EXHIBIT 1
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT TO AGREEMENT AND PLAN OF MERGER, dated
as of November 22, 1996 (the "Amendment Agreement"), is among
Mattel, Inc., a Delaware corporation ("Parent"), Truck Acquisi-
tion Corp., a Delaware corporation and a wholly owned subsid-
iary of Parent ("Sub"), and Tyco Toys, Inc., a Delaware cor-
poration (the "Company").
WHEREAS, the parties hereto have previously entered
into that certain Agreement and Plan of Merger, dated as of
November 17, 1996 (the "Merger Agreement"); and
WHEREAS, Section 9.3 of the Merger Agreement provides
that the Merger Agreement may be amended, pursuant to action of
the respective Board of Directors of each of the parties
thereto, by an instrument in writing signed by each of the par-
ties thereto; and
WHEREAS, the Board of Directors of each of the par-
ties to the Merger Agreement has authorized the amendment of
the Merger Agreement in the manner and subject to the condi-
tions contemplated hereby; and
WHEREAS, the parties hereto have agreed to amend the
Merger Agreement in certain respects as specified in this Amen-
dment Agreement;
NOW, THEREFORE, in consideration of the premises and
representations, warranties, covenants and agreements set forth
herein, the parties hereby amend and supplement the Merger Agr-
eement as follows:
SECTION 1. Defined Terms. Except as otherwise
set forth herein, capitalized terms used herein and not defined
shall have the meaning provided in the Merger Agreement.
SECTION 2. Effectiveness of Amendments. The par-
ties hereto agree that the Merger Agreement shall be amended in
the manner provided for herein (the "Amendments"), which Amend-
ments shall be effective upon execution of this Amendment
Agreement (the "Amendment Effective Time").
SECTION 3. The Merger. Section 1.1 of the
Merger Agreement is hereby amended and restated in its entirety
to provide as follows:
Section 1.1 The Merger. Upon the terms and
subject to the conditions hereof, on the Effective Date
(as defined below in Section 1.2), the Company shall be
merged into Parent and the separate existence of the Com-
pany shall thereupon cease, and the name of Parent, as the
surviving corporation in the Merger (the "Surviving Corpo-
ration"), shall remain "Mattel, Inc."
SECTION 4. The Surviving Corporation. Sections
2.1, 2.2 and 2.3 of the Merger Agreement are hereby amended and
restated in their entirety to provide as follows:
Section 2.1 Certificate of Incorporation. The
Certificate of Incorporation of Parent shall be the Cer-
tificate of Incorporation of the Surviving Corporation
after the Effective Date, and thereafter may be amended in
accordance with its terms and as provided by law and this
Merger Agreement.
Section 2.2 By-Laws. The By-laws of Parent as
in effect on the Effective Date shall be the By-laws of
the Surviving Corporation.
Section 2.3 Board of Directors; Officers. The
directors and officers of Parent immediately prior to the
Effective Date shall be the directors and officers of the
Surviving Corporation until their respective successors
are duly elected and qualified.
SECTION 5. Conversion of Shares. Paragraph (c)
of Section 3.1 of the Merger Agreement is hereby amended and
restated in its entirety to provide as follows:
(c) Each of the remaining outstanding shares of
Series C Mandatorily Convertible Redeemable Preferred
Stock, par value $.10 per share, of the Company (the "Com-
pany Series C Preferred Stock") issued and outstanding im-
mediately prior to the Effective Date shall be converted
into a share of Series C Mandatorily Convertible Redeem-
able Preferred Stock, $1.00 par value, of Parent ("Parent
Series C Preferred Stock"), with substantially the same
rights and preferences as correspond to the Company Series
C Preferred Stock as contemplated by Section III(E) of the
Certificate of Designations for the Company Series C Pre-
ferred Stock. Appropriate alterations to reflect the
transactions contemplated by this Agreement will be made
at the Effective Date to the depositary share agreement
relating to the Company Series C Preferred Stock.
