Exhibit 99.8 - Stockholders Agreement dated
November 17, 1996 between Parent
and the Company Series B Preferred
Stockholders.
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT, dated as of November 17, 1996, by
and among Mattel, Inc., a Delaware corporation ("Parent"), Corporate
Partners, L.P., a Delaware limited partnership ("Corporate Partners"),
Corporate Offshore Partners, L.P., a Bermuda limited partnership
("Offshore Partners"), The State Board Administration of Florida, a
body corporate organized under the constitution of the State of
Florida (the "State Board", and together with Corporate Partners and
Offshore Partners, the "Stockholders"), and Corporate Advisors, L.P.,
a Delaware limited partnership ("Corporate Advisors").
WITNESSETH:
WHEREAS, the Stockholders collectively beneficially own
Shares of capital stock ("Company Shares") of Tyco Toys, Inc., a
Delaware corporation (the "Company"), as set forth on Schedule I
hereto; and
WHEREAS, Parent and Company have entered into an Agreement
and Plan of Merger, dated as of the date hereof (the "Merger
Agreement"), pursuant to which, among other things, a subsidiary of
Parent will be merged with and into the Company (the "Merger"); and
WHEREAS, as a condition to its willingness to enter into the
Merger Agreement, Parent has required that the Stockholders agree, and
the Stockholders have agreed, to enter into and abide by the terms of
this Stockholders Agreement;
NOW, THEREFORE, in consideration of the premises, the mutual
covenants and agreements set forth herein and other good and valuable
consideration, the sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Ownership of Company Shares. Each Stockholder represents
and warrants that such Stockholder has or shares the right to vote and
dispose of the number of Company Shares set forth opposite such
Stockholder's name on Schedule I hereto, subject to such restrictions
as may be applicable under law and the Stock Purchase Agreement for
Series B Voting Convertible Exchangeable Preferred Stock dated April
15, 1994 between the Stockholders and Tyco Toys, Inc. (the "Stock
Purchase Agreement").
2. Agreements of the Stockholders. Each Stockholder
covenants and agrees that during the term of this Stockholders
Agreement:
(a) such Stockholder shall, at any meeting of the Company's
stockholders called for such purpose (including at any
postponements and adjournments thereof), vote, or cause to be
voted, all Company Shares, together with any other shares of
capital stock of the Company acquired after the date hereof and
prior to the termination hereof, in which such stockholder has
the right to vote in favor of approval and adoption of the Merger
Agreement;
(b) except as otherwise expressly permitted hereby and
except as may be required by the Company Certificate of
Designation, such Stockholder shall not, prior to the Effective
Date (as defined in the Agreement) or the earlier termination of
the Merger Agreement in accordance with its terms, sell, pledge,
transfer or otherwise dispose of such Stockholder's Company
Shares; and
(c) such Stockholder shall not in its capacity as a
stockholder of the Company directly or indirectly encourage or
solicit or hold discussions or negotiations with, or provide any
information to, any person, entity or group (other than Parent or
an affiliate thereof) concerning any Acquisition Proposal (as
defined in the Merger Agreement) (and other than Company in
connection with the Merger); provided that this clause (c) shall
not be binding on the State Board to the extent that Corporate
Advisors does not have the authority to act for the State Board
with respect to the subject matter of this clause (c).
3. Treatment of Series B Shares. (a) Subject to the terms
and conditions of this Stockholders Agreement, each Stockholder and
Parent agree that on the Effective Date as part of the Merger each
share of the Series B Voting Convertible Exchangeable Preferred Stock,
par value $.10 per share ("Series B Shares") beneficially owned by
such Stockholder shall be converted into or exchanged for one share of
a series of preferred stock of Parent having economic terms as nearly
equivalent as possible to, and with the same voting and other rights
as, the Series B Stock, including the right to convert into common
stock of Parent (the "Parent Series B Stock", and such conversion or
exchange hereby referred to as the "Series B Shares Treatment"), and
each Stockholder hereby waives any rights such
Stockholder might otherwise have pursuant to Section 3 or Section 4 of
the Certificate of Designation for the Series B Shares in effect as of
the date hereof (the "Certificate of Designation") with respect to
such shares solely as a result of the Merger, other than to receive
such Parent Series B Stock.
(b) In the event that the Series B Treatment is deemed or
considered to be, or is determined to require, an amendment to the
Certificate of Designation or to the Restated Certificate of
Incorporation of Company, as amended as of the date hereof (the
"Certificate of Incorporation"), each Stockholder hereby agrees to
vote all of its Company Shares in favor of any amendment to the
Certificate of Designation or the Certificate of Incorporation as may
be necessary to effectuate the Series B Shares Treatment.
