EXHIBIT 4.5
THE LEARNING COMPANY, INC.,
MATTEL, INC.
AND
STATE STREET BANK AND TRUST COMPANY,
as Trustee
SECOND SUPPLEMENTAL INDENTURE
Dated as of May 13, 1999
to
INDENTURE
Dated as of October 16, 1995
SECOND SUPPLEMENTAL INDENTURE dated as of May 13, 1999, among THE LEARNING
COMPANY, INC., a Delaware corporation (the "Company"), MATTEL, INC., a Delaware
corporation ("Mattel"), and STATE STREET BANK AND TRUST COMPANY, a
Massachusetts banking corporation (the "Trustee"). Capitalized terms used and
not otherwise defined herein shall have the respective meanings assigned to
them in the Indenture referenced below.
W I T N E S S E T H :
WHEREAS, the Company (under its former name, SoftKey International Inc.) and
the Trustee have heretofore executed and delivered a certain Indenture, dated
as of October 16, 1995, and a First Supplemental Indenture, dated as of
November 22, 1995 (as so amended, the "Indenture"), relating to the Company's 5
1/2% Senior Convertible Notes Due 2000 (the "Notes");
WHEREAS, the Company and Mattel have heretofore executed and delivered a
certain Agreement and Plan of Merger, dated as of December 13, 1999 (the
"Merger Agreement"), pursuant to which the Company will be merged (the
"Merger") with and into Mattel, with Mattel as the surviving corporation;
WHEREAS, pursuant to the Merger Agreement, upon consummation of the Merger,
each issued and outstanding share of common stock of the Company (the "Common
Stock") will be converted into and represent the right to receive shares of
common stock of Mattel;
WHEREAS, Section 12.1 of the Indenture permits the Company to merge with or
into another corporation if certain terms and conditions are satisfied;
WHEREAS, Section 12.2 of the Indenture provides that in case of any such
merger and upon the assumption by the Successor Company, by supplemental
indenture, of the due and
punctual payment of the principal of, premium, if any, and interest on all of
the Notes and the due and punctual performance of all of the covenants and
conditions of the Indenture to be performed by the Company, such Successor
Company shall succeed to and be substituted for the Company, with the same
effect as if it had been named in the Indenture as the party of the first part,
and that the person named as the "Company" in the first paragraph of the
Indenture may be dissolved, wound up and liquidated at any time thereafter and
shall be released from its liabilities as obligor and maker of the Notes and
from its obligations under the Indenture;
WHEREAS, Section 15.6 of the Indenture provides that upon any merger of the
Company with another corporation as a result of which holders of Common Stock
shall be entitled to receive stock, securities or other property and assets
(including cash) with respect to or in exchange for such Common Stock, then the
successor corporation shall execute with the Trustee a supplemental indenture
providing that such Note shall be convertible into the kind and amount of
shares of stock and other securities or property or assets (including cash)
receivable upon such merger by a holder of a number of shares of Common Stock
issuable upon conversion of such Notes immediately prior to such merger, and
that such supplemental indenture shall provide for adjustments which shall be
as nearly equivalent as may be practicable to the adjustments provided for in
Article XV of the Indenture;
WHEREAS, Section 11.1(c) of the Indenture provides, among other things, that,
without the consent of the holders of the Notes, the Company, when authorized
by a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental to the Indenture to evidence the succession of another
person to the Company, or successive successions, and the assumption by the
Successor Company of the covenants, agreements and obligations of the Company
pursuant to Article XII of the Indenture;
WHEREAS, the execution and delivery of this Second Supplemental Indenture has
been authorized by a Board Resolution of the Company, by resolutions adopted by
the board of directors of Mattel, and by the Trustee; and
WHEREAS, all conditions precedent and requirements necessary to make this
Second Supplemental Indenture a valid and legally binding instrument in
accordance with its terms have been complied with, performed and fulfilled and
the execution and delivery hereof have been in all respects duly authorized.
NOW, THEREFORE, each party, intending to be legally bound hereby, agrees as
follows for the benefit of the other parties and for the equal and ratable
benefit of all holders of the Notes:
ARTICLE I
ASSUMPTION OF OBLIGATIONS
SECTION 1.1. Mattel hereby assumes, from and after the Effective Time, all
the obligations of the Company under the Indenture and the Notes, including,
but not limited to, the due and punctual payment of the principal of, premium,
if any, and interest on all of the
Notes and the due and punctual performance of all of the covenants and
conditions of the Indenture to be performed by the Company.
