Series E Preference Stock as provided in paragraph
(A) of this Section immediately after it declares a dividend or
distribution on the Common Stock (other than a dividend
payable in shares of Common Stock); provided that, in the
event no dividend or distribution shall have been declared on
the Common Stock during the period between any Quarterly
Dividend Payment Date and the next subsequent Quarterly
Dividend Payment Date, a dividend of $1 per share on the
Series E Preference Stock shall nevertheless be payable on
such subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series E Preference Stock from the
Quarterly Dividend Payment Date next preceding the date of
issue of such shares, unless the date of issue of such shares is
prior to the record date for the first Quarterly Dividend
Payment Date, in which case dividends on such shares shall
begin to accrue from the date of issue of such shares, or
unless the date of issue is a Quarterly Dividend Payment
Date or is a date after the record date for the determination
of holders of shares of Series E Preference Stock entitled to
receive a quarterly dividend and before such Quarterly
Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on the
shares of Series E Preference Stock in an amount less than
the total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on a share-
by-share basis among all such shares at the time outstanding.
The Board of Directors may fix a record date for the
determination of holders of shares of Series E Preference
Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be not
more than 60 days prior to the date fixed for the payment
thereof.
3. Voting Rights. The holders of shares of Series E
Preference Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth, each share of Series E Preference Stock shall entitle
the holder thereof to 100 votes on all matters submitted to a
vote of the stockholders of the Company. In the event the
Company shall at any time declare or pay any dividend on the
Common Stock payable in shares of Common Stock, or effect
a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares of
Common Stock, then in each such case the number of votes
per share to which holders of shares of Series E Preference
Stock were entitled immediately prior to such event shall be
adjusted by multiplying such number by a fraction, the
4
numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
(B) Except as otherwise provided herein, in any other
Certificate of Designations creating a series of Preferred
Stock or Preference Stock or any similar stock, or by law, the
holders of shares of Series E Preference Stock and the
holders of shares of Common Stock and any other capital
stock of the Company having general voting rights shall vote
together as one class on all matters submitted to a vote of
stockholders of the Company.
(C) Except as set forth herein, or as otherwise provided by
law, holders of Series E Preference Stock shall have no
special voting rights and their consent shall not be required
(except to the extent they are entitled to vote with holders of
Common Stock as set forth herein) for taking any corporate
action.
4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series E Preference Stock as
provided in Section 2 are in arrears, thereafter and until all
accrued and unpaid dividends and distributions, whether or
not declared, on shares of Series E Preference Stock
outstanding shall have been paid in full, the Company shall
not:
(i) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior
(either as to dividends or upon liquidation, dissolution
or winding up) to the Series E Preference Stock;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a
parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series E
Preference Stock, except dividends paid ratably on the
Series E Preference Stock and all such parity stock on
which dividends are payable or in arrears in
proportion to the total amounts to which the holders
of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior
(either as to dividends or upon liquidation, dissolution
or winding up) to the Series E Preference Stock,
provided that the Company may at any time redeem,
purchase or otherwise acquire shares of any such
junior stock in exchange for shares of any stock of the
Company ranking junior (as to dividends and upon
5
dissolution, liquidation and winding up) to the Series
E Preference Stock; or
(iv) redeem or purchase or otherwise acquire for
consideration any shares of Series E Preference Stock,
or any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding
up) with the Series E Preference Stock, except in
accordance with a purchase offer made in writing or
by publication (as determined by the Board of
Directors) to all holders of such shares upon such
terms as the Board of Directors, after consideration of
the respective annual dividend rates and other relative
rights and preferences of the respective series and
classes, shall determine in good faith will result in fair
and equitable treatment among the respective series
or classes.
(B) The Company shall not permit any subsidiary of the
Company to purchase or otherwise acquire for consideration
any shares of stock of the Company unless the Company
could, under paragraph (A) of this Section 4, purchase or
otherwise acquire such shares at such time and in such
manner.
5. Reacquired Shares. Any shares of Series E Preference Stock
purchased or otherwise acquired by the Company in any manner whatsoever
shall be retired and canceled promptly after the acquisition thereof. All
such shares shall upon their cancellation become authorized but unissued
shares of Preference Stock and may be reissued as part of a new series of
Preference Stock subject to the conditions and restrictions on issuance set
forth herein, in the Certificate of Incorporation, or in any other Certificate
of Designation creating a series of Preferred Stock or Preference Stock or
any similar stock or as otherwise required by law.
6. Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the Company, no distribution shall
be made (A) to the holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series E
Preference Stock unless, prior thereto, the holders of shares of Series E
Preference Stock shall have received $100 per share, plus an amount equal
to accrued and unpaid dividends and distributions thereon, whether or not
declared, to the date of such payment, provided that the holders of shares
of Series E Preference Stock shall be entitled to receive an aggregate
amount per share, subject to the provision for adjustment hereinafter set
forth, equal to 100 times the aggregate amount to be distributed per share
to holders of shares of Common Stock, or (B) to the holders of shares of
stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series E Preference Stock, except
distributions made ratably on the Series E Preference Stock and all such
parity stock in proportion to the total amounts to which the holders of all
such shares are entitled upon such liquidation, dissolution or winding up.
In the event the Company shall at any time declare or pay any dividend on
the Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the
6
outstanding shares of
Common Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser number of
shares of Common Stock, then in each such case the aggregate amount to
which holders of shares of Series E Preference Stock were entitled
immediately prior to such event under the provision in clause (A) of the
preceding sentence shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately
prior to such event.
7. Consolidation, Merger, etc. In case the Company shall
enter into any consolidation, merger, combination or other transaction in
which the shares of Common Stock are exchanged for or changed into other
stock or securities, cash and/or any other property, then in any such case
each share of Series E Preference Stock shall at the same time be similarly
exchanged or changed into an amount per share, subject to the provision for
adjustment hereinafter set forth, equal to 100 times the aggregate amount
of stock, securities, cash and/or any other property (payable in kind), as the
case may be, into which or for which each share of Common Stock is
changed or exchanged. In the event the Company shall at any time declare
or pay any dividend on the Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than
by payment of a dividend in shares of Common Stock) into a greater or
lesser number of shares of Common Stock, then in each such case the
amount set forth in the preceding sentence with respect to the exchange or
change of shares of Series E Preference Stock shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the
number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
8. No Redemption. The shares of Series E Preference Stock
shall not be redeemable.
9. Rank. The Series E Preference Stock shall rank, with respect
to the payment of dividends and the distribution of assets, junior to all
series of any other class of Preferred Stock or Preference Stock.
10. Amendment. If any proposed amendment to the Certificate
of Incorporation would alter or change the preferences, special rights or
powers given to the Series E Preference Stock so as to affect the Series E
Preference Stock adversely, or would authorize the issuance of a class or
classes of stock having preferences or rights with respect to dividends or
dissolutions or the distribution of assets that would be superior to the
preferences or rights of the Series E Preference Stock, then the holders of
the Series E Preference Stock shall be entitled to vote as a series upon such
amendment, and the affirmative vote of two-thirds of the outstanding shares
of Series E Preference Stock shall
7
be necessary to the adoption thereof, in
addition to such other vote as may be required by the General Corporation
Law of the State of Delaware.
D. 12.5% Convertible Preference Stock, Series F:
The designated powers, preferences and relative participating,
optional or other special rights, and qualifications, limitations or
restrictions thereof, the 12.5% Convertible Preference Stock, Series F, are
as follows:
1. Designation. The shares of such series shall be designated as
"12.5% Convertible Preference Stock, Series F" (the "Series F Stock")
2. Number of Shares. The number of shares constituting the
Series F Stock be and the same is hereby fixed as 864,293 and cannot be
increased.
3. Stated Capital. The amount to be represented in stated
capital at all times for each share of the Series F Stock shall be its par
value of $.01 per share.
4. Rank. The Series F Stock shall, with respect to dividend
rights and rights on liquidation, rank (i) junior to, or on parity with, as the
case may be, any other series of the Preferred Stock or Preference Stock
established by the Board of Directors, the terms of which shall specifically
provide that such series shall rank senior to, or on parity with, as the case
may be, the Series F Stock with respect to dividend rights and rights on
liquidation, and (ii) prior to any other equity securities of the Company
including all classes of the Common Stock, $1.00 par value per share
(collectively, the "Common Stock"), of the Company. (All of such equity
securities of the Company to which the Series F Stock rank prior in right
of dividends or in liquidation, as the case may be, including all classes of
the Common Stock, are at times collectively referred to herein as the
"Junior Securities".)
5. Dividends.
(A) From and after November 26, 1991 and prior to the
date of conversion thereof, the holders of such stock shall be
entitled to receive, out of the assets of the Company at the
time legally available therefor and before any dividend or
other distribution is declared or paid with respect to the
outstanding shares of Common Stock, cumulative cash
dividends, as and when declared by the Board of Directors of
the Company, at the rate of $4.882 per share per annum.