SECTION 6. Conversion of Shares. Paragraph (f)
of Section 3.1 of the Merger Agreement is hereby amended and
restated in its entirety to provide as follows:
(f) Each issued and outstanding share of capi-
tal stock of Sub shall be continue to be issued and out-
standing and shall in all respects be unaffected by the
Merger.
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SECTION 7. Issuance of Shares. Section 3.2 of
the Merger Agreement is hereby amended and restated in its en-
tirety to provide as follows:
Section 3.2. Parent to Make Certificates Available.
Prior to the Effective Date, Parent shall select The First
National Bank of Boston or such other person or persons
reasonably satisfactory to the Company to act as Exchange
Agent for the Merger (the "Exchange Agent"). As soon as
practicable after the Effective Date, Parent shall make
available, and each holder of Company Common Stock, Com-
pany Series B Preferred Stock, Company Series C Preferred
Stock, Company Stock Options or Company Restricted Stock
Units to be converted pursuant to Section 3.1 (each, a
"Company Holder") will be entitled to receive, upon sur-
render to the Exchange Agent of one or more certificates
representing such stock (or in the case of Company Re-
stricted Stock Units and Company Stock Options, the rel-
evant agreement or other evidence of right and interest in
such Restricted Stock Units or Company Stock Options)
("Certificates") for cancellation, certificates represent-
ing the number of shares of Parent Common Stock, Parent
Series B Preferred Stock or Parent Series C Preferred
Stock, as the case may be, into which such shares or op-
tions are converted in the Merger and cash in consider-
ation of fractional shares as provided in Section 3.4.
Such shares of Parent Common Stock, Parent Series B Pre-
ferred Stock or Parent Series C Preferred Stock issued in
the Merger shall each be deemed to have been issued at the
Effective Date.
SECTION 8. Dividends; Transfer Taxes. Section
3.3 of the Merger Agreement is hereby amended and restated in
its entirety to provide as follows:
Section 3.3. Dividends; Transfer Taxes. No divi-
dends or other distributions that are declared or made on
Parent Common Stock will be paid to persons entitled to
receive certificates representing Parent Common Stock pur-
suant to this Merger Agreement until such persons sur-
render their Certificates representing Company Common
Stock, Company Stock Options or Company Restricted Stock
Units, as the case may be. Upon such surrender, there
shall be paid to the person in whose name the certificates
representing such Parent Common Stock shall be issued any
dividends or other distributions which shall have become
payable with respect to such Parent Common Stock in re-
spect of a record date after the Effective Date. In no
event shall the person entitled to receive such dividends
be entitled to receive interest on such dividends. In the
event that any certificates for any shares of Parent Com-
mon Stock, Parent Series C Preferred Stock or Parent Se-
ries B Preferred Stock, as the case may be, are to be is-
sued in a name other than that in which the Certificates
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representing shares of Company Common Stock, Company Se-
ries B Preferred Stock, Company Series C Preferred Stock,
Company Stock Options or Company Restricted Stock Units,
as the case may be, surrendered in exchange therefor are
registered, it shall be a condition of such exchange that
the person requesting such exchange shall pay to the Ex-
change Agent any transfer or other taxes required by rea-
son of the issuance of certificates for such shares of
Parent Common Stock, Parent Series C Preferred Stock or
Parent Series B Preferred Stock, as the case may be in a
name other than that of the registered holder of the Cer-
tificate surrendered, or shall establish to the satisfac-
tion of the Exchange Agent that such tax has been paid or
is not applicable. Notwithstanding the foregoing, neither
the Exchange Agent nor any party hereto shall be liable to
a Company Holder for any shares of Parent Common Stock or
dividends thereon or any shares of Parent Series B Pre-
ferred Stock or Parent Series C Preferred Stock, as the
case may be, delivered to a public official pursuant to
any applicable escheat laws.
