EXHIBIT 4.2
AMENDMENT TO COMMON STOCK RIGHTS AGREEMENT
Amendment, dated as of June 4, 2004 (the "Amendment"), to the Common Stock
Rights Agreement, dated as of November 19, 2001 (the "Rights Agreement"),
between The First Years Inc., a Massachusetts corporation (the "Company"), and
Equiserve Trust Company, N.A., a national banking association having its
principal offices in Canton, Massachusetts (the "Rights Agent").
W I T N E S S E T H
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company may
prior to the Distribution Date (as defined in the Rights Agreement) supplement
or amend the Rights Agreement without the approval of any holders of the Rights
(as defined in the Rights Agreement); and
WHEREAS, the Company now desires to amend the Rights Agreement as set
forth in this Amendment, and pursuant to Section 27 of the Rights Agreement, the
Company hereby directs that the Rights Agreement should be amended as set forth
in this Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereby agree as follows:
1. Amendments to Section 1.
(a) Section 1 of the Rights Agreement is hereby amended by adding
the following definitions:
(mm) "Merger" shall have the meaning set forth in the Merger
Agreement.
(nn) "Merger Agreement" shall mean the Agreement and Plan of
Merger, dated as of June 4, 2004, by and among the Company, Parent
and MergerCo, as may be amended from time to time.
(oo) "MergerCo" shall mean RBVD Acquisition Corp., a
Massachusetts corporation.
(pp) "Parent" shall mean RC2 Corporation, a Delaware
corporation.
(qq) "Voting Agreements" shall mean those certain Voting
Agreements entered into as of June 4, 2004, by and between Parent
and each of Xxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxx, Xxxxxx Xxxxxx,
Xxxxxxxx Xxxxx and Xxxx X. Page, as the same may be amended from
time to time.
(b) The definition of "Acquiring Person" in Section 1(a) of the
Rights Agreement is hereby amended by inserting the following sentence at the
end thereof:
"Notwithstanding the foregoing or any other provision of this
Agreement to the contrary, neither (i) the execution and delivery of
the Merger Agreement, (ii) the consummation of the Merger, (iii) the
execution and delivery of the Voting Agreements, and (iv) the
exercise by the parties thereto of their respective rights under the
Voting Agreements, shall be deemed to result in Parent, MergerCo or
any other Person becoming an Acquiring Person."
(c) The definition of "Distribution Date" in Section 1(q) of the
Rights Agreement is hereby amended by inserting the following sentence at the
end thereof:
"Notwithstanding anything in this Agreement to the contrary, a
Distribution Date shall not be deemed to have occurred as a result
of (i) the execution and delivery of the Merger Agreement, (ii) the
consummation of the Merger, (iii) the execution and delivery of the
Voting Agreements, or (iv) the exercise by the parties thereto of
their respective rights under the Voting Agreements."
2. Amendment to Section 7(a). The first sentence of Section 7(a) of the
Rights Agreement is hereby amended to read as follows:
"(a) Subject to Section 7(e) hereof, the registered holder of any
Rights Certificate may exercise the Rights evidenced thereby (except
as otherwise provided herein including, without limitation, the
restrictions set forth in Section 9(e), Section 11(a)(iii) and
Section 23(a) hereof) in whole or in part at any time after the
Distribution Date upon surrender of the Rights Certificate, with the
form of election to purchase set forth on the reverse side thereof
and the certificate contained therein completed and duly executed,
to the Rights Agent at the office of the Rights Agent designated for
such purpose, together with payment of the aggregate Purchase Price
with respect to the total number of Common Stock (or other
securities, cash or other assets, as the case may be) as to which
such surrendered Rights are then exercisable, at or prior to the
earlier of (i) the Final Expiration Date, (ii) the time at which the
Rights are redeemed as provided in Section 23 hereof (the
"Redemption Date"), (iii) the time at which the Rights expire
pursuant to Section 13(d) hereof, (iv) the time at which such Rights
are exchanged as provided in Section 24 hereof and (v) immediately
prior to the Effective Time (as defined in the Merger Agreement)
(the earlier of (i), (ii), (iii), (iv) or (v) being herein referred
to as the "Expiration Date")."
3. Amendment to Section 21. Section 21 of the Rights Agreement is hereby
amended by inserting the following sentence after the first sentence thereof:
"In the event the transfer agency relationship in effect between the
Company and the Rights Agent terminates, the Rights Agent will be
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deemed to resign automatically on the effective date of such
termination; and any required notice will be sent by the Company."
4. Addition of Section 35. The Rights Agreement is hereby amended by
adding the following Section 35:
"Section 35. Force Majeure. Notwithstanding anything to the contrary
contained herein, the Rights Agent shall not be liable for any
delays or failures in performance resulting from acts beyond its
reasonable control including, without limitation, acts of God,
terrorist acts, shortage of supply, breakdowns or malfunctions,
interruptions or malfunction of computer facilities, or loss of data
due to power failures or mechanical difficulties with information
storage or retrieval systems, labor difficulties, war, or civil
unrest."
5. Termination of Amendment. Upon the termination of the Merger Agreement
in accordance with its terms and without any further action on the part of any
of the parties hereto, as of the date of such termination, this Amendment shall
become null and void and of no further force or effect.
6. Effectiveness. This Amendment shall be deemed effective as of the date
first above written, as if executed on such date. Except as expressly set forth
herein, this Amendment shall not by implication or otherwise alter, modify,
amend or in any way affect any of the terms, conditions, obligations, covenants
or agreements contained in the Rights Agreement, all of which are ratified and
affirmed in all respects and shall continue in full force and effect and shall
be otherwise unaffected.
7. Governing Law. This Amendment shall be deemed to be a contract made
under the laws of the Commonwealth of Massachusetts and for all purposes shall
be governed by and construed in accordance with the laws of the Commonwealth of
Massachusetts applicable to contracts to be made and performed entirely therein.
8. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall for all purposes be deemed an original, and
all of which together shall constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
Common Stock Rights Agreement to be duly executed as of the day and year first
above written.
THE FIRST YEARS INC.
By: /s/ Xxxxx Xxxxxx
----------------------------
Name: Xxxxx Xxxxxx
Title: Vice President and General Counsel
EQUISERVE TRUST COMPANY, N.A.
By: /s/ Xxxxxxxx Xxxxxxxx
----------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Managing Director
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