Such dividends shall be payable in arrears, in equal quarterly
installments of $1.2205 per share on November 26, February
26, May 26 and August 26, or on such other date in
November, February, May or August of each year as or shall
be designated by the Board of Directors of the Company
(each such date is referred to herein as a "Dividend Payment
Date" and the quarterly period between consecutive Dividend
Payment Dates is referred to herein as a "Dividend Period");
each such quarterly dividend shall be paid to
8
the holders of
record of outstanding shares of Series F Stock as their names
shall appear on the share register of the Company on the
corresponding Record Date. As used herein, the term
"Record Date" means, with respect to the quarterly dividends
payable on November 26, February 26, May 26 and August
26, respectively, the preceding November 15, February 15,
May 15 and August 15, or such other record date as may be
designated by the Board of Directors of the Company in the
event that the Board of Directors of the Company designates
a Dividend Payment Date other than the 26th day of each
such month.
(B) If, on any Dividend Payment Date which is prior to the
date of conversion of shares of Series F Stock, full cash
dividends pursuant to subclause (A) above are not paid or
made available to the holders of outstanding shares of Series
F Stock and the funds available to the Company for such
purpose shall be insufficient to permit payment in full in cash
to all such holders of outstanding shares of Series F Stock of
the preferential dividend amounts to which they are then
entitled pursuant to subclause (A) above, the entire amount
available for payment of cash dividends with respect to the
outstanding shares of Series F Stock pursuant to subclause
(A) above shall be distributed among the holders of
outstanding shares of Series F Stock ratably, in proportion to
the full amounts to which they would otherwise be entitled,
and any remainder not paid in cash to the holders of
outstanding shares of Series F Stock shall cumulate as
provided in subclause (C) below.
(C) If, on any Dividend Payment Date which is prior to the
date of conversion of shares of Series F Stock, the holders of
outstanding shares of Series F Stock shall not have received
the full cash dividends to which they are entitled pursuant to
sub-clause (A) above, then such unpaid dividends shall
cumulate, whether or not declared, until so paid.
(D) In addition to the cumulative dividends payable with
respect to outstanding shares of Series F Stock pursuant to
subclauses (A), (B) and (C) above, from and after February
26, 1992 and prior to the date (the "ESOP Payment Date")
the trustee of the International Games, Inc. ("International")
Restated Employee Stock Ownership Plan (the "ESOP")
receives written notice of final payment by the ESOP of all
amounts due to the Company pursuant to the Loan
Agreement dated as of August 1, 1987, or a suitable
replacement thereof, between International and the ESOP
(the "ESOP Loan Agreement"), the holders of such shares
shall be entitled to receive on any Dividend Payment Date in
any year, out of the assets of the Company at the time legally
available therefor and before any dividend or other
distribution is declared or paid with respect to the
outstanding shares of Common Stock, noncumulative cash
dividends, as and when declared by the Board of Directors of
the Company, and in such amounts as the Board of Directors of
9
the Company shall, in its sole discretion, from time to time
determine to be necessary, together with the amount of the
Company's annual contribution to the ESOP, to amortize all
of the amounts due in such year to the holders of the
International's FRESOP Notes, Series 1987 A, or suitable
replacements thereof, issued pursuant to the Indenture of
Trust, dated as of August 1, 1987, between the International,
as issuer, and Bankers Trust Company, as trustee, in
accordance with the terms thereof; provided, however, that in
no event shall the outstanding shares of Series F Stock be
entitled to receive noncumulative dividends pursuant to this
subclause (D) in excess of $.5889 per share per annum. Each
such dividend shall be paid to the holders of record of
outstanding shares of Series F Stock as their names shall
appear on the share register of the Company on the
corresponding Record Date.
(E) In addition to the cumulative dividends payable with
respect to the outstanding shares of Series F Stock pursuant
to subclauses (A), (B) and (C) above and the noncumulative
dividends payable with respect to such shares pursuant to
subclause (D) above, if, on any Dividend Payment Date which
is prior to the date of conversion of shares of Series F Stock,
after the payment of all dividends, if any, with respect to the
outstanding shares of Series F Stock pursuant to subclauses
(A), (B), (C) and (D) above, any dividend shall be declared
by the Board of Directors of the Company with respect to the
outstanding shares of Common Stock, the holders of
outstanding shares of Series F Stock on the applicable Record
Date for the dividend on the Common Stock shall be entitled
to receive on the applicable Dividend Payment Date
dividends in such amount as they would be entitled to receive
if their shares of Series F Stock had been converted into
shares of Common Stock on the applicable Record Date.