(c) From and after the Effective Date, Parent agrees to pay
any and all dividends and distributions on the Parent Series B Shares
(including accrued and unpaid dividends on the Series B Shares) when
due (or, if past due as of the Effective Date, then on the Effective
Date).
4. Authority of Corporate Advisors to Act for the State
Board. (a) Subject to Section 7(b), the State Board and Corporate
Advisors each represents to Parent that Corporate Advisors has full
power and authority, pursuant to the provisions of an Investment
Management Agreement, dated as of June 17, 1988 (the "Management
Agreement"), to act on behalf of the State Board in connection with
the transactions contemplated by this Stockholders Agreement (except
as set forth in the proviso in Section 2(c) hereof) and that Parent
can rely on any action taken by Corporate Advisors in connection
therewith as if such action were taken by the State Board.
(b) Subject to Section 7(b), so long as the Management
Agreement remains in effect without amendment of the provisions
granting Corporate Advisors the authority to act on behalf of the
State Board, any and all actions that are required or permitted to be
taken by the State Board pursuant to this Stockholders Agreement may
be taken by Corporate Advisors on behalf of the State Board and any
and all notices required to be given by Parent to the State
Board pursuant to this Stockholders Agreement may be given
to Corporate Advisors in lieu of giving such notice to the
State Board; provided, however, that the provisions of this
sentence shall not relieve the State Board of any of its
obligations pursuant to this Stockholders Agreement. Parent
shall be entitled to assume that, and to act in reliance on
the assumption that, the Management Agreement remains in
effect without amendment of any
such provisions unless and until it receives written notice from the
State Board to the contrary.
5. Successors and Assigns. A Stockholder may not sell,
pledge, transfer, convert or otherwise dispose of its Company Shares
except to another Stockholder without the prior written consent of
Parent, which consent shall be granted or withheld in Parent's sole
discretion.
6.(a) Representations and Warranties of Parent. Parent makes
the following representations and warranties to each Stockholder:
(i) Parent has all requisite corporate power and authority
to enter into this Stockholders Agreement and the Merger Agreement and
to consummate the transactions contemplated hereby and thereby. The
execution and delivery of this Stockholders Agreement and the Merger
Agreement and the consummation of the transactions contemplated hereby
and thereby have been duly authorized by all necessary corporate
action on the part of Parent. Parent has duly executed and delivered
this Stockholders Agreement and the Merger Agreement and this
Stockholders Agreement and the Merger Agreement constitute its legal,
valid and binding obligations enforceable against it in accordance
with their respective terms except as may be limited by bankruptcy,
insolvency or other similar laws affecting the enforcement of
creditors' rights generally and except that the availability of
equitable remedies, including specific performance, is subject to the
discretion of the court before which any proceeding therefor may be
brought.
(ii) Parent is not subject to or obligated under (A) any
charter, by-law, indenture or other loan document provision (other
than the Credit Agreement dated as of March 10, 1995, among Parent,
the Banks named therein and Bank of America National Trust and Savings
Association, as amended (the "Parent Credit Agreement")) or (B) any
other contract, license, franchise, permit, order, decree, concession,
lease, instrument, judgment, statute, law, ordinance, rule or
regulation applicable to Parent or any of its subsidiaries or their
respective properties or assets, which would be breached or violated,
or under which there would be a default (with or without notice or
lapse of time, or both), or under which there would arise a right of
termination, cancellation or acceleration of any obligation or the
loss of a material benefit, by execution and delivery of this
Stockholders Agreement and the Merger Agreement, and the consummation
of the transactions contemplated hereby and thereby (including the
issuance of the Parent Series B Stock, the issuance of shares of
common stock of Parent upon the conversion and the compliance by
Parent with the terms of
such securities (collectively, the "Securities")) other than, in the
case of clause (B) only, (X) any breaches, violations, defaults,
terminations, cancellations, accelerations or losses which, either
singly or in the aggregate, will not have a Parent Material Adverse
Effect (as defined in the Merger Agreement) or prevent the
consummation of the transactions contemplated hereby or thereby,
including the issuance of such Securities and compliance by Parent
with the terms thereof and (Y) the laws and regulations referred to in
the next sentence. Except as referred to herein or in connection, or
in compliance, with the provisions of the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1933, as amended (the "Securities Act"), the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
other governmental approvals required under the applicable laws of any
foreign jurisdiction ("Foreign Laws") and the environmental,
corporation, securities or blue sky laws or regulations of the various
states, no filing or registration with, or authorization, consent or
approval of, any public body or authority is necessary for the
consummation by Parent of the Merger or the other transactions
contemplated by this Merger Agreement (including the issuance of the
Securities), other than filings, registrations, authorizations,
consents or approvals the failure of which to make or obtain would not
have a Parent Material Adverse Effect or prevent the consummation of
the transactions contemplated hereby or thereby, including the
issuance of the Securities and compliance by Parent with the terms
thereof.
