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 Acquisition Corp., a Delaware
corporation and a wholly owned subsidiary of Parent ("Sub"), and Tyco Toys,
Inc., a Delaware corporation (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 parties thereto; and
WHEREAS, the Board of Directors of each of the parties to
the Merger Agreement has authorized the amendment of the Merger Agreement in
the manner and subject to the conditions contemplated hereby; and
WHEREAS, the parties hereto have agreed to amend the Merger
Agreement in certain respects as specified in this Amendment 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 Agreement 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 parties hereto
agree that the Merger Agreement shall be amended in the manner provided for
herein (the "Amendments"), which Amendments 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 Company shall thereupon cease, and the name
of Parent, as the
surviving corporation in the Merger (the "Surviving Corporation"),
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 Certificate 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 "Company Series C Preferred
Stock") issued and outstanding immediately prior to the Effective
Date shall be converted into a share of Series C Mandatorily
Convertible Redeemable 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 Preferred 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 capital
stock of Sub shall continue to be issued and outstanding 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 entirety 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,
Company 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 surrender to the Exchange Agent of one or
more certificates representing such stock (or in the case of Company
Restricted Stock Units and Company Stock Options, the relevant
agreement or other evidence of right and interest in such Restricted
Stock Units or Company Stock Options) ("Certificates") for
cancellation, certificates representing 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
options are converted in the Merger and cash in consideration of
fractional shares as provided in Section 3.4. Such shares of Parent
Common Stock, Parent Series B Preferred 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 dividends 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 pursuant to this Merger Agreement until such
persons surrender 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
respect 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 Common Stock, Parent Series C Preferred Stock or
Parent Series B Preferred Stock, as the case may be, are to be issued
in a name other than that in which the Certificates
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representing shares of Company Common Stock, Company Series 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 Exchange Agent any transfer or other taxes
required by reason 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 Certificate surrendered, or
shall establish to the satisfaction 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 Preferred 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 entirety 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 exchange 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 otherwise have
been entitled to a fraction of a share of Parent Common Stock upon
surrender of Certificates for exchange 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 pursuant 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, Company 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 commissions,
transfer taxes and other out-of-pocket transaction 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
Exchange 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 approval 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 obligation 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 availability of
equitable remedies, including specific performance, 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 necessary to authorize
this Merger Agreement and the transactions 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 contract,
license, franchise, permit, order, decree, concession, lease,
instrument, judgment, statute, law, ordinance, rule or regulation
applicable to the Company 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
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obligation or the loss of a material benefit, by its executing and
carrying out this Merger Agreement, other than, in the case of clause
(ii) only, (A) any breaches, violations, defaults, terminations,
cancellations, accelerations or losses which, either singly or in the
aggregate, will not have a Company Material Adverse Effect or prevent
the consummation of the transactions contemplated 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
contemplated thereby, in connection, or in compliance, with the
provisions of the HSR Act, the Securities Act, the Exchange Act, the
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 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 obtain 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 Company 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 consistent with the amendments adopted in this Amendment
Agreement.
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 parties hereto in
separate counterparts, each of which shall constitute 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 contained 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