SECTION 9. No Fractional Shares. Section 3.4 of
the Merger Agreement is hereby amended and restated in its en-
tirety to provide as follows:
Section 3.4. No Fractional Shares. No certificates
or scrip representing less than one full share of Parent
Common Stock shall be issued upon the surrender for ex-
change of Certificates representing Company Common Stock,
Company Stock Options or Company Restricted Stock Units
pursuant to Section 3.1(b), (g) or (h). In lieu of any
such fractional share, each Company Holder who would oth-
erwise have been entitled to a fraction of a share of Par-
ent Common Stock upon surrender of Certificates for ex-
change pursuant to Section 3.1(b), (g) or (h) shall be
paid upon such surrender cash (without interest) in an
amount equal to such holder's proportionate interest in
the net proceeds from the sale or sales in the open market
by the Exchange Agent, on behalf of all such holders, of
the aggregate fractional Parent Common Stock issued pursu-
ant to this Section 3.4. As soon as practicable following
the Effective Date, the Exchange Agent shall determine the
excess of (i) the number of full shares of Parent Common
Stock delivered to the Exchange Agent by Parent over (ii)
the aggregate number of full shares of Parent Common Stock
to be distributed to holders of Company Common Stock, Com-
pany Stock Options or Company Restricted Stock Units (such
excess being herein called the "Excess Shares"), and the
Exchange Agent, as agent for the former Company Holders,
shall sell the Excess Shares at the prevailing prices on
the NYSE. The sale of the Excess Shares by the Exchange
Agent shall be executed on the NYSE through one or more
member firms of the NYSE and shall be executed in round
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lots to the extent practicable. Parent shall pay all com-
missions, transfer taxes and other out-of-pocket transac-
tion costs, including the expenses and compensation of the
Exchange Agent, incurred in connection with such sale of
Excess Shares. Until the net proceeds of such sale have
been distributed to the former Company Holders, the Ex-
change Agent will hold such proceeds in trust for such
former stockholders (the "Fractional Securities Fund").
As soon as practicable after the determination of the
amount of cash to be paid to former Company Holders in
lieu of any fractional interests, the Exchange Agent shall
make available in accordance with this Merger Agreement
such amounts to such former stockholders.
SECTION 10. Representations and Warranties of the
Company. Section 5.4 of the Merger Agreement is hereby amended
and restated in its entirety to provide as follows:
Section 5.4 Authority Relative to this Merger
Agreement. The Company has the corporate power to enter
into this Merger Agreement, subject to the requisite ap-
proval of this Merger Agreement by the holders of Company
Common Stock, Company Series B Preferred Stock and Company
Series C Preferred Stock voting together as a single
class, and to carry out its obligations hereunder. The
execution and delivery of this Merger Agreement and the
consummation of the transactions contemplated hereby have
been duly authorized by the Company's Board of Directors.
This Merger Agreement constitutes a valid and binding ob-
ligation of the Company enforceable in accordance with its
terms except as enforcement may be limited by bankruptcy,
insolvency or other similar laws affecting the enforcement
of creditors' rights generally and except that the avail-
ability of equitable remedies, including specific perfor-
mance, is subject to the discretion of the court before
which any proceeding therefor may be brought. Except for
the requisite approval of the holders of Company Common
Stock, Company Series B Preferred Stock and Company Series
C Preferred Stock voting together as a class, no other
corporate proceedings on the part of the Company are nec-
essary to authorize this Merger Agreement and the transac-
tions contemplated hereby. The Company is not subject to
or obligated under (i) any charter, by-law, indenture or
other loan document provision (other than as set forth in
the Company Disclosure Schedule) or (ii) any other con-
tract, license, franchise, permit, order, decree, conces-
sion, lease, instrument, judgment, statute, law, ordi-
nance, rule or regulation applicable to the Company or any
of its subsidiaries or their respective properties or as-
sets 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
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obligation or the loss of a material benefit, by its ex-
ecuting and carrying out this Merger Agreement, other
than, in the case of clause (ii) only, (A) any breaches,
violations, defaults, terminations, cancellations, ac-
celerations or losses which, either singly or in the ag-
gregate, will not have a Company Material Adverse Effect
or prevent the consummation of the transactions contem-
plated hereby and (B) the laws and regulations referred to
in the next sentence. Except as referred to herein or,
with respect to the Merger or the transactions contem-
plated thereby, in connection, or in compliance, with the
provisions of the HSR Act, the Securities Act, the Ex-
change Act, the Foreign Laws and the environmental, cor-
poration, securities or blue sky laws or regulations of
the various states, no filing or registration with, or au-
thorization, consent or approval of, any public body or
authority is necessary for the consummation by the Company
of the Merger or the other transactions contemplated
hereby, other than filings, registrations, authorizations,
consents or approvals the failure of which to make or ob-
tain would not have a Company Material Adverse Effect or
prevent the consummation of the transactions contemplated
hereby and thereby.