6. Distributions Upon Liquidation, Dissolution or Winding Up.
(A) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Company which
is prior to the ESOP Payment Date, after the payment in full
of all preferential liquidation amounts to which the holders
of outstanding shares of Preferred Stock or Preference Stock
ranking senior to the Series F Stock shall be entitled, but
before any distribution or payment shall be made to the
holders of outstanding shares of Common Stock, the holders
of outstanding shares of Series F Stock shall be entitled to
receive, out of the assets of the Company at the time legally
available therefor, an amount equal to the positive sum, if
any, of (x) $39.056 per share, together with all dividends
accrued (whether or not declared) during the dividend period
in which such liquidation, dissolution or winding up occurs
and all cumulated and unpaid dividends, if any, accrued
during any prior dividend periods, less (y) the quotient
obtained by dividing the principal amount of the indebtedness
of the ESOP to the Company pursuant to the
10
ESOP Loan Agreement outstanding on the date of such voluntary or
involuntary liquidation, dissolution or winding up of the
affairs of the Company by 864,293. If, upon any such
voluntary or involuntary liquidation, dissolution or winding up
of the affairs of the Company, the assets of the Company
legally available therefor after the payment in full of all
preferential liquidation amounts to which the holders of
outstanding shares of Preferred Stock or Preference Stock
ranking senior to the Series F Stock shall be entitled but
before any distribution or payment shall be made to the
holders of outstanding Junior Securities, shall be insufficient
to permit the payment in full to the holders of outstanding
shares of Series F Stock of the preferential liquidation
amounts to which they are then entitled, the entire assets of
the Company thus distributable shall be distributed among
the holders of outstanding shares of Series F Stock ratably, in
proportion to the full amounts to which such holders would
otherwise be entitled if such assets were sufficient to permit
payment in full. In addition, after the payment in full of all
preferential liquidation amounts to which the holders of
outstanding shares of Series F Stock shall be entitled, the
holders of all outstanding shares of Common Stock, and the
holders of outstanding shares of Series F Stock shall be
entitled to receive the entire assets of the Company available
for distribution, ratably with the holders of outstanding shares
of Common Stock, in proportion to the ratio which the total
number of shares of Common Stock into which the
outstanding shares of Series F Stock would be convertible on
the effective date of such voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Company bears
to the total number of shares of Common Stock deemed to
be outstanding on such date (assuming for this purpose the
conversion of all outstanding shares of Series F Stock on such
effective date). Each holder of outstanding shares of Series
F Stock shall be entitled to receive that portion of the assets
of the Company available for distribution which the number
of shares of Common Stock issuable upon conversion of such
holder's shares of Series F Stock bears to the total number of
shares of Common Stock deemed to be outstanding on the
effective date of such voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Company.
(B) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Company which
is after the ESOP Payment Date, after the payment in full of
all preferential liquidation amounts to which the holders of
outstanding shares of Preferred Stock or Preference Stock
ranking senior to the Series F Stock shall be entitled, but
before any distribution or payment to the holders of Junior
Securities, the holders of outstanding shares of Series F Stock
shall be entitled to receive out of the assets of the Company
at the time legally available therefor, an amount equal to
$39.056 per share, together with all dividends accrued
(whether or not declared) during the dividend period in which
such liquidation, dissolution or
11
winding up occurs and all
cumulated and unpaid dividends, if any, accrued during any
prior Dividend Periods. In addition, after the payment in full
of all preferential liquidation amounts to which the holders
of outstanding shares of Series F Stock shall be entitled, the
holders of outstanding shares of Series F Stock shall be
entitled to receive the entire assets of the Company available
for distribution, ratably with the holders of outstanding shares
of Common Stock, in proportion to the ratio which the total
number of shares of Common Stock into which the
outstanding shares of Series F Stock would be convertible on
the effective date of such voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Company bears
to the total number of shares of Common Stock deemed to
be outstanding on such date (assuming for this purpose the
conversion of all outstanding shares of Series F Stock on such
effective date). Each holder of outstanding shares of Series
F Stock shall be entitled to receive that portion of the assets
of the Company available for distribution which the number
of shares of Common Stock issuable upon conversion of such
holder's shares of Series F Stock bears to the total number of
shares of Common Stock deemed to be outstanding on the
effective date of such voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Company as set
forth above.