ARTICLE II
AMENDMENTS
SECTION 2.1. The following definition shall be added to Section 1.1 of the
Indenture, after the definition of "DWAC":
"Effective Time" has the meaning ascribed to it in that certain Agreement and
Plan of Merger, dated as of December 13, 1998, between Mattel, Inc. and The
Learning Company, Inc.
SECTION 2.2. All references to "SoftKey International Inc." contained in the
Indenture (including any exhibit, annex or attachment thereto, but excluding
the signature page) and relating to any time period subsequent to the Effective
Time, are hereby deleted and references to Mattel, Inc. are inserted in lieu
thereof.
SECTION 2.3. Section 15.1 of the Indenture is hereby amended by deleting
Section 15.1 in its entirety and substituting the following:
"Section 15.1 Right to Convert. Subject to and upon compliance with the
provisions of this Indenture, the holder of any Note shall have the right, at
his option, at any time after 60 days following the latest date of original
issuance of the Notes and prior to the close of business on November 1, 2000
(except that, with respect to any Note or portion of a Note which shall be
called for redemption or delivered for repurchase, such right shall terminate,
except as provided in the fourth paragraph of Section 15.2, at the close of
business on the last Trading Day prior to the date fixed for redemption of such
Note or portion of a Note unless the Company shall default in payment due upon
redemption thereof) to convert the principal amount of any such Note, or any
portion of such principal amount which is $1,000 or an integral multiple
thereof, into that number of fully paid and nonassessable shares of Common
Stock (as such shares shall then be constituted) obtained by dividing the
principal amount of the Note or portion thereof surrendered for conversion by
the Conversion Price in effect at such time and multiplying the resulting
number of shares by , by surrender of the Note so to be converted in
whole or in part in the manner provided in Section 15.2. A holder of Notes is
not entitled to any rights of a holder of Common Stock until such holder has
converted his Notes to Common Stock, and only to the extent such Notes are
deemed to have been converted to Common Stock under this Article XV."
SECTION 2.4. The first paragraph of Section 16.4 of the Indenture is hereby
amended by deleting the phrase "SoftKey International Inc., Xxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxx, XX 00000," in its entirety and substituting the phrase
"Mattel, Inc., 000 Xxxxxxxxxxx Xxxxxxxxx, Xx Xxxxxxx, XX 00000,".
ARTICLE III
MISCELLANEOUS
SECTION 3.1. Except to the extent specifically provided therein, no provision
of this Second Supplemental Indenture or any future supplemental indenture is
intended to modify, and the parties do hereby adopt and confirm, the provisions
of Section 318(c) of the Trust Indenture Act of 1939, as amended, which amend
and supersede provisions of the Indenture, as amended by this Second
Supplemental Indenture.
SECTION 3.2. Nothing in this Second Supplemental Indenture is intended to or
shall provide any rights to any parties other than those expressly contemplated
by this Second Supplemental Indenture.
SECTION 3.3. This Second Supplemental Indenture shall be deemed to be a
contract made under the substantive laws of New York and for all purposes shall
be construed in accordance with the substantive laws of New York without regard
to the principles of conflicts of laws.
SECTION 3.4. This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
SECTION 3.5. Except as expressly modified hereby, all the provisions of the
Indenture are and shall continue to be in full force and effect. Each reference
in the Indenture to "this Indenture", "hereunder", "hereof" and words of like
import referring to the Indenture and each reference in any other transaction
document relating to the Indenture shall mean the Indenture as amended hereby.
SECTION 3.6. This Second Supplemental Indenture shall become a legally
effective and binding instrument upon the later of (i) execution and delivery
hereof by all parties hereto and (ii) the Effective Time.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested all as of the day and year first above written.
THE LEARNING COMPANY, INC.
By __________________________________
Name:
Title:
Attest:
_____________________________________
MATTEL, INC.
By __________________________________
Name:
Title:
Attest:
_____________________________________
STATE STREET BANK AND
TRUST COMPANY,
as Trustee
By __________________________________
Name:
Title:
Attest:
_____________________________________
