EXHIBIT 99.4
SUPPORT AGREEMENT AMENDING AGREEMENT
THIS AMENDING AGREEMENT is made as of the 12th day of May, 1999,
BETWEEN:
MATTEL, INC.
a corporation governed by the laws of
the State of Delaware,
(hereinafter referred to as "Mattel"),
OF THE FIRST PART,
--and--
THE LEARNING COMPANY, INC.
a corporation governed by the laws of
the State of Delaware,
(hereinafter referred to as "TLC"),
OF THE SECOND PART,
--and--
SOFTKEY SOFTWARE PRODUCTS INC.,
a corporation governed by the laws of
the Province of Ontario,
(hereinafter referred to as "Softkey"),
OF THE THIRD PART.
WHEREAS TLC (under its predecessor name, "Softkey International Inc.") and
Softkey entered into a support agreement made as of the 4th day of February,
1994 (the "Original Support Agreement") making certain provisions and
establishing certain procedures relating to certain of Softkey's obligations in
respect of its Exchangeable Shares;
AND WHEREAS, pursuant to, among other things, the Share Provisions, the
Exchangeable Shares are currently exchangeable, on a one-for-one basis, for
shares of common stock in the capital of TLC;
AND WHEREAS pursuant to an agreement and plan of merger dated as of December
13, 1998 between Mattel and TLC (the "Merger Agreement"), it is proposed that
TLC merge with and into Mattel (the "Merger") with the result that, pursuant to
the Merger Agreement and in accordance with the Delaware General Corporation
Law, (i) the outstanding shares of common stock in the capital of TLC will be
changed and converted into and represent the right to receive shares of common
stock in the capital of Mattel and (ii) the separate corporate existence of TLC
will cease and Mattel will continue as the surviving corporation and will
succeed to and assume all of the rights and obligations of TLC, including
without limitation the rights and obligations of TLC under the Original Support
Agreement;
AND WHEREAS, following the Merger and pursuant to, among other things, the
Share Provisions, the Exchangeable Shares will be exchangeable for shares of
common stock in the capital of Mattel, on the basis of 1.2 shares of Mattel
common stock per Exchangeable Share (being the Exchange Ratio, as that term is
defined in and as such ratio is determined pursuant to the Merger Agreement);
AND WHEREAS, pursuant to section 2.7 of the Original Support Agreement, the
Board of Directors of Softkey has determined that the changes to be made to, or
in the rights of the holders of, the Exchangeable Shares simultaneously with
the Merger are the same as or economically equivalent to those changes to be
made to, or in the rights of the holders of, the shares of common stock of TLC
in connection with the Merger;
AND WHEREAS, pursuant to section 3.2 of the Original Support Agreement, as a
result of the Merger the Original Support Agreement must be amended and
modified as necessary in order that it applies with full force and effect,
mutatis mutandis, to the shares of common stock in the capital of Mattel
following the Merger and the parties to the Original Support Agreement are
required to execute and deliver this amending agreement giving effect to and
evidencing such necessary amendments and modifications;
AND WHEREAS Mattel and TLC propose to complete the Merger pursuant to the
Merger Agreement and in accordance with the Delaware General Corporation Law
immediately following the execution and delivery of this amending agreement by
the parties hereto;
AND WHEREAS, pursuant to section 3.5 of the Original Support Agreement, the
parties wish to make certain amendments and modifications to the Original
Support Agreement not inconsistent therewith and to, among other things,
correct certain clerical mistakes in the Original Support Agreement;
AND WHEREAS the board of directors of each of TLC and Softkey is of the
opinion that the amendments and modifications to be effected hereby will not be
prejudicial to the interests of the holders of the Exchangeable Shares;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by each of the parties hereto, the
parties hereby agree as follows:
ARTICLE 1
INTERPRETATION
1.1 "Hereto", "herein", "hereunder", "hereof" and similar expressions refer
to this amending agreement and not to any particular article, section or other
portion hereof and include any and every instrument supplemental or ancillary
hereto.
1.2 The division of this amending agreement into articles and sections is for
convenience of reference only and shall not affect the construction or
interpretation of this amending agreement.
1.3 All terms contained in this amending agreement, including the recitals
hereto, which are defined in the Original Support Agreement shall, for the
purposes hereof, have the meanings given to such terms in the Original Support
Agreement unless otherwise defined herein or unless the context otherwise
specifies or requires.
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ARTICLE 2
AMENDMENTS TO ORIGINAL SUPPORT AGREEMENT
The Original Support Agreement is hereby amended and modified, immediately
upon the Merger becoming effective under the Delaware General Corporation Law,
as follows:
2.1 Section 1.1 of the Original Support Agreement is hereby amended and
modified by adding the following sentence to the end of such section: "For all
purposes hereof, "Mattel" means Mattel, Inc., a corporation governed by the
laws of the State of Delaware, and any successor thereto, and "Mattel Common
Shares" means the shares of common stock in the capital of Mattel (together
with the accompanying rights, if any, to purchase shares of Series E Junior
Participating Preference Stock, par value U.S. $0.01 per share, in the capital
of Mattel, subject to adjustment as contemplated by such rights) and any other
securities into which such shares may be changed or converted."