7. Redemption. The shares of Series F Stock shall not be
redeemable by the Company.
8. Conversion.
(A) From and after the Date of Issuance of shares of Series
F Stock and prior to the expiration of thirty days following
the ESOP Payment Date, each share of Series F Stock shall
be convertible, at the option of the holder thereof, into one
fully-paid and nonassessable share of Common Stock of the
Company, subject to adjustment as hereinafter set forth in
subclause (E) below.
(B) From and after the thirty-first day following the ESOP
Payment Date, each share of Series F Stock shall be
convertible, at the option of the holder thereof, into .3644353
of a fully-paid and nonassessable share of Common Stock of
the Company, subject to adjustment as hereinafter set forth
in subclause (E) below.
(C) To exercise such conversion option, the holder of shares
of Series F Stock shall surrender the certificate or certificates
representing the shares of Series F Stock to be converted,
duly endorsed for transfer to the Company, at the principal
executive office of the Company, and shall give written notice,
postage prepaid, by certified or registered mail, return receipt
requested, or by hand delivery to the Company at its principal
executive office, of the
12
election of such holder to convert all
or a portion of the shares of Series F Stock represented by
the certificate or certificates surrendered into shares of
Common Stock which notice shall set forth the name or
names in which the certificate or certificates representing the
shares of Common Stock to be issued upon conversion are to
be issued. Conversion shall be deemed to have been effected
on the date of receipt by the Company of such notice and the
certificate or certificates to be surrendered for conversion
(the "Conversion Date"). As promptly as practicable
thereafter, the Company shall issue to or upon the written
order of such holder, a certificate or certificates for the
number of full shares of Common Stock to which such holder
is entitled. The conversion of shares of Series F Stock into
shares of Common Stock shall be deemed to be effective and
such holder, or the person or persons designated by such
holder, shall be deemed to have become a holder of record
of the shares of Common Stock issuable upon conversion of
such shares of Series F Stock on the applicable Conversion
Date unless the transfer books of the Company are closed on
such date, in which event such holder shall be deemed to
have become a holder of record of the shares of Common
Stock issued upon conversion of the shares of Series F Stock
on the next succeeding date on which the transfer books of
the Company are open. Upon conversion of only a portion
of the number of shares of Series F Stock represented by a
certificate or certificates surrendered for conversion, the
Company shall issue and deliver to or upon the written order
of the holder of the certificate or certificates so surrendered
a new certificate or certificates representing the number of
shares of Series F Stock not so converted.
(D) No fractional shares of Common Stock shall be issued
upon conversion of shares of Series F Stock. In lieu of
issuing fractional shares of Common Stock upon conversion
of shares of Series F Stock, the Company shall pay a cash
adjustment in respect of such fractional shares of Common
Stock equal to the fair market value thereof as determined by
the Board of Directors of the Company. The Company shall
at all times reserve and keep available out of its authorized
but unissued shares of Common Stock, solely for the purpose
of effecting the conversion of outstanding shares of Series F
Stock, the full number of shares of Common Stock
deliverable upon the conversion of all shares of Series F
Stock from time to time outstanding.
(E) The number of shares of Common Stock into which a
share of Series F Stock shall be convertible as set forth in
subclauses (A) and (B) above, shall be subject to adjustment
from time to time as follows:
(i) In case the Company shall at any time subdivide
its outstanding shares of Common Stock or shall issue
a dividend or other distribution payable in shares of
Common Stock, the number of shares of Common
Stock into which a share of Series F Stock shall be
convertible shall be
13
proportionately increased,
effective immediately after the effective date of such
subdivision or at the close of business on the record
date fixed by the Board of Directors of the Company
for such dividend or other distribution, as the case
may be;
(ii) In case the Company shall at any time combine
its outstanding shares of Common Stock, the number
of shares of Common Stock into which a share of
Series F Stock shall be convertible shall be
proportionately decreased, effective immediately after
the effective date of such combination; and
(iii) In case the Company shall at any time
recapitalize or reclassify its capital stock, or in case of
any consolidation or merger of the Company with or
into any other person (other than a consolidation or
merger in which the Company is the continuing entity
and which does not result in any change in the capital
stock of the Company) or in case of the sale or other
disposition of all or substantially all the assets of the
Company to any other person, then in each such case
each outstanding share of Series F Stock shall after
such recapitalization, reclassification, consolidation,
merger, sale or other disposition be convertible into
the kind and number of shares of capital stock or
other securities or assets of the Company or of the
entity resulting from such consolidation or surviving
such merger or to which such assets shall have been
sold or otherwise disposed of to which the holder
thereof would have been entitled if immediately prior
to such recapitalization, reclassification, consolidation,
merger, sale or other disposition such holder had
converted its shares of Series F Stock. The provisions
set forth above shall apply to successive
recapitalization, reclassifications, consolidations,
mergers, sales or other dispositions.