(iii) Status of Shares. The shares of Parent Series B Stock will be,
prior to the Effective Date, duly authorized by all necessary
corporate action on the part of Parent and upon their issuance will be
validly issued and outstanding, fully paid and nonassessable and free
and clear of any liens. The shares of common stock of Parent issuable
upon conversion or exchange of the shares of Parent Series B Stock or
the Parent Notes will be, prior to the Effective Date validly reserved
for issuance, and upon issuance upon such conversion or exchange will
be validly issued and outstanding, fully paid and nonassessable, and
free and clear of any liens. The notes of Parent issuable upon
exchange of the Shares (the "Parent Notes") will be, prior to issuance
thereof, duly authorized by all necessary corporate action on the part
of Parent, and when issued and exchanged for shares of Parent Series B
Stock, will constitute valid and binding obligations of Parent,
enforceable in accordance with their term except as may be limited by
bankruptcy, insolvency or other similar laws affecting the enforcement
of creditors' rights generally and except that the availability of
equitable remedies, including specific performance, is subject to the
discretion of the court before which any proceeding therefor may be
brought. The shares of common stock of
Parent issuable upon conversion or exchange of the Series B Shares
will be authorized for listing upon notice of issuance on the
principal trading market on which shares of common stock of Parent are
traded at such time. The issuance of the Parent Series B Shares in the
Merger will not be subject to any preemptive rights.
(b) Representations or Warranties of the Stockholders. Each
Stockholder makes the following representations, on its own behalf, to
Parent:
(i) Stockholder has all requisite power and authority to
enter into this Stockholders Agreement. The execution and delivery of
this Stockholders Agreement and the consummation of the transactions
contemplated hereby are duly authorized by all necessary partnership
or other action on the part of Stockholder. Stockholder has duly
executed and delivered this Stockholders Agreement and this
Stockholders Agreement constitutes its legal, valid and binding
obligations enforceable against it in accordance with their respective
terms except as may be limited by bankruptcy, insolvency or other
similar laws affecting the enforcement of creditors' rights generally
and except that the availability of equitable remedies, including
specific performance, is subject to the discretion of the court before
which any proceeding therefor may be brought.
(ii) Stockholder is not subject to or obligated under (A) any charter,
by-law, partnership agreement, indenture or other loan document
provision or (B) any other contract, license, franchise, permit,
order, decree, concession, lease, instrument, judgment, statute, law,
ordinance, rule or regulation applicable to Stockholder or any of its
affiliates or their respective properties or assets, which would be
breached or violated, or under which there would be a default (with or
without notice or lapse of time, or both), or under which there would
arise a right of termination, cancellation or acceleration of any
obligation or the loss of a material benefit, by execution and
delivery of this Stockholders Agreement and the consummation of the
transactions contemplated hereby other than, in the case of clause (B)
only, the Stock Purchase Agreement (for which the Company has pursuant
hereto given its consent to the execution of and the consummation of
the transactions contemplated by this Stockholders Agreement) any
breaches, violations, defaults, terminations, cancellations,
accelerations or losses which, either singly or in the aggregate, will
not prevent the consummation of the transactions contemplated by this
Stockholders Agreement.
7. Other Agreements. (a) Registration Rights. Parent agrees
with Stockholders that on the Effective Date,
Parent shall, pursuant to a writing satisfactory to the Stockholders,
assume and be bound by all obligations of the Company under the
Registration Rights Agreement dated April 15, 1994 between the
Stockholders and Company, and Parent and Stockholders agree that such
agreement shall be amended to pertain to the Parent Series B Stock
(and the securities which may be issued on conversion or exchange
thereof) in lieu of the Series B Stock.
(b) Exempt Voting Securities. Notwithstanding anything to
the contrary contained in this Agreement, Parent and Shareholder agree
that (i) the restrictions and obligations contained in Section 2 shall
not apply to any voting securities of Company acquired or held by the
State Board with respect to which Corporate Advisors does not have
sole or shared voting or dispositive power with respect thereto
pursuant to the Management Agreement, which voting securities shall
include Company Shares if such Shares are released from the custody
account maintained by Corporate Advisors on behalf of the State Board
pursuant to the Management Agreement, and (ii) the State Board shall
not be bound by the obligations or prohibitions set forth in Section
2(c); provided, however, that the foregoing shall not be deemed to be
a limitation of any of the obligations imposed by this Agreement upon
Corporate Advisors, acting on behalf of the State Board.