2.2 Section 1.4 of the Original Support Agreement is hereby amended and
modified by deleting the words "Boston, Massachusetts" and replacing them with
the words "Los Angeles, California".
2.3 Each reference in Articles 2 and 3 of the Original Support Agreement to
"the Parent" is hereby deleted and replaced with "Mattel".
2.4 Section 2.7 of the Original Support Agreement is hereby amended and
modified as follows:
(a) by deleting the words "; provided that, for greater certainty, the
above restrictions shall not apply to any securities issued or
distributed by the Parent in order to give effect to and to
consummate the Spinnaker-WordStar-SoftKey Transaction in the manner
contemplated by, and in accordance with, the Combination Agreement"
in section 2.7(a); and
(b) by deleting the words "; provided that, for greater certainty, the
above restrictions shall not apply to any action taken by the
Parent in order to give effect to and to consummate the Spinnaker-
WordStar-SoftKey Transaction in the manner contemplated by, and in
accordance with, the Combination Agreement" in section 2.7(b).
2.5 Each reference in Articles 2 and 3 of the Original Support Agreement to
"Parent Common Shares" is hereby deleted and replaced with "Mattel Common
Shares".
2.6 The word "above" in the second to last line of section 2.7(d)(ii) and in
the second to last line of section 2.7(d)(iii) of the Original Support
Agreement is hereby deleted and, in each case, replaced with the word "below".
2.7 Section 3.2 of the Original Support Agreement is hereby amended and
modified by adding the words ", notwithstanding the provisions of section 3.4,"
after the words "changed and" in the second to last line of section 3.2.
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2.8 Sections 3.9(a) and (b) of the Original Support Agreement are hereby
deleted and replaced with the following:
(a) if to Mattel or Softkey, c/o Mattel at:
333 Continental Boulevard
El Segundo, CA 90245-5012,
U.S.A.
Attention: General Counsel
Telecopy: (310) 252-3671
ARTICLE 3
ASSUMPTION OF OBLIGATIONS
3.1 Mattel hereby confirms, covenants and agrees that, immediately upon the
Merger becoming effective under the Delaware General Corporation Law, Mattel
has succeeded to the position of TLC under the Original Support Agreement as
amended and modified hereby and, without limitation of the foregoing, that it
has succeeded to and assumed and is bound by all of the benefits, rights,
liabilities, covenants and obligations of TLC under the Original Support
Agreement as amended and modified hereby.
ARTICLE 4
GENERAL
4.1 This amending agreement is supplementary to and amends and modifies the
Original Support Agreement as herein set forth. Immediately upon the Merger
becoming effective under the Delaware General Corporation Law, the Original
Support Agreement shall thereafter be read in conjunction with this amending
agreement and the Original Support Agreement and this amending agreement shall
have effect so far as is practicable as if all the provisions of the Original
Support Agreement and this amending agreement were contained in one instrument.
4.2 This amending agreement and the Original Support Agreement constitute the
entire agreement between the parties relating to the subject matter hereof and
thereof. This amending agreement supersedes all prior agreements and
understandings of the parties, whether oral or written, including the Original
Support Agreement, with respect to the portions of the Original Support
Agreement hereby amended and modified. There are no general or specific
representations, warranties or other agreements by or among the parties in
connection with the entering into of this amending agreement or the subject
matter hereof except as specifically set forth herein.
4.3 This amending agreement may be executed in several counterparts, each of
which when so executed shall be deemed to be an original, and such counterparts
together shall constitute one and the same instrument.
4.4 This amending agreement shall be construed and enforced in accordance
with the laws of the Province of Ontario and the laws of Canada applicable
therein.
4.5 Mattel agrees that any action or proceeding arising out of or relating to
this amending agreement may be instituted in the courts of Ontario, waives any
objection which it may now or hereafter have to the venue of any such action or
proceeding, irrevocably submits to the jurisdiction
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of the said courts in any such action or proceeding, agrees to be bound by any
judgment of the said courts and not to seek, and hereby waives, any review of
the merits of any such judgment by the courts of any other jurisdiction and
hereby appoints Softkey at its registered office in the Province of Ontario as
Mattel's attorney for service of process.
4.6 This amending agreement shall be binding upon and enure to the benefit of
the parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF the parties hereto have executed this amending agreement
as of the date first referred to above.
MATTEL, INC.
By: /s/ Robert Normile
_________________________________
Robert Normile
__________________________________
THE LEARNING COMPANY, INC.
By: /s/ R. Scott Murray
_________________________________
R. Scott Murray
__________________________________
SOFTKEY SOFTWARE PRODUCTS INC.
By: /s/ R. Scott Murray
_________________________________
R. Scott Murray
__________________________________
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