SECTION 11. Conditions Precedent. Paragraph (a)
of Section 8.1 of the Merger Agreement is hereby amended and
restated in its entirety to provide as follows:
(a) This Merger Agreement and the transactions
contemplated hereby shall have been approved and adopted
by the requisite vote of the holders of the Company Common
Stock, the Company Series B Preferred Stock and the Com-
pany Series C Preferred Stock voting together as a class.
SECTION 12. Conditions Precedent. Paragraph (b)
of Section 8.1 of the Merger Agreement is hereby amended and
restated in its entirety to provide as follows:
(b) The Parent Common Stock and the Parent Series C
Preferred Stock issuable in the Merger shall have been
authorized for listing on the NYSE upon official notice of
issuance.
SECTION 13. Conditions Precedent. Paragraph (e)
of Section 8.3 of the Merger Agreement is hereby amended by
inserting a period after the phrase "Company Material Adverse
Effect" and deleting the remainder of the such paragraph.
SECTION 14. Conditions Precedent. Paragraph (f)
of Section 8.3 of the Merger Agreement is hereby amended and
restated in its entirety to provide as follows:
(f) Notwithstanding paragraph 8.3(e), the
Company shall not be required to obtain a Consent with
respect to the agreement set forth on Schedule 8.3(f).
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SECTION 15. Conforming Changes. The parties
hereto agree to make such other conforming changes to the
Merger Agreement as are necessary to make each provision con-
sistent with the amendments adopted in this Amendment Agree-
ment.
SECTION 16. Representations and Warranties of this
Amendment Agreement.
(a) Parent and Sub represent and warrant to the Company
that, as to the matters set forth in Sections 4.4 and 4A.3 of
the Merger Agreement, such matters, mutatis mutandis, are true
and correct with respect to this Amendment Agreement.
(b) The Company represents and warrants to Parent that,
as to the matters set forth in Sections 5.4 of the Merger
Agreement, as amended hereby, such matters, mutatis mutandis,
are true and correct with respect to this Amendment Agreement.
SECTION 17. Miscellaneous.
(a) This Amendment Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware
without regard to its rules of conflict of laws.
(b) This Amendment Agreement may be executed by the par-
ties hereto in separate counterparts, each of which shall con-
stitute one and the same original.
(c) Except as provided in this Amendment Agreement, the
Merger Agreement remains in full force and effect without any
amendment or alteration.
(d) The provisions of Section 10.2, 10.4 and 10.5 con-
tained in the Merger Agreement are hereby incorporated herein
by reference and made applicable, mutatis mutandis, to this
Amendment Agreement.
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IN WITNESS WHEREOF, the parties have executed this
Amendment Agreement and caused the same to be duly delivered on
their behalf as of the day and year first written above.
MATTEL, INC.
By /s/ Ned Mansour
Name: Ned Mansour
Title: President of
Corporate
Operations
TRUCK ACQUISITION CORP.
By /s/ Ned Mansour
Name: Ned Mansour
Title: President
TYCO TOYS, INC.
By /s/ Harry J. Pearce
Name: Harry J. Pearce
Title: Vice Chairman
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