8. Termination. (a) The parties agree and intend that this
Stockholders Agreement be a valid and binding agreement enforceable
against the parties hereto and that damages and other remedies at law
for the breach of this Stockholders Agreement are inadequate. This
Stockholders Agreement may be terminated at any time prior to the
Closing Date by mutual written consent of the parties hereto and shall
be automatically terminated in the event that the Merger Agreement is
terminated in accordance with its terms.
(b) This Stockholders Agreement may also be terminated by
the Stockholders in their sole discretion in the event that (i) the
Effective Date shall not have occurred on or prior to the one-year
anniversary of the date hereof, (ii) Section 3.1(d) of the Merger
Agreement shall have been amended or modified, without the prior
written consent of the Stockholders, if such amendment or modification
is adverse to the interests of the Stockholders or (iii) any other
amendment or modification of the Merger Agreement shall have been made
without the prior written consent of the Stockholders which amendment
is adverse to the interests of the Stockholders with respect to the
transactions contemplated hereby or by the Merger Agreement.
9. Notices, Etc. All notices required by or otherwise with
respect to this Stockholders Agreement shall be in writing and shall
be deemed to have been duly given to any party when delivered
personally (by courier service or otherwise), or when delivered by
telecopy and confirmed by return telecopy, in each case to the
applicable addresses set forth below:
(a) if to Parent:
Mattel, Inc.
000 Xxxxxxxxxxx Xxxxxxxxx
Xx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxx Xxxxxxxxx, Esq.
General Counsel
Telecopy: (000) 000-0000
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
(b) If to Corporate Partners, Offshore Partners,
Corporate Advisors or the State Board:
c/o Corporate Partners, L.P.
Xxx Xxxxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxx
Telecopy: (000) 000-0000
with a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
10. Governing Law. This Stockholders Agreement shall be
governed by the laws of the State of Delaware without giving effect to
the principles of conflicts of laws thereof.
11. Counterparts. This Stockholders Agreement may be
executed in one or more counterparts, all of which shall be considered
one and the same and each of which shall be deemed an original.
12. Headings. The Section headings contained herein are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Stockholders Agreement.
IN WITNESS WHEREOF, each of the undersigned, intending to be
legally bound, has caused this Stockholders Agreement to be duly
executed and delivered on the date first set forth above.
MATTEL, INC.
By: /s/ Xxx Xxxxxxx
---------------
Name: Xxx Manosur
Title: President
CORPORATE PARTNERS, L.P.
CORPORATE OFFSHORE PARTNERS, L.P.
By: Corporate Advisors, L.P.,
General Partner
By: LPCP Corp., General Partner
By: /s/ Xxxxx Xxxxx
---------------
Name: Xxxxx Xxxxx
Title: Secretary
THE STATE BOARD OF ADMINISTRATION
OF FLORIDA
By: Corporate Advisors, L.P.,
Attorney in Fact
By: LFCP Corp., General Partner
By: /s/ Xxxxx Xxxxx
---------------
Name: Xxxxx Xxxxx
Title: Secretary
CORPORATE ADVISORS, L.P.
By: LFCP Corp., General Partner
By: /s/ Xxxxx Xxxxx
---------------
Name: Xxxxx Xxxxx
Title: Secretary
By executing this Stockholders Agreement in the space
provided below the Company hereby consents to the execution,
delivery and performance of this Stockholders Agreement by
each Stockholder and agrees that the same shall not
constitute a breach of any provision of the Stock Purchase
Agreement and acknowledges that the Stockholders shall
retain and be entitled to all rights under the Certificate
of Designation in the event of the termination of this
Stockholders Agreement prior to the occurrence of the Series
B Treatment.
TYCO TOYS, INC.
By: /s/ Xxxxx X. Xxxxxx
-------------------
Name: Xxxxx X. Xxxxxx
Title: Vice Chairman
SCHEDULE 1
Number of Shares
Name Of Tyco Series B
----------------------------- Preferred Stock
Corporate Partners, LP. 45,617*
Corporate Offshore
Partners, L.P. 3,249*
State Board of
Administration of Florida 4,765*
Total 53,631
-------------------
* Notwithstanding the foregoing, Corporate Advisors as
general partner of Corporate Partners and Offshore
Partners, and as investment manager over the Shares
owned by the State Board, which are held in a custody
account, may be deemed to have the power to vote or to
direct the vote, and to dispose or to direct the
disposition, of the Shares.