(F) All shares of Common Stock issued upon conversion of
shares of Series F Stock shall, upon issuance by the Company,
be duly and validly issued, fully-paid and nonassessable and
free from all taxes, liens and charges with respect to the
issuance thereof.
9. Voting Rights. The holders of shares of Series F Stock shall
be entitled to vote on or otherwise consent to any matter requiring the vote
or consent of the stockholders of the Company under the laws of the State
of Delaware. Each holder of outstanding shares of Series F Stock shall be
entitled to one vote for each whole share of Common Stock into which such
holder's outstanding shares of Series F Stock would be convertible
immediately after the close of business on the record date fixed by the
Board of Directors of the Company for determining the stockholders of the
Company entitled to vote or otherwise consent to such matter; provided,
however, that in the event (x) the Company shall fail to pay cumulative
dividends in full on the outstanding shares of Series F Stock for a period of
14
four consecutive Dividend Periods, or (y) the Company shall fail to pay
cumulative dividends in full on the outstanding shares of Series F Stock for
a period of eight Dividend Periods, in either case after the expiration of
thirty days following the ESOP Payment Date, each holder of outstanding
shares of Series F Stock shall be entitled to the number of votes equal to
the number of whole shares of Common Stock which such holder would
have been entitled to receive if the shares of Series F Stock held by such
holder had been converted into shares of Common Stock prior to the
expiration of thirty days following the ESOP Payment Date until such time
as all cumulative dividends in arrears with respect to the shares of Series F
Stock shall have been paid in full. Except as otherwise required by the laws
of the State of Delaware, the holders of outstanding shares of Series F
Stock shall vote together with the holders of outstanding shares of Common
Stock as a single class.
FIFTH: At all elections of Directors of the Company, each
stockholder who is entitled to vote upon such election shall be entitled to
as many votes as shall be equal to the number of votes which (except for
this provision as to cumulative voting) he would be entitled to cast for the
election of Directors with respect to his shares of stock multiplied by the
number of Directors to be elected, and he may cast all of such votes for a
single Director or may distribute them among the number to be voted for
or for any two or more of them, as he sees fit.
SIXTH: In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly authorized to make,
alter or repeal the Bylaws of the Company.
SEVENTH: The Company shall indemnify any and all persons
whom it has the power to indemnify pursuant to the Delaware General
Corporation Law against any and all expenses, judgments, fines amounts
paid in settlement, and any other liabilities to the fullest extent permitted
by such Law and may, at the discretion of the Board of Directors, purchase
and maintain insurance, at its expense, to protect itself and such persons
against any such expense, judgment, fine, amount paid in settlement or
other liability, whether or not the Company would have the power to so
indemnify such person under the Delaware General Corporation Law.
A director of the Company shall not be personally liable to the
Company or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Company or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director
derived any improper personal benefit. If the Delaware General
Corporation Law is amended after approval by the stockholders of this
article to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director of the Company
shall be eliminated or limited to the fullest extent permitted by the
Delaware General Corporation Law, as so amended.
15
Any repeal or modification of the foregoing paragraph by the
stockholders of the Company shall not adversely affect any right or
protection of a director of the Company existing at the time of such repeal
or modification.
IN WITNESS WHEREOF, this Restated Certificate of
Incorporation, which only restates and integrates and does not further
amend the provisions of the Certificate of Incorporation of the Company as
heretofore amended, supplemented or restated and there being no
discrepancies between those provisions and the provisions of this Restated
Certificate of Incorporation and it having been duly adopted in accordance
with Section 245 of the General Corporation Law of the State of Delaware
by the Executive Committee of the Board of Directors, which Committee
is authorized to act on behalf of the Company's Board of Directors, has
been executed by its Vice President and attested by its Secretary on this
30th day of November, 1993.
Mattel, Inc.
By: /s/ Judy A. Willis
------------------
Vice President
Attest:
By: /s/ N. Ned Mansour
------------------
Secretary
16